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Trump Sold Grievance and America Liked What He Was Selling

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Once Trump got everyone hooked on his grievance drug, Merrick Garland was never going to make a difference.

I have tried, over and over, to explain how the investigation into Trump and his co-conspirators proceeded. More recently, I’ve explained how you couldn’t have charged Trump with insurrection — the only thing that would have disqualified him from running — until after May 2023, and had Jack Smith done so, it would have ended up exactly where we are here, with John Roberts delaying everything until after the election.

No effort to explain the process — the two years of exploiting phones, the months of January 6 Committee delay, the ten months of privilege fights, the month Elon Musk stole, or the eight months John Roberts bought Trump — none of that has mattered, of course. People needed an explanation for their own helplessness and Merrick Garland was the sparkle pony they hoped would save them.

But nothing Merrick Garland would have done would have mattered anyway.

That’s because since January 2017, since Trump learned that Mike Flynn had been caught undermining sanctions on the phone with Sergey Kislyak, Trump has used every effort to hold him accountable as a vehicle to sell grievance.

This is the core premise of the Ball of Thread podcast I’ve been doing with LOLGOP.

Rather than being grateful when learning that FBI was investigating four of his close campaign advisors had monetized their access to him — rather than imagining himself as the victim of the men who snuck off and met with Russian spies — Trump made himself the victim of the FBI. He invented a claim he was wiretapped, and then kept inventing more and more such false claims. And then he (possibly on the advice of Paul Manafort, whose associate Oleg Deripaska funded HUMINT before the Democrats did) used the dossier as stand-in for the real Russian investigation. It wasn’t the Coffee Boy yapping him mouth that led to the investigation into those trying to monetize access, this false story tells, it was the dossier Russia filled with disinformation, a guaranteed way to discredit the investigation. Once you convince people of the lie that the FBI really did investigate a candidate based off such a flimsy dossier, it becomes easy to target all those involved, along the way gutting the Russian expertise at FBI.

Then Bill Barr came in and used the authority of the Attorney General to lie about what the investigation found; almost no media outlets have revisited the findings once it became clear that Barr didn’t even bother learning what the report said. While trying to kill Zombie Mueller — the parts of the investigation that remained after Mueller finished — Barr’s DOJ literally altered documents in an attempt to put Joe Biden at the genesis of the investigation into Donald Trump, yet another attempt to replace the actual investigation, the Coffee Boy and campaign manager and National Security Advisor and personal lawyer and rat-fucker who were found to have lied to cover up the 2016 Russian operation, with a storytale in which Democrats are the villains.

John Durham never bothered to learn what the report actually said either. Had he done so, it would have been far harder to criminalize Hillary Clinton for being a victim of a hack-and-leak operation, along the way taking out still more expertise on Russia.

And while Barr was criminalizing people, he followed Rudy’s chase for dick pics in an effort to criminalize Hunter Biden and his father.

Do you see the genius of this con, Donald Trump’s most successful reality TV show ever?

Vast swaths of America, including at least half the Supreme Court, and millions of working class voters, really believe that he — the guy who asked Russia to hack his opponent some more — was the victim.

And that’s how a billionaire grifter earns the trust of the working guy.

For the most part, the press just played along, repeating Trump’s claims of victimhood as if they were true.

It’s also the problem in thinking that if only Trump faces legal consequences, he’ll go away, he’ll be neutralized.

We saw this every time he faced justice. The first impeachment. The second one. The New York trials. Each time, his grievance became a loyalty oath. Each time, he sucked more and more Republicans into the con. Each time he made them complicit.

The hatred of and for Trump by Rule of Law is what made him strong, because he used it to — ridiculously!! — place himself into the role of the little guy, the target of those mean elites.

We’ll have decades, maybe, to understand why Trump resoundingly won yesterday. Some of it is inflation (and the unrebutted claims it is bigger than it is), which makes working people angry at the elites, people they might imagine are the same people persecuting Trump.

For many, though, it’s the appeal of vengeance.

Trump has spent nine years spinning a tale that he has reason to wreak vengeance on Rule of Law. The greatest con he ever pulled.

So even if DOJ had charged Trump, two months before Merrick Garland was confirmed (though all three of the charges people imagine would be easy — incitement, the call to Brad Raffensperger, and the fake electors plot — have been unsuccessful in other legal venues), even if DOJ had convicted Trump along with the earliest crime scene defendant in March 2022, even if Trump hadn’t used the very same means of delay he used successfully, which would have still stalled the case past yesterday’s election, it still wouldn’t have disqualified him from running.

It still would be the centerpiece of his manufactured tale of grievance.

It still would be one of the elements he uses to make working people think he’s just like them.

You will only defeat Trumpism by destroying that facade of victimhood. And you will not achieve meaningful legal victories until you do that first.

I know we all need an easy way to explain this — an easy culprit for why this happened.

But it’s not Merrick Garland, because years before he came on the scene, Trump had already convinced everyone that any attempt to hold him accountable was just another attempt by corrupt powers to take him down.

Trump sold the country on grievance and victimhood. And in the process he made half the country hate Rule of Law.

Update: This is a good summary of how Trump lures in people attracted to grievance.

The Republican Party has been the party of the Low-Trust voter for a very long time. It’s the party that wants to get rid of institutions, of any of the bonds that connect us all together. The Democratic Party is the party of institutions, the party of Good Governance. It’s the party of trusting other Americans to make good choices for you. There is very little that the Democrats can do to appeal to the Low-Trust voter, and you saw what that means for the future of our politics last night. I would go so far as to say that we’re seeing the effects of a realignment of what partisanship is. The GOP is the party of the perpetual outsider and the Low-Trust voter, the people calling for things to be torn down. The Democrats are the insiders, the institutionalists. That’s why you saw realignment of people like Liz Cheney and Vermont Governor Phil Scott, people who still think the government matters even if they disagree on how it should be doing things.

I don’t know what you can do to win back the Low-Trust voters.

[snip]

I don’t know how you build back trust in the government. Things like FEMA in disasters are supposed to be able to do that, but the post-hurricane situation in North Carolina, where outside agitators went in to try to destroy that trust, and people on the Internet went out of their way to spread lies about how the Federal government had abandoned Asheville, are just examples of how everything can be used to pop out more Low-Trust voters.

What It Would Take to Charge Donald Trump with Inciting Insurrection

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I’ve been thinking a lot about Donald Trump’s second impeachment.

As we approach the election with Trump still facing a decent (though declining) chance of winning, a lot of justifiably worried people are again choosing to spend their time whinging about Merrick Garland rather than doing something constructive to help defeat Trump.

There remains a belief that it was Garland’s job — and that Garland had the power — to disqualify Trump from running this race.

A remarkable instance is Rachel Bitecofer, a PoliSci professor who has written on negative partisanship, the way in which people vote against something rather than necessarily for something.

That Bitecofer is spending days in advance of the election doing PR for John Roberts is especially inexcusable because her using partisan anger to get them to vote.

Days before the election, she falsely told voters to be mad about Merrick Garland rather than mad about John Roberts, the guy who is directly responsible for eight months of delay, or Mitch McConnell, the guy with primary responsibility for disqualifying Trump.

She’s breaking her own rule.

That’s one reason I’ve been thinking about the January 6 impeachment: because, in fact, it was McConnell’s job to disqualify Trump from running this race, and McConnell chickened out. Oh, I think there are things that might have altered the outcome of impeachment. Most notably, I think Nancy Pelosi made a mistake in not appointing Liz Cheney to the prosecution team. That would have given Cheney an earlier opportunity to play the formidable leadership role that she later played on the January 6 Committee. Cheney, as a member of GOP leadership, was witness to conversations involving Mike Johnson and Kevin McCarthy that might have tipped the decision to call witnesses. And as her support for Kamala Harris’ campaign has shown, she has the stature to persuade Republicans to put country over party.

But I’m also thinking about why that impeachment failed. Republicans offered two kinds of excuses, one procedural and one evidentiary. Procedurally, McConnell and others argued, they didn’t have the authority to impeach Trump after he left office.

It was a cop out, but — as we’ll see — one that played a role in the immunity decision.

Trump also made some evidentiary arguments against the claim that Trump incited the attack. Trump argued, for example, that rioters planned their attack in advance, and so couldn’t have been incited by Trump.

Despite going to great lengths to include irrelevant information regarding Mr. Trump’s comments dating back to August 2020 and various postings on social media, the House Managers are silent on one very chilling fact. The Federal Bureau of Investigation has confirmed that the breach at the Capitol was planned several days in advance of the rally, and therefore had nothing to do with the President’s speech on January 6th at the Ellipse. According to investigative reports all released after January 6, 2021, “the Capitol Police, the NYPD and the FBI all had prior warning there was going to be an attack on the Capitol…” 14

14 Ian Schwartz, John Solomon: Capitol Riot Was A “planned Attack,” Can’t Blame Trump; What Did Pelosi and McConnell Know?, Real Clear Politics (Jan. 13, 2021), https://www.realclearpolitics.com/video/2021/01/13/john_solomon_capitol_riot_was_a_planned_attack_c ant_blame_trump_what_did_pelosi_mcconnell_know.html

Leaning almost entirely on the presence of provocateur John Sullivan at the riot, Trump argued that because rioters had motives other than to support Trump, Trump couldn’t have been responsible.

The real truth is that the people who criminally breached the Capitol did so of their own accord17 and for their own reasons, and they are being criminally prosecuted. 18

17 Some anti-Trump, some ani-government. See, e.g., Alicia Powe, Exclusive: “Boogaloo Boi” Leader Who Aligns with Black Lives Matter, Gateway Pundit, (Jan. 17, 2021), https://www.thegatewaypundit.com/2021/01/boogaloo-boi-leader-aligns-black-lives-matter-boastedorganizing-armed-insurrection-us-capitol/. “The goal of swarming the home of the U.S. House of Representatives and Senate is “to revel in the breach of security while mocking the defenses that protect tyrants…whether that be Trump or others.” See also Robert Mackey, John Sullivan, Who Filmed Shooting of Ashli Babbitt, The Intercept (Jan. 14, 2021), https://theintercept.com/2021/01/14/capitol-riot-john-sullivan-ashli-babbitt/ (“The rapper, who later retweeted a brief video clip of himself and Sullivan inside the Rotunda that was broadcast live on CNN, told me in an Instagram message … “I’m far from a Trump supporter…I really don’t even get into politics at all. It was an experience for me and that’s really the only reason I was there.”)

18 See, e.g., Tom Jackman, Marissa J. Lank, Jon Swaine, Man who shot video of fatal Capitol shooting is arrested, remains focus of political storm, Washington Post (Jan. 16, 2021), https://www.washingtonpost.com/nation/2021/01/16/sullivan-video-arrested/.

Trump repeatedly treated his use of the word “fight” as figurative.

