Yesterday, just ten minutes after the last career AUSA, Terry Henry, dropped off the Perkins Coie case (using a letter purportedly authored by Doug Dreier, who dropped off the case Tuesday), DOJ filed a motion to disqualify Beryl Howell from the case.
Fair proceedings free from any suggestion of impartiality are essential to the integrity of our country’s judiciary and the need to curtail ongoing improper encroachments of President Trump’s Executive Power playing out across the country. In this case, reasonable observers may well view this Court as insufficiently impartial to adjudicate the meritless challenges to President Trump’s efforts to implement the agenda that the American people elected him to carry out. In fact, this Court has repeatedly demonstrated partiality against and animus towards the President.
The motion is packed with allegations that don’t even make sense. Beryl Howell sinned by:
Questioning Twitter’s motives for defying a lawful warrant.
Upholding the gag order in the Twitter case for reasons other than what DOJ claims.
Disagreeing that Trump’s pardon of an accused cop assailant corrected “a grave national injustice.”
Finding that Trump had attempted to get Evan Corcoran to break the law for him.
Correcting Chad Mizelle’s false claims about the Steele dossier by saying, “you cannot be saying that there was nobody involved in the 2016 Trump campaign that had any connection with any Russian; you can’t say that.”
Noting that Trump lost a lawsuit against Perkins Coie.
The recusal motion says nothing about the fact that Howell oversaw the grand jury investigation of Michael Sussmann, permitting repeated subpoenas to law firms, including Perkins Coie. Beryl Howell treated Trump no better or worse than she did Sussmann.
Perhaps the craziest excuse given for demanding that Howell recuse, though, regurgitated an Elise Stefanik complaint that at a public appearance in 2023, Beryl Howell quoted Heather Cox Richardson about propaganda, without mentioning Trump at all.
This historian Heather Cox Richardson, whose book I’ve been reading . . . cautions in her book’s opening line . . . “America is at a crossroads teetering on the brink of authoritarianism” and she echoes this thought in her closing line, that we are at a time of testing and how it comes out . . . is in our own hands.
(This video was originally posted by one of Steve Bannon’s propagandists.)
In other words, DOJ’s political appointees, including Todd Blanche, are demanding that Beryl Howell recuse from this case because she warned about precisely the kinds of disinformation that DOJ spews in this court filing.
Blanche’s involvement is not just symbolic. This filing was authored by someone in the Deputy Attorney General’s office — Blanche’s office.
Blanche’s involvement matters for two reasons.
First, this is a ploy that Todd Blanche pulled before, back before taxpayers were on the hook to pay him to serve as defense attorney for Donald Trump. Back in September 2023, he moved to disqualify Tanya Chutkan in Trump’s January 6 case because she had already had to deal with multiple January 6 defendants who compared their own conduct to that of Trump (though the complaint would have stood for any DC judge).
President Donald J. Trump, through undersigned counsel, respectfully moves to recuse and disqualify the Honorable Tanya S. Chutkan pursuant to 28 U.S.C. § 455(a). Fairness and impartiality are the central tenets of our criminal justice system.
Both a defendant and the public are entitled to a full hearing, on all relevant issues, by a Court that has not prejudged the guilt of the defendant, and whose neutrality cannot be reasonably questioned.
Todd Blanche, when he’s trying to defend Trump’s abuse of power, is making a habit of impugning women judges.
The other reason Blanche’s personal involvement matters is that most of the things he complains about are his own gripes carried over from serving as Trump’s defense attorney. Evan Corcoran testified that Trump deceived him about the classified documents his client was hoarding. Twitter ultimately turned over Trump’s account information, which proved that Trump was holding the weapon — the Twitter account — that almost got Mike Pence murdered. The way that Trump’s false claims led thousands to disrupt the peaceful transfer of power remained at the core of the prosecution of Trump even after SCOTUS had their way with the case.
Central to Perkins Coie’s argument is that Trump’s punitive Executive Order targeting the law firm amounts to a mulligan, an attempt to win legal battles he already lost, including the prosecution of Sussmann.
I think the government admitted to you that this was punitive. That makes a big difference, too, because in the separation of powers analysis, one thing you will look at — we submitted to you — that what they have done is just a mulligan from the things that happened in the judicial system.
Sussmann was indicted and acquitted. President Trump, as a private citizen, sued the law firm; and he lost. The punitive portion, courts mete out punishment, not the Presidents; and courts adjudicate, not Presidents.
Now, Blanche has done the same himself, making his own losses as a defense attorney the business of the United States.
It does nothing but prove that he has a conflict, not that Beryl Howell does.
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https://www.emptywheel.net/wp-content/uploads/2023/03/Screen-Shot-2023-03-18-at-10.30.18-AM.png758694emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2025-03-22 12:06:182025-03-22 12:06:18“The Very Importance of Facts Is Dismissed, or Ignored:” Todd Blanche Whines about Women Judges, Again
I want to elaborate on the shenanigans pertaining to purported DOGE Administrator Amy Gleason here. (Thanks to LOLGOP for helping me make a video to help explain it.)
For some time, I’ve been talking about the way that DOGE, because it is so bureaucratically incompetent and because it is led by someone easy to villainize, actually provides regime opponents with an auspicious tool we otherwise wouldn’t have had if Trump had implemented his Project 2025 agenda more slowly via Russ Vought’s expert work.
If done competently, existing Article II authority and SCOTUS’ enthusiasm to expand it may well have provided a way to do everything they’re currently doing with complete legal sanction. But they chose not to do it competently, which has provided some means to at least slow things down and possibly to get SCOTUS to overturn this.
To be sure, the damage Elon Musk is doing on the front end is catastrophic. Elon is destroying lives and competencies with his chainsaw.
But because of DOGE’s incompetence, it creates legal leverage that I’m fairly confident Vought could have managed to avoid.
Agent Elon Musk
It has to do with Elon’s agency.
There have been a number of stories on how Elon came to choose USDS as a vehicle for his project — whatever purpose that project has. NPR did an early story on the background of the US Digital Service. Wired did a story on what that takeover looked like from inside. Wired did a more comprehensive piece this week.
There were several important bureaucratic reasons to use USDS as a vehicle for DOGE. By repurposing an already-existing entity, Trump avoided disclosure requirements under Federal Advisory Committee Act; this served to defeat the already-written lawsuits filed the first week of the Administration. And because USDS was a White House agency, it might have protected DOGE from other kinds of transparency, notably FOIA. And keeping it in the White House hypothetically made DOGE an advisory entity firmly under Article II power, not subject to other legal challenges.
It was a brilliant bureaucratic theory.
And then Elon and Trump and Karoline Leavitt kept opening their big mouths, making boastful claims about Elon’s own agency — double entendre intended — in the destruction that undermined the entire bureaucratic logic. For example, Elon’s claim to have put USAID through the wood chipper makes virtually every court filing.