Of the over 10,000 words spoken, Mr. Trump used the word “fight” a little more than a handful of times and each time in the figurative sense that has long been accepted in public discourse when urging people to stand and use their voices to be heard on matters important to them; it was not and could not be construed to encourage acts of violence Notably absent from his speech was any reference to or encouragement of an insurrection, a riot, criminal action, or any acts of physical violence whatsoever. The only reference to force was in taking pride in his administration’s creation of the Space Force. Mr. Trump never made any express or implied mention of weapons, the need for weapons, or anything of the sort. Instead, he simply called on those gathered to peacefully and patriotically use their voices. [emphasis original]

Most crucially, Trump noted that the attack on the Capitol started before he finished speaking.

A simple timeline of events demonstrates conclusively that the riots were not inspired by the President’s speech at the Ellipse. “The Capitol is 1.6 miles away from Ellipse Park which is near the White House. This is approximately a 30-33 minute walk. Trump began addressing the crowd at 11:58 AM and made his final remarks at 1:12 PM… Protesters, activists and rioters had already breached Capitol Grounds a mile away 19 minutes prior to the end of President Trump’s speech.”20

Trump also complained that the House Democrats used news reports of the rioters’ actions, rather than legal documents.

Some of these excuses are flimsy. Most rely on a rupture between the law prohibiting incitement, which prohibits both inciting an insurrection but also “set[ting] on foot, assist[ing], or engag[ing]” in insurrection, and the holding in Brandenburg, which limited incitement to those stoking imminent illegal action. Those who claim that Trump committed a crime in plain sight would have to rebut these defenses.

In the January 6 Committee’s incitement referral, the argument shifted away from arguing that Trump incited insurrection with just his speech, focusing more on Trump’s failure to stop the riot. They argued:

  • Trump summoned a mob and then further provoked the already rioting mob with his Tweet targeting Mike Pence.
  • Two of the rioters described their actions in terms of Trump’s orders.
  • After the riot was already started, Trump refused to take action to protect the Capitol.
  • Trump told close aides that Mike Pence deserved the chants threatening to hang him.
  • Trump has since — starting as early as September 2022, before either sedition trial — promised to pardon the rioters.

J6C did good work, but this insurrection referral was just as thin as their obstruction one. Their citation to January 6ers still relied on press reports rather than court records. And rather than relying on Oath Keeper Kelly Meggs’ hunt for Nancy Pelosi — Meggs had been convicted of sedition a few weeks earlier — the report relies on Cleveland Meredith, who never made the insurrection. They don’t incorporate the excellent work J6C did to reconstruct how Trump ordered language targeting Mike Pence back into his speech after Pence refused the President’s entreaties to steal the election.

To be sure, at that point in December 2022, prosecutors were still working on the case that Trump incited the mob. The Proud Boy leaders’ trial — which J6C’s decision to withhold their transcripts had delayed three months — wouldn’t start until early the next month and wouldn’t conclude until May 2023. And it would take another five months, until April 2023, for DOJ to present their best evidence that Trump incited someone at his speech — Danny Rodriguez — to go attack the Capitol and tase Michael Fanone; in the wake of Fischer, however, the sentences of Rodriguez’ co-conspirators have been sharply reduced. People complain that DOJ focused on the crime scene, but before you could even consider incitement, you’d have to account for the Proud Boys and people like Rodriguez.

Before SCOTUS started rewriting the laws applying to January 6, prosecutors were prepared to show specifics about Trump’s culpability for the attack. This is how Jack Smith’s team described Trump’s responsibility for his mob almost exactly a year ago.

Ultimately, the defendant’s three conspiracies culminated and converged when, on January 6, the defendant attempted to obstruct and prevent the congressional certification at the Capitol. One of the ways that the defendant did so, as alleged in the indictment, was to direct an angry crowd of his supporters to the Capitol and to continue to stoke their anger while they were rioting and obstructing the certification.

At trial, the Government will prove these allegations with evidence that the defendant’s supporters took obstructive actions at the Capitol at the defendant’s direction and on his behalf. This evidence will include video evidence demonstrating that on the morning of January 6, the defendant encouraged the crowd to go to the Capitol throughout his speech, giving the earliest such instruction roughly 15 minutes into his remarks; testimony, video, photographic, and geolocation evidence establishing that many of the defendant’s supporters responded to his direction and moved from his speech at the Ellipse to the Capitol; and testimony, video, and photographic evidence that specific individuals who were at the Ellipse when the defendant exhorted them to “fight” at the Capitol then violently attacked law enforcement and breached the Capitol.

The indictment also alleges, and the Government will prove at trial, that the defendant used the angry crowd at the Capitol as a tool in his pressure campaign on the Vice President and to obstruct the congressional certification. Through testimony and video evidence, the Government will establish that rioters were singularly focused on entering the Capitol building, and once inside sought out where lawmakers were conducting the certification proceeding and where the electoral votes were being counted. And in particular, the Government will establish through testimony and video evidence that after the defendant repeatedly and publicly pressured and attacked the Vice President, the rioting crowd at the Capitol turned their anger toward the Vice President when they learned he would not halt the certification, asking where the Vice President was and chanting that they would hang him. [my emphasis]

A year ago, prosecutors promised to prove that Trump sent his mob to the Capitol, where many of the people Trump had told to “fight” assaulted cops. They have argued for over a year that the mob was the tool that Trump used to obstruct the vote certification.

Last month, subsequent to Fischer, Jack Smith’s argument changed a bit. He relied more on an aid and abet theory of Trump’s liability for his mob’s actions.

Contrary to the defendant’s claim (ECF No. 255 at 7) that he bears no factual or legal responsibility for the “events on January 6,” the superseding indictment plainly alleges that the defendant willfully caused his supporters to obstruct and attempt to obstruct the proceeding by summoning them to Washington, D.C., and then directing them to march to the Capitol to pressure the Vice President and legislators to reject the legitimate certificates and instead rely on the fraudulent electoral certificates. See, e.g., ECF No. 226 at ¶¶ 68, 79, 82, 86-87, 94. Under 18 U.S.C. § 2(b), a defendant is criminally liable when he “willfully causes an act to be done which if directly performed by him or another would be” a federal offense. See, e.g., United States v. Hsia, 176 F.3d 517, 522 (D.C. Cir. 1999) (upholding a conviction for willfully causing a violation of 18 U.S.C. § 1001).

One way or another, however, as charged Jack Smith is relying on the 18 USC 1512(c)(2) charges to tie Trump to his mob. DOJ needs to sustain at least some of the obstruction charges against crime scene defendants to make this stick. And an opinion from Beryl Howell, freeing two Proud Boys from prison based on her judgment that nothing they did at the Capitol impaired the availability or integrity of the electoral certificates, will make that harder to do.

But let’s go back to whether Merrick Garland — or DOJ prosecutors who spent 30 months showing that Trump incited people like Danny Rodriguez to go nearly murder Michael Fanone, or Jack Smith — could then prove that Trump incited an insurrection.

In August 2023, when Smith indicted Trump, it was not clear he could do that. At the least, he faced the likelihood that Trump would argue his acquittal immunized him from being charged criminally. Indeed, even though Smith didn’t charge Trump with inciting an insurrection, he nevertheless sustained that argument all the way to the Supreme Court, causing precisely the delay that people like Bitecofer blame on Garland.

But in the last year, SCOTUS did three things to clarify the issue. As noted, SCOTUS interpreted 18 USC 1512(c)(2) in a way that may imperil Smith’s ability to tie Trump to the actions the mob took via his obstruction charge.

Even before that, on March 4, a unanimous Supreme Court held that the only way Merrick Garland could disqualify Trump from taking office — and technically he still could — would be to convict him 18 USC 2383.

Instead, it is Congress that has long given effect to Section 3 with respect to would-be or existing federal officeholders. Shortly after ratification of the Amendment, Congress enacted the Enforcement Act of 1870. That Act authorized federal district attorneys to bring civil actions in federal court to remove anyone holding nonlegislative office—federal or state—in violation of Section 3, and made holding or attempting to hold office in violation of Section 3 a federal crime. §§14, 15, 16 Stat. 143–144 (repealed, 35 Stat. 1153–1154, 62 Stat. 992–993). In the years following ratification, the House and Senate exercised their unique powers under Article I to adjudicate challenges contending that certain prospective or sitting Members could not take or retain their seats due to Section 3. See Art. I, §5, cls. 1, 2; 1 A. Hinds, Precedents of the House of Representatives §§459–463, pp. 470–486 (1907). And the Confiscation Act of 1862, which predated Section 3, effectively provided an additional procedure for enforcing disqualification. That law made engaging in insurrection or rebellion, among other acts, a federal crime punishable by disqualification from holding office under the United States. See §§2, 3, 12 Stat. 590. A successor to those provisions remains on the books today. See 18 U. S. C. §2383.

And thanks to Trump’s own argument about impeachment, SCOTUS has clarified that he can be charged with 18 USC 2383. Sonia Sotomayor cited Mitch McConnell’s cop out in her dissent in the impeachment case.

Indeed, Trump’s own lawyers during his second impeachment trial assured Senators that declining to impeach Trump for his conduct related to January 6 would not leave him “in any way above the law.” 2 Proceedings of the U. S. Senate in the Impeachment Trial of Donald John Trump, S. Doc. 117–2, p. 144 (2021). They insisted that a former President “is like any other citizen and can be tried in a court of law.” Ibid.; see also 1 id., S. Doc. 117–3, at 339 (Trump’s impeachment counsel stating that “no former officeholder is immune” from the judicial process “for investigation, prosecution, and punishment”); id., at 322–323 (Trump’s impeachment counsel stating: “If my colleagues on this side of the Chamber actually think that President Trump committed a criminal offense . . . [a]fter he is out of office, you go and arrest him”). Now that Trump is facing criminal charges for those acts, though, the tune has changed. Being treated “like any other citizen” no longer seems so appealing. In sum, the majority today endorses an expansive vision of Presidential immunity that was never recognized by the Founders, any sitting President, the Executive Branch, or even President Trump’s lawyers, until now. Settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them.

John Roberts didn’t address the cop out in his majority opinion, but he did say that if the political process of impeachment failed for whatever reason — including failing to “muster the political will to impeach” (which sure sounds like why McConnell failed) — the criminal process remained open.

The implication of Trump’s theory is that a President who evades impeachment for one reason or another during his term in office can never be held accountable for his criminal acts in the ordinary course of law. So if a President manages to conceal certain crimes throughout his Presidency, or if Congress is unable to muster the political will to impeach the President for his crimes, then they must forever remain impervious to prosecution.

Impeachment is a political process by which Congress can remove a President who has committed “Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, §4. Transforming that political process into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of our Government

Whatever else SCOTUS did, on July 1, 2024, almost a full year after Smith charged Trump, John Roberts clarified that Smith could charge Trump with insurrection.

If Jack Smith had charged Trump with inciting insurrection on August 2023, the case still would have gone to SCOTUS. Given what a hack John Roberts is, he might have fought harder to avoid creating the following set of rules covering Trump. But between the three opinions this year, Roberts has held that:

  • Obstruction may be a reach for January 6, particular a conspiracy between Trump and his mob to obstruct the vote certification
  • Insurrection remains good law and the law disqualifies someone from serving as President
  • Trump’s acquittal on insurrection does not preclude him being charged with it

The legal questions about whether Merrick Garland could disqualify Trump from running were not resolved until August 7, and the evidentiary questions will not be decided for months yet.

More importantly, those claiming that DOJ could have charged Trump right away are missing a great many steps that had to happen first:

  • DOJ had to prosecute all the crime scene defendants — people like Danny Rodriguez — it will use to prove that Trump incited rioters; with Rodriguez, that was held up by COVID, the evidentiary challenges, and his own legal challenges to using his own confession against him. In the case of Rodriguez’ co-conspirator, that took until April 2023.
  • DOJ had to resolve the Proud Boy leaders’ case to explain Trump’s relationship to the riot that kicked off even as he was still speaking, which — even though Tarrio’s phone was seized before January 6 — took until May 2023.
  • DOJ had to obtain Executive Privilege-waived testimony from (at a minimum) Greg Jacob (who predicted violence), Stephen Miller (to get his testimony regarding the speech), Dan Scavino (to confirm details about the Tweet targeting Pence), and Mike Pence himself. Those challenges started when DOJ subpoenaed Jacob on June 15, 2022, and necessarily proceeded by steps, until Smith obtained Pence’s testimony on April 27, 2023.
  • DOJ had to exploit the phone used by Trump on January 6; it’s unclear when that happened.
  • DOJ had to force Elon Musk’s Twitter to comply with a warrant for Trump’s Twitter account. He stalled for 23 days in January and February 2023.
  • DOJ would probably need the contents of Mike Roman’s phone, which show him egging on a colleague to “Make them riot” at the TCF counting center in Detroit, and Boris Epshteyn’s phone, which implicates Steve Bannon in the conspiracy and through him makes Bannon’s prediction that “All Hell is going to break loose tomorrow” part of the conspiracy. Those phones were seized in September 2022, but I have argued that Roman and Bannon’s belated treatment as conspirators may suggest it took longer than 11 months to exploit those phones (which was known to happen with Enrique Tarrio and Scott Perry’s phones).

As I keep laying out, we know how long the investigation took. We know it took 14 months before the first crime scene defendants could be tried. We know it took over a year to exploit Tarrio’s phone. We know J6C caused at least three months of delay by withholding transcripts. We know it took ten months to get privilege-waived testimony from necessary witnesses.

And we know that John Roberts chose to delay the legal questions from December 2023 until August 2024, eight months.

Merrick Garland might yet charge Trump with insurrection. He might need to, to sustain the tie between Trump and his mob. But we have a pretty clear understanding of why that didn’t happen, couldn’t have happened, before tomorrow’s election.

On the Legacy of Bill Barr’s Luzerne County Intervention

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Somewhere, I have a half-finished post about the way that Bill Barr refused to cooperate with three different Inspector General Reports reviewing his actions — his actions during May and June 2020 protests in DC, his intervention in the Roger Stone sentencing, and his decision to seek out a voter fraud cause he could publicize. (There’s at least one more investigation, probably the one into subpoenas targeting journalists and Congress, that is ongoing.)

I hope to return to that if we still have a democracy next week.

But I want to review the third of these, because it hangs over DOJ’s ongoing investigation of a number of suspect election crimes, including the arson targeting ballot drop boxes in Oregon and Washington earlier this week.

As you may recall, someone — who turned out to be a mentally disabled man — threw away nine mail-in ballots in Luzerne County, PA in September 2020. The US Attorney for Middle District of Pennsylvania in Scranton, David Freed, big-footed into the investigation, in part (the IG Report discovered) because Bill Barr was looking for some case to talk about. Barr told Trump about the case and Trump made public comment.

…These ballots are a horror show. They found six ballots in an office yesterday in a garbage can. They were Trump ballots—eight ballots in an office yesterday in—but in a certain state and they were—they had Trump written on it, and they were thrown in a garbage can. This is what’s going to happen. This is what’s going to happen, and we’re investigating that. It’s a terrible thing that’s going on with these ballots. Who’s sending them, where are they sending them, where are they going, what areas are they going to, what areas are they not going to?… When they get there, who’s going to take care of them? So, when we find eight ballots, that’s emblematic of thousands of locations perhaps.

After which, Barr and Freed decided to release a public comment about the investigation, including that all nine of the discarded ballots had been cast for Trump (that turned out to be inaccurate; Freed issued a corrected statement days later). By the time Freed made that statement, it was pretty clear they weren’t going to charge the man involved; nevertheless, it wasn’t until the following January before the US Attorney’s Office revealed there would be no charges. Nevertheless, Freed also sent a letter to the county providing still more details from the investigation.

Barr refused to be interviewed for the Inspector General investigation, though his attorney kept providing new statements that didn’t answer all the questions about his behavior (one of my favorite Barr comments is that of course he didn’t advertise this case for political reasons because that would be inconsistent with his public statement on December 1 that there had been no decisive voter fraud). Barr spun the entire thing as an effort to reassure people.

Barr told the OIG in his letter to the Inspector General that he “favored and authorized putting out information along the lines of [MDPA’s] September 24 statement,” and Freed told the OIG that Barr specifically approved inclusion of investigative details in the statement, including the fact that “all nine ballots were cast for presidential candidate Donald Trump.” Barr stated in his letter that he favored including “the basic facts that prompted the investigation” in the MDPA statement as a way to quell public concerns about election integrity. Specifically, Barr stated: “Due to the involvement of local officials and county witnesses, I thought that further revelations of information about the incident were likely, potentially could come at any time, and could be mistaken.” Barr further wrote:

…I was concerned that the vagueness of the local officials’ statement, coupled with the Department’s silence, was contributing to undue speculation and potentially unsettling the public more than necessary about the election’s integrity. I considered this was a matter in which the public interest could likely be best served by getting out in front of the story by recounting the basic facts that prompted the investigation. Among other things, doing so would help dispel needless mystery and speculation by delimiting the nature and scope of the issue being investigated.

Barr’s letter went on to assert that a public statement would “have a salutary deterrent effect” and serve as “a reminder to election administrators” of their responsibility to safeguard election integrity. Barr ultimately stated that he had determined, in his judgment, that “a strategy of remaining silent” about details of the Luzerne County ballot investigation “would have ended up doing more harm to the public interest than getting out in front with a more forthcoming statement in the first place.”76 Freed, for his part, told us that he believed releasing details about the investigation was important because it was the “best way” to keep the public officials running these elections “honest,” and because it would alert military voters that their ballots may have been discarded.77

In comments submitted to the OIG after reviewing a draft of this report, Barr stated that it was important at the outset to reassure the public “that there was a legitimate basis for the federal government to take over the investigation.” Barr continued: “The key fact that justified the federal government taking over the investigation was that only Trump ballots—no Biden ballots—had been found discarded.” Barr added that this fact was a “red flag” for investigators and “suggested that the discarding of ballots was not random or accidental, but potentially intentional.” In comments submitted after reviewing a draft of this report, Freed’s counsel echoed this sentiment, stating: “Had the statement not included [that the discarded ballots were all for President Trump], it would have omitted the operative fact that provided the predicate for federal involvement and would have left the public completely confused.” We found that this concern expressed by both Barr and Freed about federal involvement could just as easily have been satisfied by stating that all of the ballots were for the same presidential candidate, rather than identifying a particular candidate, which would have avoided injecting partisan considerations into a public statement by the Department. Moreover, the MDPA statement includes no information about the choices of the voters in the district’s congressional race, which would have been equally relevant to establish federal jurisdiction in the matter.

76 We were struck by the similarity between the justifications presented here and the explanation former FBI Director James Comey gave during our review of his conduct in advance of the 2016 election. In explaining why he announced to Congress that the FBI had resumed its investigation of then presidential candidate Hillary Clinton less than 2 weeks before the 2016 election, Comey told the OIG that he had determined, in his own judgment, that “there was a powerful public interest” in commenting on the Clinton email investigation, and that it would have been “catastrophic” to the Department and the FBI to not do so. DOJ OIG, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election, Oversight and Review Division Report 18-04 (June 2018), https://oig.justice.gov/reports/review-various-actions-federal-bureau-investigation-and-department-justiceadvance-2016, 365.

77 Neither Barr nor Freed, nor any witness we spoke to, suggested that § 1-7.400(C)’s second exception—permitting comment on investigations when “release of information is necessary to protect the public safety”—applied here.

Ultimately, DOJ IG found the whole thing to be wildly inappropriate, but because of the discretion afford the Attorney General to share information with the President and make public comment, it said that it could not find that Barr had engaged in misconduct; it did find that Freed had engaged in misconduct, both by blabbing about an ongoing investigation and doing so without consulting with Public Integrity before doing so.

DOJ referred both Barr and Freed to the Office of Special Counsel for a review of whether this was a Hatch Act violation.

We concluded that the MDPA statement did not comply with the DOJ policy generally prohibiting comment about ongoing criminal investigations before charges are filed; however, we did not find that either Barr or Freed committed misconduct because of ambiguity as to the applicability of Barr’s authority to approve the release of the statement pursuant to 28 C.F.R. § 50.2(b)(9). We found that Freed violated the DOJ policy prohibiting comment about ongoing criminal investigations before charges are filed when he publicly released his letter to Luzerne County officials. We found that Freed also violated DOJ policies requiring employees to consult with PIN before issuing a public statement in an election-related matter and requiring U.S. Attorneys to coordinate comments on pending investigations with any affected Department component—in this case, the FBI. Finally, while we were troubled that Barr relayed to President Trump investigative facts about the Luzerne County matter, we concluded that Barr’s decision to provide that information to President Trump did not violate DOJ’s White House communications policy because the policy appears to leave it to the Attorney General’s discretion to determine precisely what information can be shared with the President when a communication is permissible under the policy, as we found was the case here.

We make a number of recommendations in this report. First, as DOJ policy does not address what information Department personnel may include in a statement that is determined to be necessary to reassure the public that the appropriate law enforcement agency is investigating a matter or to protect public safety, we recommend that the Department revise this policy to require that the information contained in a statement released pursuant to JM 1-7.400(C) be reasonably necessary either to reassure the public that the appropriate law enforcement agency is investigating a matter or to protect public safety. Second, we recommend that the Department make clear whether the Justice Manual’s Confidentiality and Media Contacts Policy, Justice Manual § 1-7.000, applies to the Attorney General. Third, we recommend that the Department clarify its policies to address whether any of the provisions of 28 C.F.R. § 50.2 remain Department policy in light of the existence of the Confidentiality and Media Contacts Policy contained in the Justice Manual. Fourth, if 28 C.F.R. § 50.2(b)(9) remains valid Department policy, we recommend that the Department require that requests to the Attorney General or Deputy Attorney General for approval to release information otherwise prohibited from disclosure and any approval to release such information pursuant to § 50.2(b)(9) be documented. Lastly, we recommend that the Department consider revising its White House communications policy to clarify what information can be disclosed to the White House in situations where the policy permits communication about a contemplated or pending civil or criminal investigation.