By claiming credit for destroying free-standing agencies, Elon has undermined the entire premise of using USDS as a vehicle, because it has boasted that Elon has more power than USDS is supposed to have. As a result, Trump had to attempt to retcon the reporting structure of DOGE, in an attempt to sustain the bureaucratic benefits of using USDS as a vehicle.
In recent weeks, the intersection of several different lawsuits and several different legal theories opened a significant chink in the entire bureaucratic game.
It has to do with Elon’s agency. If DOGE is an agency and Elon heads it, then many of the bureaucratic benefits arising from using USDS as a vehicle collapse. Plaintiffs will get visibility into DOGE. And they’re likely to make Appointments Clause complaints that SCOTUS is generally amenable to.
OMB accepts a FOIA
One early mistake DOGE made was to accept a FOIA from CREW and grant it expedited processing, only to try to renege on that stance weeks later.
[O]n January 24, 2025, CREW submitted an expedited FOIA request to OMB (“Second OMB Request”) “seeking records related to changes to the operations of the U.S. Digital Service, organizational charts, financial disclosures, and other information relevant to the newly-formed USDS.” Id. ¶ 90; Mot. for PI, Ex. C (copy of Second OMB Request). The second request similarly focused on the time period beginning November 6, 2024, but also requested some records dating back until January 2014. Id. On the same day, CREW contacted the OMB FOIA Requester Service Center to ask how to submit a FOIA request directly to USDS and was directed to submit that request through OMB, too. Mot. for PI, Ex. D at 1 n.1. Accordingly, CREW also submitted an expedited FOIA request directly to USDS (“USDS Request”), which, along with the just-listed information, sought “[a]ll communications between USDS personnel and personnel of any federal agency outside of the Executive Office of the President.” Compl. ¶ 90; Mot. for PI, Ex. D. On January 24, OMB acknowledged receipt of both requests. Id. ¶ 92.
[snip]
Although OMB initially agreed to process the USDS request and granted it expedited treatment, it has since done an about face. After CREW sued, the government suggested that OMB had inadvertently accepted the USDS request. See Opp’n at 8–9 n.2. It further indicated that USDS had been reorganized as a “free-standing component of EOP that reports to the White House Chief of Staff.” Id. “As a result,” the government posits, “USDS is not subject to FOIA.” Id. The government confirmed at oral argument on CREW’s motion that neither OMB nor USDS itself intend to process the USDS request on that ground. Rough Tr. 3:23–4:4.
Normally, the White House, but not OMB, is immune from FOIA. OMB is not immune because it is a separate agency. Because OMB accepted this FOIA it provided CREW a way, within the FOIA context, to argue that DOGE was an agency.
That fuckup is what led Judge Christopher Cooper to grant a limited expedited FOIA response to CREW on March 10.
The narrowed USDS request seeks, in each case from January 20, 2025, to the present: “all memoranda, directives, or policies regarding changes to the operations of USDS”; organizational charts for USDS; ethics pledges, waivers and financial disclosures of USDS personnel; “all communications with the office of the Administrator of the USDS regarding actual or potential changes to USDS operations”; and “all communications between USDS personnel and personnel of any federal agency outside of the Executive Office of the President regarding that agency’s staffing levels (including any effort to reduce staffing), treatment of probationary employees, contract and grant administration, access to agency information technology systems, or the authority of USDS in relation to that agency.”
In granting that limited response, Cooper noted that DOGE never disputed claims that Elon was exercising significant authority.
The Court recognizes that much, though by no means all, of the evidence supporting its preliminary conclusion that USDS is wielding substantial independent authority derives from media reports. Yet, the Court finds it meaningful that in its briefing and at oral argument, USDS has not contested any of the factual allegations suggesting its substantial independent authority. To be sure, USDS claims it declined to make this argument because CREW’s “motion fails for multiple independent reasons.”
That led DOGE to ask for reconsideration of the FOIA order, which CREW calls “a do-over,” attempting to make the arguments about agency that — Cooper noted explicitly — it had declined to make in its first response. Along with that motion, DOGE submitted a declaration from Amy Gleason on March 14 making claims about DOGE’s structure that directly conflict with claims, including sworn claims made by Gleason, made about DOGE elsewhere.
1. My name is Amy Gleason. The following is based on my personal knowledge or information provided to me in the course of performing my duties at the United States DOGE Service (USDS).
2. I currently serve as the Acting Administrator of USDS. I joined USDS on December 30, 2024.
3. I am a full-time, government employee at USDS.
4. In my role at USDS, I oversee all of USDS’s employees and detailees to USDS from other agencies. 5. I report to the White House Chief of Staff, Susie Wiles.
6. Elon Musk does not work at USDS. I do not report to him, and he does not report to me. To my knowledge, he is a Senior Advisor to the White House.
Now, the government strongly implies that it wants Judge Cooper to rule quickly on its motion for summary judgment so it can appeal right away. Maybe that will all happen.
But it doesn’t put Gleason’s materially conflict declarations back in the box.
Elon’s conflicts become an issue
Meanwhile, as soon as DOGE came after the Department of Labor, a bunch of labor unions sued under what would normally be a weak privacy challenge, but to which both their initial and amended filings included the concern that DOGE generally and Elon specifically could access data of interest to Elon’s business or his companies, including data about labor complaints targeting his businesses.
9. DOGE will also have access to Department of Labor records concerning investigations of Mr. Musk’s businesses, as well as records containing the sensitive trade secrets of his business competitors, which are held by the Department of Labor and Consumer Financial Protection Bureau. No other business owner on the planet has access to this kind of information on his competitors, and for good reason.
[snip]
30. Defendant U.S. DOGE Service (“USDS”) is a federal entity situated within the Executive Office of the President in Washington, D.C. Upon information and belief, its work is directed by Elon Musk, who is reportedly serving in the Trump-Vance Administration as a Special Government Employee (“SGE”). Mr. Musk is the wealthiest person in the world, with an estimated net worth of over $400 billion. Concurrent with his tenure in government, Mr. Musk has numerous large business concerns, many of which have substantial ties to the federal government and U.S. politics. They include SpaceX, a space technology company and extensive federal government contractor; Tesla Motors, an electric vehicle company; Neuralink, a neurotechnology startup seeking to embed computer hardware into the human brain; the Boring Company, a tunnel construction company; and X, formerly known as Twitter, a large social media platform.
[snip]
75. The Occupational Safety and Health Administration (“OSHA”) within the Department is responsible for enforcing safety standards at American companies. OSHA has investigated Mr. Musk’s space technology company, SpaceX, over multiple safety incidents, and has fined SpaceX in connection with one worker’s death and seven other serious safety incidents.33
76. OSHA has also investigated and issued fines to Tesla for unsafe working conditions in its factories. 34
77. OSHA also has open investigations into the Boring Company, and has issued it multiple fines for serious citations, according to OSHA’s website.35
78. On information and belief, the Department of Labor also currently has open investigations into one or more competitors of Mr. Musk’s companies.