As noted above, the federal Hatch Act prohibits executive branch employees from using their “official authority or influence for the purpose of interfering with or affecting the results of an election.”89 The U.S. Office of Special Counsel has sole jurisdiction to investigate Hatch Act violations.90 Because the circumstances described in this report raise a question as to whether these former Department officials’ actions violated the Hatch Act, we are referring our findings to the Office of Special Counsel for its review and determination of that issue.

It’s not entirely clear how many of DOJ IG’s recommendations DOJ has implemented since this report was released in July.

But one way or another, the conduct described in this report would look indistinguishable from the investigations currently ongoing. That is, weighing in to talk about whether specific election crimes were being committed by Trump or Harris supporters (or none of the above, as was the case in Luzerne and may be the case if the Northwest arsonist really is motivated by Gaza, as the incendiary devices imply) would be deemed a violation of DOJ guidelines.

DOJ is only supposed to make comments to reassure people that something is under investigation. DOJ has done so, formally, in Washington.

“The US Attorney’s Office and the FBI want to assure our communities that we are working closely and expeditiously together to investigate the two incendiary fires at the ballot boxes in Vancouver, Washington, and the one in Portland, Oregon, and will work to hold whoever is responsible fully accountable,” US Attorney Tessa M. Gorman and Greg Austin, acting special agent in charge of the FBI’s Seattle office said in a statement Tuesday.

But you are not going to hear more than that unless and until DOJ charges someone.

On September 4, at the very press conference where he rolled out the indictment against the useful idiots being secretly paid by RT, on the very last day before the election blackout would go into place, Merrick Garland discussed the Election Threats Task Force that Lisa Monaco put into place back in June 2021.

DOJ has made statements about specific crimes — including the one Elon Musk is suspected of committing, as well as more general efforts to prosecute Election Fraud.

I promise you, that’s all you’re going to get unless charges are filed.

Useful Idiots: DOJ Moves from Name-and-Shame to Name-and-Disrupt

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In the Election Task Force presser at which DOJ also rolled out two operations against Russian foreign malign influence last week, Merrick Garland described that the investigation into RT’s efforts to hide its efforts in the US was ongoing. “The charges unsealed this morning do not represent the end of the investigation. It remains active and ongoing.”

Indeed, last week, Tim Pool (believed to be Commentator-2 in the RT indictment) revealed that he would assist in the investigation (presumably meaning he’ll sit for the interview the FBI requested).

The language Pool used — the emphasis on a voluntary interview, one echoed by Benny Johnson’s more equivocal statement about his response to a similar FBI invitation — suggests DOJ is treating Pool, and so presumably most of the other commentators described in the indictment, as media under DOJ’s recently updated media guidelines.

Not so Lauren Chen herself — or at least, not Tenet Media. After all, the indictment describes several Discord servers — a general one, one focused on “funders,” another on “producers,” and another for one of the commentators — that all seem to be part of Tenet’s overarching Discord server run by Chen. To get legal process on that, as they clearly did, prosecutors would have had to convince DOJ’s National Security Division head, Matt Olsen, that Tenet or Chen either aren’t media or fit into one of the designated exceptions to the media rule.

Prosecutors might do that through Chen’s (or her spouse, Liam Donovan’s) past work with RT, after such time as it had registered as an agent of Russia in 2017. Or, if DOJ could prove that Chen knew the Russians she was working for were just an extension of her pre-existing RT contract, that might also satisfy the exception for “a foreign power or agent of a foreign power.” But even Chen’s acceptance of US-bound payments via wire from “Turkish Shell Entity-1” described as, “BUYING GOODS-INV.013-IPHONE 15 PRO MAX 512GB” would likely reach an aid-and-abet standard for RT’s alleged money laundering.

According to the indictment, the many cut-outs via which she (and by association, the podcasters) were being paid, were visible to her. None were in France, where the fictional funder of the project purportedly lived. She was witting to the money laundering alleged in the indictment, which probably qualifies her for an exception to the media guidelines. Charging that money laundering may be one step in justifying a broader investigation into Chen, including one that extends into her other roles in the far right network at Glenn Beck’s show and on Turning Point USA.

This post, which I started last week, was going to be a post laying out how all of last week’s activities seem to be an attempt to move beyond DOJ’s prior approach of name-and-shaming foreign hackers, to a name-and-disrupt approach. Lawfare did such a post earlier this week, and Alex Finley did one focused on RT and Doppelganger.

But I’m going to post the part of that larger post focused on RT now, because State just rolled out the next step of this name-and-disrupt operation: sharing intelligence showing how RT has become a front for Russia’s broader intelligence operations.

The State Department revealed declassified US intelligence findings that suggest RT is fully integrated into Russia’s intelligence operations around the world and announced it is launching a diplomatic campaign to provide countries with information about the risks associated with RT activities.

“Thanks to new information, much of which originates from RT employees, we know that RT possessed cyber capabilities and engaged in covert information and influence operations and military procurement,” Secretary of State Antony Blinken said Friday.

A key finding from the new US intelligence is that, for more than a year, the Russian government has quietly embedded an intelligence-gathering unit within RT that is focused on influence operations globally. That activity has been part of US officials described as a big expansion of RT’s role as an arm and mouthpiece of the Kremlin abroad. The activity goes beyond propaganda and covert influence operations to even include military procurement, according to US officials.

The flyer from State laying this out lists cover operations in Germany, France, and Argentina.

DOJ presumably timed last week’s indictment to beat the 60-day prohibition on announcements that might effect an election. But it was presumably also coordinated with Anthony Blinken’s trip to Eastern Europe, whence he just returned.

It appears that rolling out the indictment did two things. First, it laid out how this works, how a persona sets up an allegedly witting front, like Lauren Chen, to effectively recruit useful idiots on Russia’s behalf.

But by unrolling the indictment last week, DOJ likely facilitated further investigation of the Tenet operation.

It’s likely, for example, that DOJ needs cooperation from the podcasters like Benny and Pool to pursue an investigation into Chen any further. At the very least, prosecutors would have to lock them into statements that they had no idea they were working for RT. Those statements might not be entirely persuasive, mind you, but such statements would be crucial to showing that Chen was part of the RT deception, part of an effort by an agent of Russia to spread their propaganda via unwitting cut-outs.

By rolling out the indictment in the way they did, DOJ gave all the podcasters an incentive to immediately claim ignorance, if for no other reason than to preserve their own brand. As NBC curated, several of the podcasters did claim they were victims, within a day.

Pool said, in part, in a lengthy statement on X: “Should these allegations prove true, I as well as the other personalities and commentators were deceived and are victims. I cannot speak for anyone else at the company as to what they do or to what they are instructed.”

[Benny] Johnson, also on X, said: “A year ago, a media startup pitched my company to provide content as an independent contractor. Our lawyers negotiated a standard, arms length deal, which was later terminated. We are disturbed by the allegations in today’s indictment, which make clear that myself and other influencers were victims in this alleged scheme. My lawyers will handle anyone who states or suggests otherwise.”

[Tayler] Hansen said, in part, on X: “These allegations come as a complete shock to me and the other hosts at TENET Media. I want to be as clear as possible, I was never directed to report on any topic and had complete freedom and control over my reporting at all times. I would never agree to any arrangement where I am not the sole person in charge of the stories I cover and content I create.”

[Dave] Rubin said, in part, on X:” These allegations clearly show that I and other commentators were the victims of this scheme. I knew absolutely nothing about any of this fraudulent activity. Period.”

[Matt] Christiansen said, in part, on X: “At no point has anyone ever directed me what to say or not to say, and I would never agree to anything otherwise. My videos and streams for Tenet are exactly the same as my videos and streams on my personal channels. Every word is from me and me alone.” [my emphasis]

And after they did claim to be victims, the FBI called them up and said, “how would you like to sit for a voluntary interview … you know, as a victim?”

This is why I’m way more sympathetic to Pool and Benny’s claims they’re victims than others, who rightly argue they had to have known something sketchy was going on: not because I believe they were that stupid (both could have been, but Pool, who hired Cassandra Fairbanks after she was already tainted as a Sputnik persona, has been swimming in these waters for years). But because DOJ set this up to highly motivate them to position themselves, publicly, as victims and then capitalized on that to take further investigative steps.

But this operation also served to disrupt Russian support of propaganda, which is one of the reasons I view the efforts rolled out last week as an attempt to disrupt ongoing efforts, rather than just an attempt to name-and-shame.

After all, the podcasters (Rubin and Benny had already moved on; the others had not) are out of a hefty paycheck. Tim Pool will either have to find some right wing billionaire to pay wildly inflated rates for his apology for Russia from here on out, or he’ll have to scale back. It might take some weeks to do that. He might even have to give up politicizing the local skateboard park.

By sanctioning RT, among others, upon release of this indictment, not just the Tenet podcasters, but anyone else in the US knowingly on the RT grift, has to drop their gig immediately.

Presumably, a number of other people are doing quietly what former weapons inspector Scott Ritter did quite boisterously last week. Ritter — who, last month, had his house searched — posted that the sanctions on RT meant he had to immediately drop his RT gigs.

Per his claims in a Substack post released since then, Ritter was getting nothing close to what the podcasters were.

Amidst revelations of multi-million dollar deals where influencers were paid $100,000 a week to produce video content, and on-air hosts given million dollar salaries along with other perks, my relationship with Russian state-owned media pales into insignificance, contracted as an outside contributor compensated with what now, by comparison, seems a paltry $250-280 per item published, with the total amount received amounting to less than 7% of my total annual income.

Apparently, my negotiating skills are lacking—rather than insisting that I would not consider any offer under $5 million, I was content with compensation that matched the industry “norm” of between $150-300 per item published. Earlier this year, when RT thought that my interest in contributing had waned, they offered to double the price paid per article; I declined, insisting that we adhere to the letter of our agreement.

And now having done that — having forced people who were being supported by RT to drop their gigs — partners around the world can turn to unpacking similar operations in their own countries.

There are, undoubtedly, other nodes like the Tenet one, both in the US and around the world. This one may have been particularly important to disrupt before the election, because of Chen’s involvement with Turning Point, which will have a key role in Trump’s GOTV.

But whatever she was doing, TPA has cut her off.

In One Week, Trump Suggests He’ll Eliminate Sanctions on Iran and Lies about Iran Hack to Supporters

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Donald Trump’s batshit crazypants answer regarding childcare was the part of his address to the New York Economic Club that deservedly attracted the most attention last week.

But I was interested in a response Trump gave to Sullivan & Cromwell Rodge Cohen regarding whether he would alter the sanctions against Russia.

H. RODGIN COHEN: Thank you, Bob, and thank you, Mr. President. Thank you. I would like to ask about the United States economic sanctions programs. These programs have been used, as you well know, to advance our national security interests, our foreign policy objectives, but they also have economic implications. And the most recent was the program against Russia in response to the Ukrainian – their invasion of Ukraine, where, for once, we got the support of all our allies. So my specific question is, would you strengthen or modify any of these economic sanctions programs, particularly Russia, including the pipeline you mentioned?

DONALD TRUMP: Well, it’s a great question. The problem with what we have with sanctions – and I was a user of sanctions, but I put them on and take them off as quickly as possible because, ultimately, it kills your dollar and it kills everything the dollar represents, and we have to continue to have that be the world currency. I think it’s important. I think it would be losing a war. If we lost – if we lost the dollar as the world currency, I think that would be the equivalent of losing a war.

That would make us a third-world country, and we can’t let it happen. So I use sanctions very powerfully against countries that deserve it, and then I take them off. Because look, you’re losing Iran, you’re losing Russia, China is out there trying to get their currency to be the dominant currency, as you know better than anybody. All of these things are happening.

You’re losing so many countries because there’s so much conflict with all of these countries that you’re going to lose that, and we can’t lose that. So I want to use sanctions as little as possible. One of the things that we have with tariffs is that I’ll say to them, you don’t honor the dollar as your world currency. Is that right?

You’re not going to do it? No, we’re not. I said, that’s okay. I’m going to put tariffs all over your product, and they’re going to say, sir, we’d love to honor the dollar as the world currency.

You know, tariffs, in addition to monetary and the money that we’ll take in, which will be bigger than you’ve ever seen in this country before, gives you tremendous political power for something like that, as an example. I stopped wars with the threat of tariffs. I stopped wars with two countries that mattered a lot. A lot of people would have been killed. [my emphasis]

Cohen asked only about Russia. But Trump’s answer included Iran (and wildly misrepresented what he did with sanctions on Iran, which Biden rescinded a month after becoming President). Trump seemed to suggest that sanctions, including those against Iran, had to be limited, or targeted countries would abandon the dollar.

I’ll leave it to economic experts to address whether his plan to enforce adherence to the dollar using tariffs could have the same effect.

I’m interested in the response, generally, because if there was a quo that Trump was supposed to provide after Russia helped Trump win in 2016, it was sanctions relief. Trump went to some effort — with an attempt to script Steve Bannon’s HPSCI testimony, Don Jr’s refusal to testify before a grand jury, Trump’s complete blow-off of a sanctions question from Mueller, and the attempt to reverse the Mike Flynn prosecution — to prevent Mueller from substantiating that Trump had taken steps to deliver that quo before the Russian investigation became overt.

Yet here he is again, suggesting he’ll end sanctions on Russia during the election.

But I’m particularly interested in Trump’s affirmative inclusion of Iran in the comment.

Sure, his inclusion of Iran in this discussion might reflect his belief that Jared’s effort to spread Trumpism around the Middle East will bring Iran into the fold — or perhaps it reflects the efforts of his Russian buddies to view Iran as an ally.

But I found it interesting given that Iran not only targeted his rat-fucker and his campaign manager for hacking, but also allegedly tried to hire hitmen to assassinate him.

All the more so given how Trump lied about DOJ’s focus on Iran when he responded to DOJ’s exposure of the RT influence laundering last week at his equally batshit appearance in Mosinee, WI.

Did you see? Three days ago, it started again. The Justice Department said Russia may be involved in our elections again. You see that, Mr. Congressman, great Congressman from Texas? You see that Russia — it’s Russia. And you know? The whole world laughed at him this time, 2.5 years, not a phone call made to Russia, not anything to do with Russia but stopping their pipeline and lots of other things that people approved. And they said just the other day, the Attorney General, we are looking at Russia, and I said, oh no. It’s Russia Russia Russia all over again. But they don’t look at China and they don’t look at Iran. They look at Russia. I don’t know what it is with poor Russia. This is very, very. But you know what? Russia would have never happened if I were President, attacking Ukraine would never have happened. I knew Putin. I knew him well. And you know, he endorsed — I don’t know if you saw the other day? He endorsed Ka-Mala. He endorsed Ka-Mala. I was very offended by that. I wonder why he endorsed Ka-Mala. Now, he’s a chess player. I endorse Ka-Mala. Should I be congressman, should I be upset about that? Now, it was done with a smile — Ron? Was it done with a smile? I think it was done. Maybe with a smile. I don’t know who the hell knows. Nobody is going to figure out. There are about 19 steps ahead of us but this whole Russian thing, nobody, was tougher on Russia in history than Trump and the person that knows that better than anyone is President Vladimir Putin.

Trump acknowledged the hack at his Bedminster presser — where he also predicted “we will be friendly with Iran.”

I originally thought this response from Trump was a response to the Ukraine question, I think, instead, he was responding to the hacking question.

Can you say anything about the hacking of your campaign?

I don’t like it. Really bad. I’m not happy with it. Our government shouldn’t let that happen.

Does there need to be a government response?

Yeah there should be. Our government should not let — they have no respect for our government.

Trump blamed the government after, earlier in the Potemkin Presser, he had already predicted that “we” will be friendly with Russia’s increasingly critical ally, Iran.

We will be friendly with Iran. Maybe, maybe not. But they cannot have a nuclear weapon. We were all set to make sure they did not have a nuclear weapon.

But last week, he lied about it. He lied and suggested that DOJ would never look at Iran’s influence operations, even though the Deep State has twice done what they did last week with Russia, attribute Iran’s effort to interfere in the election, in that case by harming Trump, and do so before the Trump campaign alerted the FBI to the hack.

Trump was targeted for hacking (and, allegedly, assassination) by Iran. And yet he’s hiding that when he dismisses DOJ’s similar focus on Russian influence operations.

Michael Sherwin Failed to Brief Merrick Garland on Trump’s Suspected Egyptian Payment

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WaPo significantly advances the story of the suspected $10 million Egyptian payment to Trump — including the role of China in it.

The investigation started when the CIA got a tip from a reliable informant that Egypt had paid Trump the money.

In early 2017, Justice Department officials were briefed on initial reports from the Central Intelligence Agency that Sisi had sought to send money to Trump.

The intelligence had come partly from a confidential informant who had previously provided useful information, according to people familiar with the matter.

That led to Mueller’s focus on Trump’s decision to inject the same amount into his campaign after meeting with Abdel Fattah El-Sisi in September 2016.

Trump repeatedly declined — until Oct. 28, roughly five weeks after the meeting with Sisi, when he announced the $10 million infusion.

As described, Mueller focused on Trump’s finances in 2016, but prohibited investigators from looking at his finances after he became President. Instead, they subpoenaed the Egyptian National Bank, which led to the extended legal fight. Materials finally provided by the bank showed a transfer from Shanghai…

The Research and Studies Center opened an account at the bank’s Heliopolis branch in November 2015, the bank’s records showed. In August 2016, the center opened a second account, this time in the bank’s Shanghai branch. Five days after that, a company that investigators believed was tied to an Egyptian oligarch initiated a transfer of $10 million into the center’s Shanghai account, records showed.

The transfer was held up, then cleared for deposit in Shanghai in December, the records showed. The same amount was transferred from that account to the center’s account at the Heliopolis branch shortly before the cash withdrawal there on Jan. 15, 2017.

Three days later, the center closed its account in Shanghai. Within 90 days, its account in Heliopolis was closed, too.

… And following that, a request from a likely Egyptian intelligence front to withdraw the same sum in cash.

A short handwritten letter dated Jan. 15, 2017, in which an organization called the Research and Studies Center asked that the bank “kindly withdraw a sum of US $9,998,000” from its Heliopolis branch, located about seven miles from Cairo International Airport. According to the bank records, employees assembled the money that same day, entirely in U.S. $100 bills, put it in two large bags and kept it in the bank manager’s office until two men associated with the account and two others came and took away the cash.

In summer 2019, after being spun under DC USAO, the FBI was asking for permission to subpoena records from Trump’s 2017 finances. But then Jessie Liu met with Bill Barr, reviewed the underlying CIA intelligence herself, and grew hesitant about further investigative steps.

Sometime after her June meetings with the FBI, Liu met with Barr to discuss the Egypt case. He urged her to personally review the underlying information from the CIA that had prompted the opening of the criminal investigation two years earlier, according to people with knowledge of the discussions.

[snip]

Sometime around September 2019, FBI agents and a supervisor from the field office presented what they considered an ultimatum to Liu: authorize getting Trump’s 2017 bank records or it wasn’t worth continuing to investigate, according to people later briefed on the exchange. Liu listened but turned them down; she said she wasn’t closing the case and was open to subpoenaing Trump’s records later on if agents turned up more compelling evidence to justify doing so, these people said.

After Barr replaced Liu with first Tim Shea and then Michael Sherwin, Sherwin shut down the investigation on June 7, 2020.

Sherwin, the only person quoted in the piece, taunted that Merrick Garland could have reopened the case.

In an interview with The Post, Sherwin said Biden administration appointees, including Attorney General Merrick Garland, who took over the department months later, could have relaunched the probe if they disagreed. “The case was closed without prejudice,” he said. “Anyone could have reopened the case the second I left that office.”

The case was not reopened.

Except, as the last paragraph of the story describes, partly amid the rush of cases in the wake of January 6, Garland and his top aides were never briefed on the case in their first year in office — which for Garland, who wasn’t sworn in until March 11, 2021, would be March 2022.

Garland, senior members of his team, and Biden’s new U.S. attorney in D.C. were never briefed on the Egypt investigation in their first year in office, one former and one current government official told The Post.

The Statute of Limitations expired on January 15, 2022.

There’s still at least one hole in this story.

The money was deposited in Shanghai in August 2016. That’s before the September meeting between al-Sisi and Trump. Though at a time when Trump’s people — including both George Papadophoulos, who played a key role in setting up the meeting with al-Sisi, and Walid Phares, who was investigated for ties to Middle Eastern intelligence — were negotiating a meeting with Russia, in London, in September 2016.

Papadopoulos communicated with Clovis and Walid Phares, another member of the foreign policy advisory team, about an offthe-record meeting between the Campaign and Russian government officials or with Papadopoulos’s other Russia connections, Mifsud and Timofeev.480 Papadopoulos also interacted directly with Clovis and Phares in connection with the summit of the Transatlantic Parliamentary Group on Counterterrorism (TAG), a group for which Phares was co-secretary general.481 On July 16, 2016, Papadopoulos attended the TAG summit in Washington, D.C., where he sat next to Clovis (as reflected in the photograph below).482

Although Clovis claimed to have no recollection of attending the TAG summit,483 Papadopoulos remembered discussing Russia and a foreign policy trip with Clovis and Phares during the event.484 Papadopoulos’s recollection is consistent with emails sent before and after the TAG summit. The pre-summit messages included a July 11, 2016 email in which Phares suggested meeting Papadopoulos the day after the summit to chat, 485 and a July 12 message in the same chain in which Phares advised Papadopoulos that other summit attendees “are very nervous about Russia. So be aware.”486 Ten days after the summit, Papadopoulos sent an email to Mifsud listing Phares and Clovis as other “participants” in a potential meeting at the London Academy of Diplomacy.487

Finally, Papadopoulos’s recollection is also consistent with handwritten notes from a journal at that time.488

[snip]

These are the notes that Papadopoulos professed to be unable to read when meeting with Mueller’s investigators.