79. Mr. Musk would ordinarily be unable to access non-public information regarding those investigations. See 18 U.S.C. § 1832(a) (Trade Secrets Act); 5 U.S.C. § 552(b)(4) (FOIA exemption for trade secrets); 5 U.S.C. § 552(b)(7) (FOIA exemption for records or information compiled for law enforcement purposes).
80. In light of the blanket instruction to provide DOGE employees with “anything they want,” Mr. Musk or his associates will be able to access that information simply by asking DOL employees for it.
[snip]
156. There is no public indication that Mr. Musk or DOGE personnel on leave from Mr. Musk’s corporate interests will be recused from access to any of this data, which includes “hundreds of complaints about [Mr. Musk’s] electric car company Tesla.”91
The judge in this case, John Bates, twice rejected their bid for a Temporary Restraining Order on standing grounds. But in plaintiffs’ second bid for one, they argued that DOGE members were prohibited from accessing agency records at Department of Labor, HHS, and CFPB under terms permitted by the Privacy Act because they didn’t work for an agency.
With respect to inter-agency personnel agreements, Congress provided legal authority for exactly that purpose through the Economy Act of 1932, which regulates whether and when federal employees can be temporarily detailed to new agencies. The Economy Act provides that, under certain circumstances, “[t]he head of an agency or major organizational unit within an agency may place an order with a major organizational unit within the same agency or another agency for goods or services[.]” 31 U.S.C. § 1535(a) (emphasis added). For purposes of Title 15 of the U.S. Code, “‘agency’ means a department, agency, or instrumentality of the United States Government.” Id. § 101. Because DOGE is not an “agency or a major organizational unit within an agency” for purposes of the Economy Act, it cannot lawfully enter into agreements to detail its personnel to lawfully established federal agencies.
Bates still denied their TRO. But in his second order rejecting their privacy claims, he relied on defendants’ representations about whether they were an agency or not (they argued they were an instrumentality). They only successfully defeated a TRO request because, Bates opined, they were an agency.
Under those definitions, USDS—which is located with the Executive Office of the President, see First DOGE E.O. § 3(a)—appears to be an agency. In each context mentioned above, an entity within the Executive Office of the President is an agency if it “wield[s] substantial authority independently of the President.” Elec. Priv. Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, 266 F. Supp. 3d 297, 315 (D.D.C. 2017). If instead it serves solely “to advise and assist the President,” it is not an agency. Alexander v. FBI, 456 F. App’x 1, 1–2 (D.C. Cir. 2011) (quoting Kissinger v. Reporters Comm., 445 U.S. 136, 156 (1980)). As plaintiffs themselves insist, USDS appears to do much more than advise and assist the President. USDS’s mission, per the Executive Order, is to “implement” the President’s modernization agenda, not simply to help him form it. See First DOGE E.O. § 1. While the record isn’t crystal clear as to these allegations, it is apparent that USDS is coordinating teams across multiple agencies with the goal of reworking and reconfiguring agency data, technology, and spending. See supra n.3 (describing the duties of the DOGE team members at DOL, HHS, and CFPB; Exec. Order No. 14,210, 90 Fed. Reg. 9669 (Feb. 11, 2025) § 3 (“Second DOGE E.O.”) (ordering that agency heads collaborate with DOGE teams on new appointment hires and prohibiting agencies from “fill[ing] any vacancies for career appointments that the DOGE Team Lead assesses should not be filled”). That is not the stuff of mere advice and assistance. See, e.g., Sweetland v. Walters, 60 F.3d 852, 854 (D.C. Cir. 1995).
Curiously, defendants do not make this argument. They shy away from other, similar statutory definitions of agencies, notwithstanding USDS’s strong claim to agency status under them. This appears to come from a desire to escape the obligations that accompany agencyhood— subjection to FOIA, the Privacy Act, the APA, and the like—while reaping only its benefits. Indeed, at the renewed TRO hearing, defendants’ counsel insisted that USDS is not an agency under any of those three statutes (not to mention two Executive Orders scaffolding USDS, see First DOGE E.O. § 2(a); Second DOGE E.O. § 2(a)), but is under the Economy Act. Defendants insist that the inclusion of “instrumentalities” in the Economy Act definition renders “agency” there broader than its sibling definitions of “agency.” And so USDS becomes, on defendants’ view, a Goldilocks entity: not an agency when it is burdensome but an agency when it is convenient.
Plaintiffs leaned into this language when they requested discovery.
Plaintiffs argued that DOGE is not an “agency” for the purposes of the Economy Act, that it exists purely to advise the President and does not possess and organic statutory authority that would permit it to enter into Economy Act agreements with Defendant agencies. ECF No. 29-1 at 34-37. Defendants argue that DOGE is not an “agency,” but does constitute an “instrumentality” that may permissibly enter into Economy Act agreements. See Transcript of TRO Motion Hearing, ECF No. 41 at 32. This Court concluded that, based on the information before the Court about DOGE’s functional activities, DOGE most resembles an agency, but expressly noted the limitations of the current record and briefing to date.
[snip]
The facts about how DOGE is structured are arguably become less clear with time. On February 17, 2025, the White House stated for the first time that Elon Musk is not an employee of DOGE nor is he the U.S. DOGE Service Administrator.
[snip]
Discovery about the functional structure of DOGE–including who has decision-making authority over it–is directly relevant to being able to evaluate its status as an agency or instrumentality to whom Plaintiffs’ sensitive data may be disclosed without causing injury.
That’s part of what led Judge Bates to grant discovery. Another was that defendants’ own claims conflicted with the record.
Plaintiffs seek discovery on these issues in part because defendants already put into the record some facts relevant to the issues. The declarations defendants filed with their oppositions to plaintiffs’ TRO motions—all of which were prepared well after the challenged agency actions—introduced before-unknown information—some of which conflicted—on how USDS is operating at the defendant agencies: from the number of USDS employees working at each defendant agency, to the training and agreements put in place for those employees, to the access those employees are given.
[snip]
It would be strange to permit defendants to submit evidence that addresses critical factual issues and proceed to rule on a preliminary injunction motion without permitting plaintiffs to explore those factual issues through very limited discovery.
And that’s what led DOGE to take a rash step: To make the woman they had just declared to be their DOGE Administrator an HHS employee, effective March 4, even while they disclaiming being an agency in the CREW suit, and asking Amy Gleason to submit a sworn declaration claiming to be a full time DOGE employee ten days later.
Amy Gleason is on the hook for sworn claims to be an employee of HHS and, at the same time, to be DOGE’s full-time Administrator.
Elon skipped his appointment with Congress
All that this shell game over agency status has gotten plaintiffs so far — if the government can’t reverse these decisions on appeal — is some visibility about what DOGE really is, including visibility about what it’s doing with union members’ data.