This story is also silent about Russia’s role in convincing Egypt to withdraw a UN resolution against Israel after Trump intervened in December 2016.

Finally, recall that Erik Prince and Kyrill Dmitriev met in the Seychelles on January 11 and 12.

On Eve of Opening Arguments, WSJ Launders David Weiss’ Russian Disinformation Problem

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WSJ has a weird story that purports to describe Merrick Garland’s oversight of Special Counsels.

It twice suggests only the left has complained about a perception that Garland slow-walked the January 6 investigation.

Garland has also become the subject of ridicule on late-night talk shows, including by comedian Bill Maher, who in May echoed the grievances of many on the left when he referred to Garland as “a purse dog” rather than a pit bull.

[snip]

But many on the left wanted more. Some wanted prosecutors to also pursue an aggressive case against Trump himself, specifically for inciting the mob.

That will come as a surprise to Liz Cheney, who was among those claiming that Garland was working too slowly.

It reveals that Robert Hur was considered for the job given to Jack Smith and confirms my suspicions that the decision to hire him came from Lisa Monaco’s office, not Garland’s.

An aide drafted a secret contingency plan, to assign the Jan. 6 investigation related to Trump to a special counsel. At the top of the list of candidates was Smith, a former U.S. prosecutor who was then the chief prosecutor at The Hague investigating war crimes in Kosovo. The deputy attorney general’s office also considered Hur, who at the time was a defense lawyer in private practice, for the post.

But it makes no mention of how DOJ came to consider Hur for the job after settling Andrew McCabe’s lawsuit because he had been denied due process rights in his firing. Hur was a key player in that process of denying McCabe his due process, and yet Garland hired him to investigate Joe Biden.

It even gets the timeline of Hur’s hiring incorrect, ignoring the months of investigative steps taken by John Lausch before Hur was hired.

It mentions Brad Weinsheimer’s role in allowing Rob Hur to emphasize Biden’s age in his report, rather than the fact that Hur couldn’t even prove the documents that might have been intentionally withheld took the path he imagined they might have.

Biden’s lawyers read it and were aghast, objecting to “certain aspects of his draft report that violate Department of Justice policy and practice by pejoratively characterizing uncharged conduct,” they wrote to Garland. They wanted him to take a firmer hand with the special counsel he appointed and whose report they and some former Justice Department officials saw as gratuitous.

Garland didn’t respond, taking the same approach he had with other special counsels. He wasn’t going to step in to protect his boss. Instead, adhering to the Watergate-era policy he helped enshrine, he left it to the agency’s senior career official, Bradley Weinsheimer, who said the language in the report “fell well within the Department’s standards for public release.” Garland, as promised, released it the following day, Feb. 8.

But it doesn’t talk about how having Weinsheimer serve as supervisor for Special Counsels effectively eliminates any DOJ review of ethical violations, which role Weinsheimer would otherwise play.

Most bizarrely, it makes absolute no mention of John Durham, whose investigation Garland oversaw for over two years. It doesn’t explain, for example, why Durham was permitted to fabricate a conspiracy theory against Hillary Clinton in his report. It doesn’t explain why Durham’s lead prosecutor, Andrew DeFilippis, left with little advance notice, between Durham’s twin failed trials, at a time when many witnesses were making claims of abuse.

In short, whatever else this story is, it is not a story that is remotely useful for understanding Merrick Garland’s oversight of Special Counsels.

And in this story that doesn’t do what it says, on the eve of opening arguments in the Hunter Biden gun case, it launders David Weiss’ Russian disinformation problem.

By 2022, prosecutors and agents had already believed that Hunter Biden committed tax crimes, but Weiss still seemed no closer to charging him or resolving the case. FBI officials asked Garland’s office if he could help move Weiss along.

Garland refused to prod Weiss, saying he had promised him broad independence to pursue the inquiry as he saw fit.

FBI agents drafted a list of final steps to push the probe forward—including to follow up on allegations from an FBI source that tied Hunter Biden’s financial misdeeds directly to his father.

Weiss’s office reached a tentative plea deal with Hunter Biden in June 2023, in an agreement that would likely include no jail time. Republicans in Congress alleged that Hunter Biden was getting a sweetheart deal, which fell apart a month later. In August, Weiss asked Garland to make him a special counsel, pointing to the FBI’s list and asking for independence. Garland agreed, recognizing that he had earlier promised Weiss autonomy and any resources he sought. [my emphasis]

To be sure, this might be one of the only truly interesting pieces of news in the piece.

What WSJ is describing (including a journalist, Sadie Gurman, who has had good access to Bill Barr in the past) is that the FBI, including people senior enough to be able to complain to Garland personally, was demanding that David Weiss follow up on Alexander Smirnov’s attempt to frame Joe Biden.

Indeed, this passage wildly conflicts with what David Weiss claimed in the Smirnov indictment — that the FBI just came along in July 2023 and requested that Weiss help investigate (but we knew that was false in any case).

And it does seem to confirm what has been clear for a while: the reason David Weiss asked to be made Special Counsel is so he could chase Smirnov’s allegations.

But somehow WSJ neglects to mention the issue — the several issues — that go to the core of Garland’s inadequate oversight of Special Counsels. First, how was this allowed to get this far? How were senior FBI people bugging Garland about this allegation when the most basic vetting of travel records debunked it? How was the FBI chasing an allegation from a guy who had recycled debunked Fox News propaganda? How was David Weiss permitted to demand Special Counsel status, and renege on the plea deal he made with Hunter Biden, based on a tip he had been given back in 2020?

How is that not election interference?

Just as importantly for the issue of Special Counsel oversight, how can Garland leave Weiss in charge of the Smirnov allegation, when he is a witness to the process — implicating Bill Barr and Scott Brady — that ended up mainstreaming it?

And more importantly, WSJ never mentions that the tip turned out to be a hoax from a guy with close ties to Russian intelligence.

How do you write a piece describing that the FBI was pushing Garland to chase what may be Russian disinformation (and in any case is a hoax from someone with Russian ties), and fail to mention that it was a fabrication?

How, on the eve of opening arguments in the Hunter Biden case, do you launder the fact that David Weiss reneged on Hunter Biden’s plea deal because he was chasing false claims from a guy with close ties to Russian intelligence?

The “Waiting for Mueller” Mistake and the Right Wing Bubble

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Simon Rosenberg didn’t panic about a 2022 Red Wave. As analysts everywhere were wailing that the Sky Was Falling, he was quietly confident.

Keep that in mind as you listen to this conversation he had with Greg Sargent. I have about the same cautious optimism as Rosenberg (I was less confident than he was in 2022) on this year’s election, but he’s a pro who works from fundamentals, not just last week’s poll results.

Among other things, he talks about how any of six big negatives for Trump could blow the election for him:

  1. He raped E. Jean Carroll in a department store dressing room
  2. He oversaw one of the largest frauds in America history and that he and Rudy Giuliani through all their various misdeeds own over $700M dollars
  3. He stole American secrets, lied to the FBI about it, and shared these secrets with other people
  4. He led an insurrection against the United States
  5. He and his family have corruptly taken billions from foreign governments
  6. He is singularly responsible for ending Roe and stripping the rights and freedoms away from more than half the population

I would add two more: First, Trump routinely defrauds MAGAt supporters. Over the last week, he turned the RNC into a means to do so on a grander scale. Republicans need to hear that they’re being taken to the cleaner by Trump — and by Steve Bannon, whose trial for doing so will also serve as backdrop to this election season.

More tellingly, Rosenberg addressed this detail when he described how Biden’s two big negatives have resolved (my biggest complaint about this interview is it didn’t address Gaza, the unmentioned third), not when he addressed Trump’s scandals.

The Biden crime family story, we just learned in the last few weeks, was a Russian op that was being laundered by the Republican party that blew up in their face.

Rosenberg treated the manufactured “Biden crime family” that was actually a Russian op laundered by the GOP as a resolved Biden negative after he made this point, the most important in the interview, in my opinion.

We have to learn the lesson from waiting for Mueller. Waiting for Mueller was a mistake by the Democratic Party. It prevented us from prosecuting the case against Trump and his illicit relationship with the Russian government that was out there all for us to see. Right? The Russians played a major role in his election in 2016. This is not in dispute in any way. And so I think now what we need to do is not wait for Jack Smith or wait for Merrick Garland. We need to use what’s in front of us and prosecute this in ways that we know is going to do enormous harm.

No superhero will come tell any one of these stories for Democrats. Trump’s opponents have to tell the story of Trump’s corruption. They cannot wait for Mueller. Or Jack Smith.

One of many reasons I’m so focused on the Hunter Biden story is that it is actually what proves the continuity of that story of Russian influence that Democrats failed to tell. Trump asks for Russian help in 2016 and gets it. As part of a campaign in which Rudy Giuliani solicited Russian spies for dirt on Hunter Biden, Trump withheld security support from Ukraine to get the same. Even after that, Trump’s DOJ created a way to launder the dirt Rudy collected from known Russian spies to use in the 2020 election. That campaign created the shiny object that has created the “Biden crime family” narrative. Like Russia’s role in the 2016 election, none of this is in dispute. It’s just not known.

You cannot wait for Robert Mueller or Jack Smith to tell this narrative. But for four months this entire story — this arc — has passed largely unnoticed, even as Trump took steps to deliver Ukraine’s bleeding corpse to his liege, Vladimir Putin.

Those who want to defeat Trump — and honestly, Republicans like Liz Cheney and Amanda Carpenter have been doing a better job of this than most Democrats — have to make sure this story gets told.

This is what I’ve been trying to say over and over and over. The reason why the moderate press hasn’t been telling the story of Trump’s role in the insurrection, of his ties to militia members and his direct inspiration for the most brutal assaults on cops on January 6 is because all their TV lawyers have been whinging instead about their own misunderstanding of the January 6 investigation. They haven’t been telling the story of what we know.

They have been complaining that Merrick Garland hasn’t compromised the investigation to tell them them more, turning Garland into their villain, not Trump.

In the few minutes after I posted these comments on Twitter, commenters have:

  • Complained that the full Mueller Report hasn’t been released, when really they’ve simply been too lazy to understand that the most damning bits have been released.
  • Bitched that Merrick Garland hired Rob Hur, rather than bitching about Rob Hur telling a narrative even after his own investigation had debunked it.
  • Complained about a delay in the January 6 investigation that didn’t happen.

Kaitlan Collins’ interview with Brian Butler, a former Trump employee whose testimony badly incriminated his one-time best friend, Carlos De Oliveira, has been drowned out by all the complaints.

The story barely made a blip. It’s not just the NYT that buries important Trump stories under complaints about Biden, it’s Democratic supporters.

Rosenberg went on to describe how Democrats need to improve this. He noted that the Right Wing noise machine provides them a great advantage on this front, one that Biden will have to spend to combat.

We have to recognize, Greg, that the information environment in the United States is really broken right now and that the power of the Right Wing noise machine to bully and intimidate mainstream media into being complicit in advancing some of their narratives is something that needs a campaign that has half a billion dollars in it to be able to draw even on. What we’ve learned is there is a structural imbalance in the information game between the two parties, that the Republicans have a significant advantage over us in a day-to-day information war.

This is true. But the insularity of the Right Wing noise machine can be made into a weakness for Republicans, even before spending the money. Because right wingers so rarely try to perform for a mainstream audience, as soon as they do — whether it is rising star Katie Britt or Kentucky redneck James Comer — they look like lying morons.

And in the face of that Right Wing noise, Democrats need to be disciplined.

The Biden campaign’s going to have to be wildly disciplined. They can’t chase the daily story. They’re going to have to pick the two or three things they know from research are the things that are a rubicon with the electorate.

[snip]

It’s going to be incumbent upon them to not allow the Trumpian mania and madness sort of push them around every day. They’re going to need to develop an offensive strategy both on what we’re selling and on what we’re indicting him with.

Rosenberg laid out the six bullets; I added two more. Trump will try to distract from that with daily outrages, with spectacle.

Trump — abetted by social media — will try to distract from that argument by demeaning all ability to make, or understand, coherent arguments.

I’m less sanguine than Rosenberg that even discipline is enough to overcome Trump’s circus. Therein lies the challenge.

But he’s right that those who want to defeat Trump have to make that case themselves. Neither Jack Smith, nor the NYT, will save you.

emptywheel Takes to MSNBC to Explain the January 6 Investigation

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MSNBC was kind enough to invite me to make the case, again, that those blaming Merrick Garland for delays in the January 6 investigation simply aren’t familiar with the investigation. Readers will be familiar with much of this, but two details are new.

First, I describe what investigative steps prosecutors had to take to prepare the most obvious piece of evidence, Trump’s 2:24 tweet targeting Mike Pence.

Take the tweet Trump sent at 2:24 p.m. Jan. 6: “Mike Pence didn’t have the courage.” It was right there in public! But to present that in court first required the exploitation of at least two phones, nine months of fights over executive privilege, a 23-day stall from Twitter and two sets of interviews with at least eight different top aides.

And something that’s long overdue: Holding the January 6 Committee responsible for their unnecessary delays, which almost bolloxed the Proud Boys trial.

One delay that was unnecessary was caused by some of the people who most loudly blamed Garland: the Jan. 6 Committee. DOJ first asked the committee for witness transcripts in April 2022. That June, prosecutors in the trial of leaders of the Proud Boys agreed to reschedule their trial from August until December because the committee would not release transcripts until September. The prosecutors were vindicated when those transcripts finally came out in December, after three additional months of delay and jury selection had already started. Twice during the trial, prosecutors learned that witnesses had told the committee something they hadn’t told the FBI; in one instance, a committee transcript revealed an attorney conflict that threatened prosecutors’ reliance on testimony from their most important cooperating witness. Given that court filings suggest Smith will treat the Proud Boys akin to co-conspirators when this case finally goes to trial, those are the kinds of unnecessary screw-ups that could jeopardize Trump’s trial itself.

Navel-Gazing: The Ethics Problem Caused by Merrick Garland’s Brad Weinsheimer Solution

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I want to talk about DOJ’s career Associate Deputy Attorney General position. I think the way Merrick Garland is using that position to supervise Special Counsel investigations has contributed to the ethical lapses we’re seeing from them.

The current occupant of that role, Bradley Weinsheimer, has garnered attention in recent weeks for his role in some letters exchanged between lawyers for President Biden and DOJ. Between Politico, WaPo, and NYT stories on the letters, they describe the following exchanges:

There’s no report that anyone responded to any of Biden’s 2023 letters. Hur published the letter from Ricard Sauber and Bob Bauer letter in the report, without addressing most of his inappropriate statements. But, after Garland apparently referred the February 7 letter from Ed Siskel and Bauer to Weinsheimer, the ADAG responded to that, while referencing the letter to Hur.

Brad Weinsheimer blows off half Biden’s complaints

After describing that he “serve[s] as [DOJ’s] senior career official,” Weinsheimer proceeded to mischaracterize both the February 5 and the February 7 letters by claiming the complaints were “substantially similar.”

The objections you raise in your letter to the Attorney General are substantially similar to the objections you raised in your February 5, 2024 letter to Special Counsel Hur. In both letters, you contend that the report contains statements that violate long-standing Department policy.

That’s incorrect. They’re not substantially similar. The February 5 letter included the following:

  • Bullets one and two (about two pages total) complaining about prejudicial comments
  • Three bullets (three through five) about misrepresentations Hur made to substantiate his Afghanistan narrative, none of which Hur addressed in the report
  • Bullet six discussing the awareness of Biden’s staffers of his diaries
  • Bullet seven that included six other complaints, the last three of which Hur fixed, the first three of which — including the make-believe comment about an attorney-client privileged conversation — he left in

One of those items in bullet seven had to do with Hur’s claim, in the first draft, to have reviewed all the classified information in Reagan’s diaries; he added the word “some” in the final to make it accurate.

The letter to Garland addressed two topics, the second of which was Hur’s use of prejudicial language. Before it addressed Hur’s old geezer comments, though, the letter complained that Hur misrepresented DOJ’s past treatment of presidential and vice presidential diaries, a combination of bullet two, bullet six, and the Reagan diary complaint from the February 5 letter.

Rather than deal with the treatment of diaries, Weinsheimer appears to have just lumped the first part (bullet two in the original) in with the old geezer comments, resulting in Weinsheimer’s mischaracterization of the diaries complaint: Here’s how he described the two complaints.

In particular, you first highlight brief language in the report discussing President Biden’s use of the term “totally irresponsible” to refer to former President Trump’s handling of classified information. Second, you object to the “multiple denigrating statements about President Biden’s memory.”

And based on that mischaracterization, even while claiming to have “carefully considered your arguments,” Weinsheimer issued DOJ’s conclusion that Hur acted within DOJ guidelines.

Having carefully considered your arguments, the Department concludes that the report as submitted to the Attorney General, and its release, are consistent with legal requirements and Department policy. The report will be provided to Congress and released publicly, consistent with Department practice and the Attorney General’s commitment to transparency.

With that characterization, Weinsheimer blew off a number of requested corrections in the letter to Hur — such as the one that Hur invented a hypothetical attorney-client conversation to make the discovery of a box with classified documents in the Wilmington garage more suspicious — and also blew off most of the first half of the letter to Garland, addressing the past treatment of diaries.

The problematic function of the senior Associate Deputy Attorney General

I’m not so much interested in litigating Weinsheimer’s answer: that it was cool for Hur to use prejudicial language, including things like his invented attorney-client conversation. I’m interested in the fact that he claimed to address both the letter to Hur and the letter to Garland and, based on that claim, issued a definitive policy judgment. I’m interested in the function Weinsheimer is playing, because I think it is one thing contributing to the tolerance for ethical lapses among Special Counsels under Merrick Garland.

Politico describes Weinsheimer’s role in making that decision this way:

The next day, Feb. 8, Weinsheimer, the associate deputy attorney general, responded to the letter on behalf of the department. Weinsheimer, a civil servant who has worked at the department for decades, oversees the department’s most politically sensitive matters, including questions on ethics. He has fielded complaints from Hunter Biden’s lawyers about special counsel David Weiss and from Trump’s lawyers about special counsel Jack Smith.

That is, Politico treats Weinsheimer’s role as the traditional role of the career Associate Deputy Attorney General, the guy (if I’m not mistaken, it has always been a guy) one appeals to for ethical review.

That understanding of the role goes back to a guy named David Margolis, who is treated as a saint among DOJers. For 23 years, Margolis served as the guy who’d make the hard decisions — such as what to do with the prosecutors who botched the Ted Stevens prosecution or, worse yet, John Yoo’s permission to torture.

In 1993, he was named associate deputy attorney general. He worked for the deputy attorney general, essentially the chief operating officer of the department. “We would give all the hairballs to [Margolis], all the hardest, most difficult problems, the most politically controversial,” recalled FBI Director James B. Comey, a former deputy attorney general.

Vince Foster’s suicide. Ted Stevens’s botched prosecution for public corruption. The leak of Valerie Plame’s identity. The firings of U.S. attorneys. Margolis was involved — in some way — in them all.

Undoubtedly the most controversial issue he has dealt with came in the early years of the Obama administration. The department’s internal watchdog, the Office of Professional Responsibility, had determined that former Office of Legal Counsel lawyers John Yoo and Jay Bybee had engaged in professional misconduct in writing two memos that gave legal sanction to the use of torture tactics such as waterboarding, as well as wall slamming, extended sleep deprivation and other extreme techniques used by the CIA to interrogate terrorist detainees. Margolis had to decide whether to endorse the OPR’s recommendation that the two lawyers from the Bush administration, who by then had left government, be disciplined.

That was the decision “I agonized over most,” he said. “I knew it would be controversial whichever way it came down.”

In a memo written in January 2010, he conceded that “Yoo’s loyalty to his own ideology and convictions clouded his view” of his professional obligation. But, he concluded, Yoo did not “knowingly” provide inaccurate legal advice and he overturned the OPR recommendation.

That set off a firestorm of criticism from Democratic lawmakers, civil liberties advocates and human rights activists.

“I don’t want to accuse him of bad faith,” said David Luban, a Georgetown University Law Center professor of law and philosophy. “But I will accuse him of bad reasoning.”

But as bmaz wrote on Margolis’ passing, often as not decisions advertised as an ethical decision seemed instead to protect the institution of DOJ.

Sally Yates is spot on when she says Margolis’ “dedication to our [DOJ] mission knew no bounds”. That is not necessarily in a good way though, and Margolis was far from the the “personification of all that is good about the Department of Justice”. Mr. Margolis may have been such internally at the Department, but it is far less than clear he is really all that to the public and citizenry the Department is designed to serve. Indeed there is a pretty long record Mr. Margolis consistently not only frustrated accountability for DOJ malfeasance, but was the hand which guided and ingrained the craven protection of any and all DOJ attorneys for accountability, no matter how deeply they defiled the arc of justice.

After Margolis passed, a guy named Scott Schools played that role for a short period spanning the Obama and Trump years. In such role, in my opinion, he protected the Deputy Attorney General’s office more than DOJ. As one example, Schools was the guy who helped push Andrew McCabe out the door to serve Donald Trump’s whims.

Which is when, in 2018, Jeff Sessions put Weinsheimer, who had played a NatSec role prior to that, in the post.

For the purposes of this post, I’m not really interested in whether Weinsheimer is a good guy or not. There are journalists who are better placed than I am to go chase that down.

I want to talk about how his role on Special Counsels likely ensures an ethical conflict — and all that’s before you consider the extremely likely possibility that he signed off on the McCabe settlement and then was involved in Hur’s selection and supervision, which would be a separate conflict of his own.

Weinsheimer is the supervisor of David Weiss

I don’t dispute Politico’s characterization of how the ADAG position normally works. As laid out in the Margolis bio, the position is supposed to make the difficult decisions and then give such decisions, arguably meant to protect DOJ, the appearance of ethical gravitas. One is supposed to be able to appeal to the ADAG position, in case of ethical problems.