But it’s all boxing the government in on what does matter: The at-least three different challenges to DOGE that argue Elon’s appointment violates the Appointments Clause, something that could — and did yesterday, in the Does 1-26 v. Elon lawsuit — require reversing all the actions the government has taken under Elon’s watch.
It’s that lawsuit, Does 1-26 v Musk, in which Judge Theodore Chuang made big news yesterday by enjoining Elon and requiring the government to start reversing the effects of what DOGE did. But the lawsuit, and so his order, only apply to Elon and DOGE. Plus, to the extent that Elon can get permission from Marco Rubio or Pete Marocco to do the very same things they’ve already done, they have two weeks under the order to do that.
It’s an important ruling, but the most likely effect it may have, in practice, is to reveal how much DOGE broke when it was dismantling USAID, which may soon become evident to people getting their digital access restored.
In making his ruling, Chuang relied exclusively on the public record, all the instances of Trump hailing Elon for his DOGE work and Elon’s own claims about woodchippers.
In another of these cases, though, one by Democratic Attorneys General (captioned as New Mexico), Judge Tanya Chutkan granted plaintiffs expedited discovery on March 12, meaning barring a successful appeal, the AGs will get more visibility on DOGE by April 2 or thereabouts.
Still, like the Does 1-26 case, the AGs lawsuit only targets Elon (and Trump). It won’t have the ability of rolling back everything DOGE did. It might make DOGE itself illegal barring Congressional action, but it cannot reverse everything.
The third suit, which also names the agencies themselves, might do that.
Update: Judge Bates has denied the government’s motion to reconsider his discovery order and has instead extended it as plaintiffs requested. The order … shows some impatience with DOGE’s changing claims.
Presumption of irregularity
None of that is going to happen quickly.
But what is happening quickly is that the conflicting claims before different judges are making it clear that nothing this Administration says can be trusted.
This is the most advanced Appointments Clause challenge, but may be consolidated with New Mexico. It not only sues Musk, but also a long list of agencies.
Yesterday, Judge Tanya Chutkan had a Presidents Day hearing on a lawsuit challenging DOGE’s actions. While she reportedly seemed inclined not to grant an emergency restraining order, she did order the government to provide her with two pieces of information: how many people had and were going to be fired, and what Elon Musk’s status is.
In a response and declaration, the government blew off the first question, but on the second, denied that Musk has the power of DOGE. He’s just a senior Trump advisor, one solidly within the White House Office, and so firewalled from the work of DOGE, yet still protected from any kind of nasty disclosure requirements.
But as the attached declaration of Joshua Fisher explains, Elon Musk “has no actual or formal authority to make government decisions himself”—including personnel decisions at individual agencies. Decl. ¶ 5. He is an employee of the White House Office (not USDS or the U.S. DOGE Service Temporary Organization); and he only has the ability to advise the President, or communicate the President’s directives, like other senior White House officials. Id. ¶¶ 3, 5. Moreover, Defendants are not aware of any source of legal authority granting USDS or the U.S. DOGE Service Temporary Organization the power to order personnel actions at any of the agencies listed above. Neither of the President’s Executive Orders regarding “DOGE” contemplate—much less furnish—such authority. See “Establishing and Implementing the President’s Department of Government Efficiency,” Exec. Order No. 14,158 (Jan. 20, 205); “Implementing the President’s ‘Department of Government Efficiency’ Workforce Optimization Initiative,” Exec. Order 14,210 (Feb. 11, 2025).
The statement is quite obviously an attempt to retcon the structure of DOGE [sic], one that Ryan Goodman has already found several pieces of evidence to debunk.
But it is a testament that the suit in question — by a bunch of Democratic Attorneys General, led by New Mexico [docket] — might meet significant success without the retconning of Elon’s role.
Partly for more general benefit, let me talk about the various kinds of lawsuits filed so far against Trump’s attacks.
Kinds of plaintiffs:
Imminent, individual personal injury: The cases that have had the most success, so far, are examples of individuals who describe a specific imminent injury. The most obvious such example is a number of Trans women prisoners who’ve argued, successfully so far, that they face a very high likelihood of assault and/or rape if they are moved to male prisons.
Unions or other representatives of federal workers: These lawsuits address the imminent injury of privacy violations or firing and other mistreatment. The most successful (and eye-popping) so far has been the American Foreign Service Association lawsuit challenging the USAID shutdown [docket], in which a Doe employee yesterday provided another horrifying declaration describing another instance of a pregnant woman being deprived of promised medevac, and another from a woman in South Africa running up debt taxpayers will have to pay and about to lose access to electricity on the compound. But there are limits to the recourse that unions can seek on both these theories. For example, while Trump appointed judge Carl Nichols imposed a temporary restraining order on actions targeted at employees oversees, he has not done so for the USAID personnel stuck without the ability to fix anything in DC, because being put on paid leave is not the same kind of injury as being stuck overseas with no access to security warnings.
States (all with Democratic Attorneys General): The states are arguing a variety of things, both contractual breaches and injuries to their citizens. Contractual challenges may have little ability to halt ongoing destruction.
Private entities, like corporations or associations: These entities are often arguing contractual breaches, or privacy damages. The latter are likely to have more success than the former because of the way the Privacy Act works.
Kinds of challenges:
Many of these challenges claim a violation of the Administrative Procedures Act, basically arguing that the government changed the rules without going through the process they are required to use to change the rules.
Many lawsuits also claim violations of the Privacy Act, which requires that the government follow certain rules if they’re accessing your data in new ways. Thus far, the government has argued that employees have more limited protections than private citizens.
Underlying many of these suits are claims about the Impoundment Act and Separation of Powers because the government is not spending money the way Congress said it had to, but argued through an APA challenge. These challenges are particularly important because a key project of Project 2025 is to effectively strip Congress of the power of the purse.
Some lawsuits have tried to get at cybersecurity violations or even hacking (Computer Fraud and Abuse Act) claims, but thus far with little success. In any case, those would pivot on how DOGE [sic] got access to various computer systems, and in most cases, a senior Agency official ultimately relented to give them access.
This lawsuit, and another similar one brought by 26 anonymous USAID employees, argue that Elon Musk’s role in all this violates the Appointments Clause. This basically argues that Elon is acting as a superior officer, which requires Senate confirmation.
The injury suffered by each set of plaintiffs and legal theory largely limits the ability of judges to weigh in. So, for example, if a suit is arguing only Privacy Act violations, a judge can do no more than limit the dissemination outside of authorized channels of the data of the plaintiffs, something that has been ineffective once agencies started giving DOGE formal authorization to access computer servers. If a suit worries about firings, but the government instead puts tons of people on paid leave (as happened with USAID), then the plaintiffs are not yet suffering an irrevocable injury.
Here’s how the Appointments Clause theory, arguing that Elon is exercising powers that need to be created by Congress and confirmed by them, looks in the complaint.
64. Although he occupies a role President Trump—not Congress—created and even though the Senate has never voted to confirm him, Mr. Mr. Musk has and continues to assert the powers of an “Officer[] of the United States” under the Appointments Clause. Indeed, in many cases, he has exceeded the lawful authority of even a principal officer, or of the President himself.
65. As explained below, Mr. Musk: (1) has unprecedented and seemingly limitless access across the federal government and reports solely to President Trump, (2) has asserted significant and sweeping authority across a broad swath of federal agencies, and (3) has engaged in a constellation of powers and activities that have been historically associated with an officer of the United States, including powers over spending and disbursements, contracts, government property, regulations, and agency viability.
66. In sum, Mr. Musk purports to exercise and in fact asserts the significant authority of a principal officer on behalf of the United States. Yet, he does not occupy an office created by Congress and has not been nominated by the President or confirmed by the Senate. As a result, all of Mr. Musk’s actions are ultra vires and contrary to law.
You can see why the White House has decided that Elon is boxed away inside the White House with no direct control over the dismantling of government bureaucracy. The retconning of his role is all the more obvious when you understand that the right wing judges on SCOTUS feel very strongly about the Appointments Clause. And Trump is on the record relying on it, most spectacularly in convincing Aileen Cannon that Jack Smith had to be confirmed by the Senate before he could indict Trump.
In practice, Trump is saying Elon can dismantle entire agencies without Senate confirmation, but Jack Smith couldn’t prosecute him as a private citizen without it.
Or he was. Now he’s arguing that all this is happening without Elon’s personal direction.
There is plenty in the complaint already that debunks this, not least the narrative of how Elon started disappearing USAID even before, by his own description, Trump approved.
93. With a budget of over $40 billion, USAID accounts for more than half of all U.S. foreign assistance. USAID has missions in over 100 countries. As of January 2025, USAID had a workforce of over 10,000, with approximately two-thirds serving overseas.
94. On Saturday, February 1, 2025, a group of about eight DOGE personnel entered the USAID building and demanded access to every door and floor, despite only a few of them having the requisite security clearance.34 The areas to which they sought access included a sensitive compartmented information facility—commonly known as a SCIF—an ultra-secure room where officials and government contractors take extraordinary precautions to review highly classified information. DOGE personnel, aided by phone calls from Mr. Musk, had pressured USAID officials for days to access the secure facility and its contents.35
95. When USAID personnel attempted to block access to some areas, DOGE personnel, including Mr. Musk, threatened to call federal marshals. Under threat, the agency personnel acquiesced, and DOGE personnel were eventually given access to the secure spaces.
96. Later that day, top officials from USAID and the bulk of the staff in USAID’s Bureau for Legislative and Public Affairs were put on leave. Some of them were not notified but had their access to agency terminals suspended. USAID’s security official was also put on leave.36 97. Within hours, USAID’s website vanished. It remains inoperative.37
98. On Sunday, February 2, 2025, Mr. Musk tweeted, “USAID is a criminal organization. Time for it to die.”
38 Later, he tweeted, “We spent the weekend feeding USAID into the woodchipper.”39
99. Mr. Musk provided no support for his claim that USAID is a criminal organization. 100. On Monday, February 3, 2025, Mr. Musk stated that he was in the process of closing the agency, with President Trump’s blessing. Mr. Musk stated: “I went over it with him [President Trump] in detail, and he agreed that we should shut it down. And I actually checked with him a few times [and] said ‘are you sure?’ The answer was yes. And so we’re shutting it down.”40
Now, before DOJ gave this answer and blew off Judge Chutkan’s order to provide details of the ongoing firing spree, she seemed inclined not to grant a restraining order to stop all this.
It’s unclear whether this defiance will change that. Or, at the very least, whether it will lead to more questions about whether White House wrote any of this down.
What is clear is that the White House recognizes a real risk if Elon is held accountable for all the things Elon has done.
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I want to say something about the structure of Jack Smith’s report. For his description of Trump’s alleged crimes, he includes a fairly high level narrative in the text, with detailed footnotes.
A great number of the footnotes — around 178 of them — cite to ECF 252.
ECF 252 is the immunity brief Jack Smith fought hard, over Trump’s objections, to submit in October. The footnotes often then cite the Special Counsel’s Bates stamp identifying that piece of evidence and include a short description of the source.
Take this footnote:
It sources this assertion in the report itself:
Under this plan, they would organize the people who would have served as Mr. Trump’s electors, had he won the popular vote, in seven states that Mr. Trump had lost-Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin-and cause them to sign and send to Washington false certifications claiming to be the legitimate electors. 39
So in early December, the defendant and his co-conspirators developed a new plan regarding the targeted states that the defendant had lost (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin): to organize the people who would have served as the defendant’s electors had he won the popular vote, and cause them to sign and send to Pence, as President of the Senate, certifications in which they falsely represented themselves as legitimate electors who had cast electoral votes for the defendant. Ultimately, the defendant and his co-conspirators would use these fraudulent electoral votes—mere pieces of paper without the lawful imprimatur of a state executive—to falsely claim that in his ministerial role presiding over the January 6 certification, Pence had the authority to choose the fraudulent slates over the legitimate ones, or to send the purportedly “dueling” slates to the state legislatures for consideration anew.
[snip]
Notwithstanding obstacles, the defendant and his co-conspirators successfully organized his elector nominees and substitutes to gather on December 14 in the targeted states, cast fraudulent electoral votes on his behalf, and send those fraudulent votes to Washington, D.C., in order to falsely claim at the congressional certification that certain states had sent competing slates of electors.301 When possible, the defendant and co-conspirators tried to have the fake electoral votes appear to be in compliance with state law governing how legitimate electors vote.302
And this footnote in the immunity brief.
As advertised, the footnote links to the Appendix and (in this case) the actual fake elector certificates.
In other words, for the narrative sourced to ECF 252 (one part of the narrative not sourced to the immunity brief pertains to the riot itself), we’ve already gotten this material. We got it in October, before the election.
It got only passing coverage.
We got much of this report, in more detailed form, in October. Many of the people who claim releasing this report would have made a difference in the election didn’t read the immunity brief in October, much less make a big deal about it.
The structure is significant for a few more reasons. First, the footnotes in this report sometimes provide more description about what appears in the appendix. Second, for those (including state Attorneys General) who want the evidence from Smith’s prosecution, the place to go is Tanya Chutkan, because it’s all there in her docket, sealed.
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Jack Smith just requested and got a consent motion to file a status report “or otherwise inform” Judge Tanya Chutkan of what they’re going to do with the January 6 case.
As a result of the election held on November 5, 2024, the defendant is expected to be certified as President-elect on January 6, 2025, and inaugurated on January 20, 2025. The Government respectfully requests that the Court vacate the remaining deadlines in the pretrial schedule to afford the Government time to assess this unprecedented circumstance and determine the appropriate course going forward consistent with Department of Justice policy. By December 2, 2024, the Government will file a status report or otherwise inform the Court of the result of its deliberations. The Government has consulted with defense counsel, who do not object to this request.