But that depends on the ADAG being outside of potentially unethical decisions in the first place. You can’t review decisions if you were part of them.

At least in the case of David Weiss, Weinsheimer can’t play that role because he is, for all intents and purposes, Weiss’ supervisor — apparently on all matters, not just the Hunter Biden investigation.

In his November testimony to Congress, Weiss described that he has never spoken to his nominal boss, Lisa Monaco, or the person via whom he would normally communicate to his boss, the current Principal Associate Deputy Attorney General, Marshall Miller (as noted below, he described communicating via Miller’s predecessor until 2022, John Carlin).

Q When you have interactions with Justice Department Headquarters or Main Justice, how does that ordinarily happen? Who is your primary point of contact?

A I don’t know that there is an ordinary. I don’t know that I would designate anyone in particular.

Q Under the reporting structure, though, you report up through the Deputy Attorney General. Is that correct?

A That’s correct.

Q And how often do you talk with Ms. Monaco?

A I have never spoken with Ms. Monaco.

Q You’ve never spoken to her?

A Never.

Q Okay. And do you have communications with someone else in the office? Maybe the PADAG?

A I have — my point of contact for the last year, year and a half has been Associate Deputy Attorney General Weinsheimer.

Q Okay. So you’re not in contact on a regular basis with the PADAG, Mr. Miller?

A I am not.

Q Have you ever had communications with him?

A I have not.

Q Okay. So you’ve never had any communications with Marshall Miller or Lisa Monaco?

A I have not.

By his description, he speaks to Weinsheimer regularly, about once a month, and those communications primarily pertain to the President’s son.

Q Okay. And how often do you have communications with Mr. Weinsheimer?

A It varies depending upon what’s going on. But I would say we’ve spoken, before August of 2023, approximately once a month, sometimes more frequently.

Q And was it related to the Hunter Biden case, or was it related to your ordinary duties?

A Generally, it was related to the Hunter Biden case investigation.

That same pace has continued during the period since he had been named Special Counsel.

Chairman Jordan. Have you kept up the rhythm? You said earlier today that you had monthly contacts with the key people at the Justice Department. Have you kept up that same protocol? Has it increased or decreased as Special Counsel?

Mr. Weiss. I guess it’s been, I guess, 3 months. I don’t know that there is much of a practice or that I could say, you know, circumstances. You know, I’ve had several conversations in the last 3 months with Mr. Weinsheimer. I can say that.

Chairman Jordan. So it’s picked up?

Mr. Weiss. It’s — I’ve had probably — yes, several conversations. Whether that will continue or it was unique to the initial stages of the project, I really can’t speak to.

When Weinsheimer reached out to the then-PADAG, Carlin — again, the normal person he would report to — Carlin involved Weinsheimer in all discussions about how to get Special Attorney (not Special Counsel) status to charge the case in a different District with Weiss.

Q Okay. And when did Mr. Weinsheimer first start having communications with you about the Hunter Biden case?

A I think we first spoke about the case in the spring of 2022.

Q And, to the extent you can tell us, what were the nature of those discussions?

A In 2022?

Q Yeah.

A Actually, more accurately, February of 2022, I think, was the first time we spoke. And I would have reached out because we were looking to bring certain portions of our investigation to either D.C. or L.A. At that time, D.C.

Q Okay. Did you call him, or did he call you?

A I reached out by email to the Principal Deputy Attorney General at that time, John Carlin.

Q Okay. So he was the PADAG before Mr. Barr [sic]?

A Correct.

Q And how often had you spoken with Mr. Carlin?

A Before this? Never.

Q Okay. So you initiated email contact with Mr. Carlin, and he referred you to Mr. Weinsheimer?

A I initiated email contact with Mr. Carlin, and I subsequently had a conversation with John Carlin, and I believe Brad Weinsheimer was on the call.

Q Okay. And what did they tell you about bringing the case in D.C. or different jurisdictions from yours?

A We discussed the fact that I would — they wanted me to proceed in the way it would typically be done, and that would involve ultimately reaching out to the U.S. Attorney in the District of Columbia. I raised the idea of 515 authority at that time because I had been handling the investigation for some period of time. And, as I said, they suggested let’s go through the typical process and reach out to D.C. and see if D.C. would be interested in joining or otherwise participating in the investigation.

So Weinsheimer was the primary supervisor of David Weiss on the Hunter Biden case.

That makes the meeting with Hunter Biden’s previous attorneys with Weinsheimer — which is fairly routine but was billed as a huge scandal by right wing nutjobs — something else entirely. As Politico described, after months of asking the people who should have had some supervisory role in the investigation, Clark finally emailed Weinsheimer asking whether he could appeal to him.

From the fall of 2022 through the spring of 2023, Clark sought meetings with people at the highest levels of the Justice Department — almost entirely without success. In multiple emails, he asked to meet with the head of the Criminal Division, the head of the Tax Division, the Office of Legal Counsel, the Office of the Solicitor General, Deputy Attorney General Lisa Monaco and the attorney general himself. On Feb. 21, 2023, Clark’s team reached out to multiple officials at Main Justice, who passed his request from one person to the next.

The search ended when Clark sent Associate Deputy Attorney General Bradley Weinsheimer an exasperated email, saying he had asked the government over and over to tell him who at headquarters they could appeal to if Weiss decided to charge their client.

“To date we have heard nothing in this regard,” he added.

“Please advise whether you would be the appropriate person to hear our client’s appeal, in the event that the U.S. Attorney’s Office decides to charge Mr. Biden,” he wrote.

Weinsheimer was indeed the right guy, and he met with Clark and Weiss on April 26.

As Weiss confirmed in his testimony, he attended that meeting with Weinsheimer.

Q Did Mr. Weinsheimer ever tell you that he met with Chris Clark?

A He — if — no. If he met with Chris Clark, I would have been at that meeting.

Q Okay. So there were no one-on-one meetings or telephone calls between Mr. Clark and Brad Weinsheimer?

A I am unaware of any such meeting, and I don’t think any such meeting would have occurred.

Of course Weinsheimer wasn’t going to accede to any of Clark’s requests, or even grant an independent review of some of the shitty things that had already gone on in the case. Presumably unbeknownst to Clark, Weinsheimer was signing off on Weiss’ actions all along.

And he didn’t. Two weeks after they met with Clark, Weinsheimer sent Clark a letter, “referring you back to” Weiss, saying that Weiss had full authority to charge the case wherever he wanted. It’s not clear that Weinsheimer ever revealed that he had assumed a supervisory role on the case a year earlier.

If Weinsheimer played a similar role with Robert Hur, the same would be true. Of course Weinsheimer wouldn’t, in that case, take action after Hur violated DOJ policy by smearing the President. That’s because Weinsheimer would have been in on it, part of the smear.

Except for the Special Counsel appointment

As David Weiss told it, there was an important exception that may have, may still, exacerbate all this.

He did not go through Weinsheimer when requesting Special Counsel authority.

Q And, when you submitted the request, was that through Mr. Weinsheimer?

A No. No, it wasn’t.

Q Did you have communications with Mr. Weinsheimer before you submitted the request?

A I did not have communications with Mr. Weinsheimer about the request before I submitted it.

Q Okay. You just went right to the Attorney General?

A I submitted the request on my own initiative, and, otherwise, I really can’t get into the particulars at all.

Q Right. Have you had subsequent conversations with Mr. Weinsheimer? Is he the individual that you reported to, or —

A After I was appointed?

Q Correct.

A Yes. I continue to discuss the matter with Mr. Weinsheimer.

Q So he’s your primary point of contact still?

A He continues to be my primary point of contact, yes.

And that communication with Merrick Garland was, at least at the time of Weiss’ testimony on November 7 (and so just over a week before Abbe Lowell started asking for discovery and subpoenas on the side channel and the Smirnov FD-1023), the only time he had ever communicated, in any form, with the Attorney General.

Q So the Attorney General has had a couple of silent appearances where this topic has come up, and I guess the question is, did you have direct communications with the Attorney General?

A I’ve never had any direct communications with the Attorney General, save my communication in requesting Special Counsel authority in August of 2023.

Q When you did request Special Counsel authority in August of 2023, how did you request it? Was it in writing or on the telephone?

A It was in writing, and that’s about all I’m going to say about that process.

Q Okay. Did you reach out directly to the Attorney General, or did you go through Mr. Weinsheimer?

A I’m not going to get into anything further. I requested it, and it was granted.

Q Okay.

I started writing this post before the arrest of Alexander Smirnov. At the time, I thought that Weiss might have gone directly to Garland only because Garland had promised the Senate he’d give Weiss Special Counsel authority if ever he asked it. That is, before the Smirnov arrest, it looked only like Weiss collecting on Garland’s promises.

No longer.

The significance of this has been missed. The FD-1023 assessment number, 58A-PG-3250958, cited Executive Branch public corruption. The only way the FD-1023 could be basis for ongoing criminal investigation is if Joe Biden were a subject of the investigation as well. That would make the Special Counsel request not a request for authority to charge in other Districts.

It would arise from the conflict of investigating the President.

Before even interviewing the informant’s handler — to say nothing of Smirnov himself — David Weiss got himself Special Counsel authority.

Few agree with me. But I think Weiss has walked himself into a shitshow. Even assuming that none of Abbe Lowell’s bids to throw out the indictments in Delaware and Los Angeles succeed — and the Smirnov indictment would seem to raise still more questions about why Weiss reneged on the plea deal — there’s good reason to believe the motion to suppress evidence from the laptop will surprise a good number of people, including the prosecutors. Consider what it means that attorneys for John Paul Mac Isaac abandoned their argument that the blind computer repairman had legal authority to snoop through and disseminate data he claims to believe belonged to Hunter Biden, focusing seemingly exclusively on a claim that Delaware’s two year statute of limitations for complaint from Hunter has expired: Judge Robert Robinson may not rule on that question, but that legal challenge may have confirmed that JPMI did not own the data he shared with the FBI after the FBI told his father he might not own it. The implications of that are fairly staggering, though I’ll wait before I lay them out explicitly.

And that’s before Smirnov — a 14-year source for the FBI, whose charged report was championed by Attorney General Bill Barr after Scott Brady claimed to have vetted it — starts challenging his own indictment. That’s before either Smirnov or Abbe Lowell raises Weiss’ conflict in charging it. I don’t think David Weiss has the team to pull that prosecution off without major blowback.

If there were a figure like Weinsheimer outside of this investigation to step in, to call a halt to this shitshow, now would be the time to do it. But as I understand it, Weinsheimer can’t do that, because — apparently aside from the Special Counsel request — he has been part of the process every step of the way.

I get why Merrick Garland would have chosen to do it this way: having a career ADAG oversee Special Counsels rather than the PADAG (in which role Hur supervised Mueller). But in SCO investigation after SCO investigation, it has turned the supervisory role into navel-gazing. And the attempt to ensure a higher level of independence has led to grave ethical problems.