If that “otherwise inform” is a report, it would be done in plenty of time for Dick Durbin to hold a hearing.
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There is a transcript in the mostly sealed Appendix I to Jack Smith’s immunity brief that must be Chesebro’s. Several passages describing events in which Chesebro was involved cite a transcript, spanning from roughly GA 97 to GA 103, that appears between Lee Chatfield and probable Pat Cipollone transcripts (GA 55-56 is someone whose name appears alphabetically between Bowers and Cannon; this may be Trump campaign staffer Michael Brown).
On December 16, [Chesebro] traveled to Washington with a group of private attorneys who had done work for the defendant’s Campaign in Wisconsin for a photo opportunity with the defendant in the Oval Office.315
[snip]
Later that morning, [Chesebro] worked with another attorney for the defendant, who contacted a U.S. Senator to ask him to obtain the fraudulent Wisconsin and Michigan documents from the U.S. Representative’s office and hand-deliver them to the Vice President.408
315 Documentary evidence, Presidential Daily Diary, GA 100-101
That would mean that this section, which suggests the co-conspirators deliberately lied to fake electors, is sourced partly to Chesebro too (GA 517-518 is part of an at least 6-page section describing the fake elector involvement of someone whose name appears alphabetically between Raffensperger and Scavino, which hypothetically could be Mike Roman, but nothing marks it as necessarily him).
In practice, the fraudulent elector plan played out somewhat differently in each targeted state. In general, the co-conspirators deceived the defendant’s elector nominees in the same way that the defendant and [Eastman] deceived [Ronna McDaniel] by falsely claiming that their electoral votes would be used only if ongoing litigation were resolved in the defendant’s favor.282
282 Documentary evidence, GA 97-98, GA 517-518.
It’s not terribly surprising that Jack Smith got an interview with Chesebro. After all, Chesebro made a great show of cooperating in various state investigations — at a minimum, Georgia, Nevada, Wisconsin, and Michigan, as CNN laid out last December. But as CNN also reported, the veracity of his testimony came into question by February, when CNN caught Chesebro covering up a Twitter account he had.
So Jack Smith appears to have gotten an interview with Chesebro, but Chesebro may not be terribly reliable.
Perhaps for that reason, there are a great many things involving Chesebro that are not sourced to that transcript. Chesebro’s plotting about the fake electors plot, for example, is always sourced to the documents themselves.
More interestingly, this passage — describing that Chesebro followed Trump’s public instructions to go to DC, but also describing that he collected copies of the fake Michigan and Wisconsin elector certificates and handed them off to Congressman Mike Kelly — is sourced entirely to documentary evidence.
Meanwhile, [Chesebro] who had traveled to Washington as directed by the defendant’s public messages, obtained duplicate originals of the fraudulent certificates signed by the defendant’s fraudulent electors in Michigan and Wisconsin, which they believed had not been delivered by mail to the President of the Senate or Archivist.389 [Chesebro] received these duplicates from Campaign staff and surrogates, who flew them to Washington at private expense.390 He then hand-delivered them to staffers for a U.S. Representative at the Capitol as part of a plan to deliver them to Pence for use in the certification proceeding.391
Similarly, the description of Chesebro’s participation in the mob is sourced exclusively to documentary evidence.
Among these was [Chesebro] who had attended the defendant’s speech from the Washington Monument, marched with the crowd to the Capitol, and breached the restricted area surrounding the building.449
There’s a problem with Chesebro’s testimony on this point, of course: If he ferried fake elector certificates, then he wasn’t responding to Trump’s public tweeting about January 6. He was responding to the instructions of other plotters.
Which makes the way Smith sourced this passage, describing a December 16 meeting with Trump that Reince Priebus also attended, more interesting.
On December 16, [Chesebro] traveled to Washington with a group of private attorneys who had done work for the defendant’s Campaign in Wisconsin for a photo opportunity with the defendant in the Oval Office.315 During the encounter, the defendant complained about Wisconsin Supreme Court Justice [Brian Hagedorn] who two days earlier had cast the deciding vote in rejecting the defendant’s election challenge in the state.316 As the group was leaving, the defendant spoke directly—and privately—to [Chesebro]. 317 As late as early January, the conspirators attempted to keep the full nature of the fraudulent elector plan secret. On January 3, for instance, in a private text message exchange, [Boris Epshteyn] wrote to [Chesebro] “Careful with your texts on text groups. No reason to text things about electors to anyone but [Eastman] and me.” [Chesebro] responded, “K,” and followed up, “I’m probably a bit paranoid haha.” [Epshteyn] wrote, “A valuable trait!”318
315 Documentary evidence plus Chesebro
316 Probably Reince Priebus
317 Probably Reince Priebus
318 Documentary evidence
That is, Smith relies on Chesebro for the claim that this meeting was a photo op. But he doesn’t include Chesebro’s claims about what he said privately to Trump; he relies solely on what is likely Reince Priebus witnessing, but not participating in, that conversation.
Rather than describing what Chesebro claimed he and Trump said to each other, Smith relies on what Chesebro told another lawyer (likely Jim Troupis), afterwards. As soon as Chesebro saw Trump’s tweet announcing the January 6 rally, he texted someone else and boasted that “we” had a “unique understanding” of Trump’s December 19 Tweet calling people to DC.
The defendant first publicly turned his sights toward January 6 in the early morning hours of December 19. At 1:42 a.m., the defendant posted on Twitter a copy of a report falsely alleging fraud and wrote, ““. . . Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!”319 When [Chesebro] learned about the Tweet, he sent a link about it to another of the Wisconsin attorneys who had met with the defendant in the Oval Office on December 16 and wrote, “Wow. Based on 3 days ago, I think we have unique understanding of this.”320
Chesebro has testified about the December 16 meeting. TPM got his testimony to Michigan prosecutors. He described to them that he told Trump that the real deadline for certification was January 6.
Chesebro traveled to Washington to meet with Trump on Dec. 16 alongside a coterie of other Trump campaign attorneys.
Three years later, in the interview with Michigan prosecutors, Chesebro recalled the meeting with Trump: “The marching orders were, don’t say anything that would make [Trump] feel more positive than he did at the beginning of the meeting.”
He did not follow that advice. Chesebro told prosecutors that he began to speak with Trump after listening to the President talk on speakerphone with Newt Gingrich about something to do with Georgia voting machines. Then, the conversation turned to Trump’s chances in Arizona.
Chesebro did exactly what he had been told not to do: give Trump a sense of hope. He recalled telling Trump that the “real deadline” was Jan. 6. He was later admonished by former White House chief of staff Reince Preibus because, as Chesebro put it later to prosecutors, “the vibe that I had given him was some ground for optimism.”
Chesebro himself compared the meeting to a widely reported and infamous late-night encounter, two days later on Dec. 18, between Trump, Sidney Powell, former Overstock CEO Patrick Byrne, and the White House counsel’s office, saying that it was “sort of unauthorized.”
If Chesebro reliably told Jack Smith the same thing, it might strengthen the obstruction case. As it is, Jack Smith argues that the riot happened, Trump did nothing to stop it, and then he opportunistically targeted Mike Pence as his mob was hunting him down. He stops well short of saying he summoned the mob to overrun Congress.
Chesebro’s apparent unreliability may be preventing Jack Smith from taking the next step, showing that Trump heard from Chesebro on December 16 that there was still one more step to certification on January 6, which led him — less than three days later — to summon his mob. But if Chesebro’s testimony were more reliable, then he would not simultaneously be explaining that he ferried a second set of fake Michigan and Wisconsin certificates to DC but also simply showed up on January 6 in response to Trump’s Tweets. And it might change the import of the way he shadowed Alex Jones.
Still, as it is, Chesebro is central to the continued viability of 18 USC 1512(c)(2) and (k) charges. Under Fischer, there must be an evidentiary component to the obstruction charge. And in Chesebro, you have the sole member of the conspiracy who joined the mob on January 6 having earlier ferried fake elector certificates to members of Congress in hopes that Mike Pence would use the certificates to throw out Joe Biden’s votes.
If this ever goes to trial, Chesebro’s role — and possible testimony — may be key. But thus far, at least, it doesn’t appear that his testimony is reliable enough to build the case on.
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All of us who have followed this have concluded there’s not any new news (though the presentation of it reveals certain things about Smith’s investigation).
So why did Trump’s lawyers wail and wail about releasing these materials before the election?
Just days ago, after all, Trump’s lawyers argued that releasing these materials would alter the election.
It may be this:
As the appendix documents, on March 11, 2024, Trump posted to Truth Social that, along with closing the border and DRILL, BABY, DRILL, his first priority, Day One, was to free the seditionists and cop assailants who had fought for him on January 6.
Prosecutors cited that post to support their argument that Trump ratified the violence that day.
As the Government identified in its Rule 404(b) notice, ECF No. 174-1 at 8-9, the Government will introduce some of the defendant’s numerous statements that post-date his time as President in which he has blamed Pence and approved of the actions of his supporters who breached the Capitol and obstructed the certification proceeding,722 thus providing evidence of his intent on January 6.
The defendant’s endorsement of the violent actions of his supporters on January 6, and his sentiment that they were justified in threatening Pence—all made while the defendant was a private citizen after the end of his term in office—are probative of his intent during the charged conspiracies.
722 See, e.g., GA 1970 at 17:37 (Video of Trump Interview 07/10/2021); GA 1926 at 1:15:30 (Video of Conroe Rally 01/29/2022); GA 1971 at 15:51, 16:42 (Video of Trump Interview 02/01/2022): GA 1962 at 48:29 (Video of Trump at Faith and Freedom Coalition 06/17/2022); GA 1966 at 09:30 (Video of Trump Interview 09/01/2022); GA 1973 at 43:07 (Video of Waco Rally 03/25/2023); GA 1694 (Transcript of CNN Town Hall 05/10/2023); GA 1964 (Video of Trump Campaign Statement 2024); GA 1967 at 45:18 (Video of Trump Interview 08/23/2023); GA 1965 at 56:10, 57:11 (Video of Trump Interview on Meet the Press 09/17/2023); GA 1935 at 35:50, 01:16:16 (Video of Greensboro Rally 03/02/2024); GA 967 (Donald J. Trump Truth Social Post 03/11/2024); Isaac Arnsdorf and Maeve Reston, 7rump claims violence he inspired on Jan. 6 was Pence’s fault, WASH. PostT, (Mar. 13, 2023, 8:09 p-m.), https://www.washingtonpost.com/politics/2023/03/13/trump-pence-iowa/. [my emphasis]
The GOP candidate for President has a criminal docket. And in that criminal docket, today, the government included a post promising to free seditionists and cop-assailants with the same urgency with which Donald Trump promises to close the border. “My first acts,” the GOP standard-bearer stated, would include freeing the people who assaulted the Capitol on January 6.
This was the proposal back in March, one of the first things Trump did after Nikki Haley conceded. And since that time, the entire GOP has fallen into line behind that plan.
The Republican Party’s candidate for President is running on a platform of freeing cop assailants and seditionists.
There’s nothing new in this appendix. But that post does clarify things considerably.
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There’s virtually nothing new here. Trump’s temper tantrum was little more than a public wail that if people saw already-public documents about his plotting to run fake electors, it would swing the election.
That said, there are a few things we can confirm from the structure of all this, which I’ll write up over the weekend.
Back in February 2022, 32 months ago, think I was the only one who made much of Judge Amit Mehta’s ruling that Trump might plausibly be on the hook for abetting the assaults of cops at the Capitol on January 6.
Halberstam v. Welch remains the high-water mark of the D.C. Circuit’s explanation of aiding-and-abetting liability. The court there articulated two particular principles pertinent to this case. It observed that “the fact of encouragement was enough to create joint liability” under an aiding-and-abetting theory, but “[m]ere presence . . . would not be sufficient.” 705 F.2d at 481. It also said that “[s]uggestive words may also be enough to create joint liability when they plant the seeds of action and are spoken by a person in an apparent position of authority.” Id. at 481–82. A “position of authority” gives a “suggestion extra weight.” Id. at 482.
Applying those principles here, Plaintiffs have plausibly pleaded a common law claim of assault based on an aiding-and-abetting theory of liability. A focus just on the January 6 Rally Speech—without discounting Plaintiffs’ other allegations—gets Plaintiffs there at this stage. President Trump’s January 6 Speech is alleged to have included “suggestive words” that “plant[ed] the seeds of action” and were “spoken by a person in an apparent position of authority.” He was not “merely present.” Additionally, Plaintiffs have plausibly established that had the President not urged rally-goers to march to the Capitol, an assault on the Capitol building would not have occurred, at least not on the scale that it did. That is enough to make out a theory of aiding-and-abetting liability at the pleadings stage.
I noted at the time that Judge Mehta — whose ruling on Trump’s susceptibility to lawsuit for actions taken as a candidate would largely be adopted in the DC Circuit’s opinion on the topic — was presiding over a number of the key assault cases where the since-convicted defendants described being called to DC or ordered to march to the Capitol by Trump before they started beating the shit out of some cops.
He also presided over the Oath Keeper cases.
That’s interesting background to Jack Smith’s response to Trump’s supplement to his motion to dismiss his indictment.
As I expected, Smith noted that Trump’s frivolous supplement didn’t even mention the language in the superseding indictment alleging that Trump willfully created false evidence.
Beyond that critical flaw, the defendant’s supplement ignores entirely that the superseding indictment includes allegations that involve the creation of false evidence. As construed by Fischer, Section 1512(c)(1) covers impairment of records, documents, or objects by altering, destroying, mutilating, or concealing them, and Section 1512(c)(2) covers the impairment (or attempted impairment) of records, documents, and objects by other means—such as by “creating false evidence.” 144 S. Ct. at 2185-86 (citing United States v. Reich, 479 F.3d 179 (2d Cir. 2007) (Sotomayor, J.)). In Reich, for example, the defendant was convicted under Section 1512(c)(2) after he forged a court order and sent it to an opposing party intending to cause (and in fact causing) that party to withdraw a mandamus petition then pending before an appellate court. 479 F.3d at 183, 185-87. Just as the defendant in Reich violated Section 1512(c)(2) by “inject[ing] a false order into ongoing litigation to which he was a party,” id. at 186, the superseding indictment alleges that the defendant and his co-conspirators created fraudulent electoral certificates that they intended to introduce into the congressional proceeding on January 6 to certify the results of the 2020 presidential election. See ECF No. 226 at ¶¶ 50-66.
That’s the primary reason I didn’t even treat Trump’s filing with much attention: it ignored how differently situated Trump is than the Fischer defendants.
But I’m most interested in the way Smith rebuts Trump’s argument that he bears no responsibility for the riots at the Capitol. He adopts that same aid and abet theory that Judge Mehta endorsed back in 2022.
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). [my emphasis]
Smith then repeats that language of “willfully caus[ing]” people to storm the Capitol.
As described above, the superseding indictment alleges that the defendant willfully caused others to violate Section 1512(c)(2) when he “repeated false claims of election fraud, gave false hope that the Vice President might change the election outcome, and directed the crowd in front of him to go to the Capitol as a means to obstruct the certification,” ECF No. 226 at ¶ 86, by pressuring the Vice President and legislators to accept the fraudulent certificates for certain states in lieu of those states’ legitimate certificates. Those allegations link the defendant’s actions on January 6 directly to his efforts to corruptly obstruct the certification proceeding and establish the elements of a violation of Section 1512(c)(2), which suffices to resolve the defendant’s motion to dismiss on statutory grounds. [my emphasis]
Note that this reliance on an abetting theory of liability for the riot explains DOJ’s effort to sustain some select 1512(c)(2) charges against crime scene defendants. Smith will want to closely tie Trump to the actions of key crime scene defendants.
But that depends on sustaining at least some of those key cases. But they’ve already taken at least some steps to do that. In at least one case, cooperating Oath Keeper Jon Schaffer, they’ve done an addendum to the statement of facts to sustain the plea under Fischer.
Perhaps relatedly, the nature of Schaffer’s cooperation remains redacted in the government sentencing memo asking for probation for Schaffer.
For over a year, Trump’s team has been trying to disavow his mob, and for almost a year, prosecutors have promised to show how Trump obstructed the vote certification through the actions of specific rioters.
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]
As I’ve said, I think Jack Smith may believe he has the evidence to prove Trump more actively incited violence, but was prevented from indicting that before the election. But for now, Smith is making it explicit that he is adopting the theory of liability that Judge Mehta ruled was at least plausible, years ago.
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Today was the deadline Judge Chutkan set for Trump to object to any of the specific redactions Jack Smith had proposed in the appendix to his motion on immunity.
MINUTE ORDER as to DONALD J. TRUMP: The Clerk of the Court is directed to file on the public docket the Government’s “Motion for Leave to File Unredacted Motion Under Seal, and to File Redacted Motion on Public Docket,” ECF No. 245. It is hereby ORDERED that Defendant shall file under seal any objections to the proposed redactions in the Government’s Motion for Immunity Determinations by 12:00 PM on October 1, 2024, and shall file under seal any objections to the proposed redactions in the Appendix to that Motion by 5:00 PM on October 10, 2024. Signed by Judge Tanya S. Chutkan on 9/27/2024. (zcll)
Rather than object, Trump filed another whining complaint about the election. Predictably, he cited the ill-informed rants of Elie Honig and Jack Goldsmith.
There should be no further disclosures at this time of the so-called “evidence” that the Special Counsel’s Office has unlawfully cherry-picked and mischaracterized—during early voting in the 2024 Presidential election—in connection with an improper Presidential immunity filing that has no basis in criminal procedure or judicial precedent. President Trump maintains his objections, see ECF No. 248, based on overt and inappropriate election interference, violations of longstanding DOJ policy, the Office’s previous safety-related representations in this District and the Southern District of Florida, grand jury secrecy, and the influence on potential witnesses and jurors of prejudicial pretrial publicity—which predictably followed from the filing of the redacted “Motion for Immunity Determinations.”2
2 See, e.g., Ellie Honig, Jack Smith’s October Cheap Shot, N.Y. Magazine (Oct. 3, 2024), https://nymag.com/intelligencer/article/jack-smith-october-surprise-donald-trump.html; see also Jack Goldsmith, Jack Smith Owes Us an Explanation, N.Y. Times (Oct. 9, 2024), https://www.nytimes.com/2024/10/09/opinion/jack-smith-trump-biden.html.
Given that she again got no specific objections to the redactions Jack Smith opposed, Judge Chutkan approved the posting of the appendix (which must be about 1500 pages).
Defendant has now filed an opposition objecting to unsealing any part of the Appendix. ECF No. 259. As in his previous filing, he identifies no specific substantive objections to particular proposed redactions. Instead, Defendant “maintains his objections” to any “further disclosures at this time” for the same reasons he opposed unsealing the Motion, and he requests that “[i]f the Court decides to release additional information relating to the Office’s filing, in the Appendix or otherwise, . . . that the Court stay that determination for a reasonable period of time so that [he] can evaluate litigation options relating to the decision.” Id. at 1–2. For the same reasons set forth in its decision with respect to the Motion, ECF No. 251, the court determines that the Government’s proposed redactions to the Appendix are appropriate, and that Defendant’s blanket objections to further unsealing are without merit. As the court has stated previously, “Defendant’s concern with the political consequences of these proceedings” is not a cognizable legal prejudice. Id. at 4–5.
Accordingly, the Government’s Motion for Leave to File to Unredacted Motion Under Seal, and to File Redacted Motion on Public Docket, ECF No. 246, is GRANTED with respect to the Government’s proposed redacted version of the Appendix to the Government’s Motion for Immunity Determinations.
But she gave Trump a week to — as he described — “evaluate litigation options.”
The court will grant Defendant’s request for a stay so that he can “evaluate litigation options,” ECF No. 259 at 2, and hereby STAYS this decision for seven days.
I await the opinion of smart lawyers. But Judge Chutkan seems to be engaged in a bit of judicial rope-a-dope. The most obvious legal option Trump has is an Emergency Temporary Restraining Order against posting the appendix, but he has just foregone two opportunities to make specific objections. He would face an even bigger problem if he tried to get a writ of mandamus against Judge Chutkan, partly because he did have alternative recourse (specific objections) and partly because she’s literally doing what SCOTUS told her to do.
We shall see. For the moment, though, Trump seems poised to draw more attention to what was largely a restatement of what we already knew.
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