Just when you thought it was over, we’re back in Judge Cannon’s courtroom. Like a bad fungus that won’t go away, she has inserted herself back into the cases against Trump, this time in an attempt to prevent Special Counsel Jack Smith’s final report from ever seeing the light of day. If you’ve sort of heard about this but can’t make sense of what exactly is going on, join the club: Even DOJ and the 11th Circuit are struggling to make sense of a set of judicial rules that Judge Cannon makes up as she goes along. So like a game of Chutes & Ladders from Hell, the case is zipping up and down between Cannon’s courtroom and the 11th circuit, and it’s getting hard to keep up (it might need a diagram).

So to recap: Back in November, following the election, Special Counsel Jack Smith dismissed his case against Trump in both the Mar-a-Lago classified documents case (which was then on appeal, more on that below) and the January 6 case in D.C. As I wrote in my Round Up at the time, this made sense because Smith needed time to write his final report on both cases and submit them to Attorney General Merrick Garland. As I noted, the report(s) will really be the only historical and public accountability of Trump’s crimes in these cases, so it was imperative that Smith be able to ensure that they were submitted before the clock strikes noon on January 20 of this year.

Smith did indeed write a final report, which, like the Mueller Report, consists of two volumes: Volume I is about the investigation and charges leading to the January 6 case, and Volume II is about the classified documents case. Smith has also transmitted both Volumes to Garland. So far so good, right? Well, it was, until Judge Cannon stepped in and issued an injunction prohibiting Garland from releasing any part of the report — Volume I or Volume II — to the public, or even to Congress.

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Let’s rewind just a bit, back to July of this year. Soon after the Supreme Court’s immunity ruling, which I wrote about here, Judge Cannon took the hint provided by Justice Thomas in his concurring opinion and dismissed the classified documents case in its entirety, on the grounds that the appointment of the Special Counsel was unconstitutional from the jump. Now, this ruling was not in line with any other court’s analysis of the topic to that point, but in any case she did it, and the government appealed her ruling to the 11th Circuit. In doing so, Cannon was divested of this entire matter and no longer had jurisdiction over this case.

As noted above, Smith subsequently withdrew his charges against Trump even as the appeal from Cannon’s dismissal was before the 11th Circuit, which had not yet ruled on it. But, the cases against Trump’s codefendants, Walter Nauta and Carlos de Oliveira, remained active, which kept the appeal active in front of the 11th Circuit. Still, Cannon no longer had anything to do with that because, remember, she had dismissed the entire kit and caboodle and it had not been sent back to her. Are you still with me?

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Well this past week, Nauta and de Oliveira filed a motion in the 11th Circuit asking the appeals court to issue an injunction against the release of the Special Counsel’s report — both Volumes I and II. An ambitious request, but at least one that was filed in the proper court where their cases were still being litigated. But here’s the kicker: the co-defendants also filed the same motion in Judge Cannon’s courtroom — you know, the same court where the case no longer existed. And Judge Cannon, never letting something like a mere lack of jurisdiction (which is about the very power of the court to do anything) stand in her way, granted the injunction — meaning she prohibited Garland from releasing both volumes — and extended it for an extra three days following the whatever date the 11th Circuit ruled on the same motion in that court, which it had yet to do.

If this reminds you of that one time at band camp when Judge Cannon exercised “extraordinary jurisdiction” to entertain a civil suit in a pending criminal case to appoint a Special Master even though she had no basis to do any of that, it’s because she’s doing it again. Except Cannon isn’t even claiming “extraordinary jurisdiction” here, she is just pretending like she still has power over this case and I guess hoping that no one will notice.

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Sooooo…Thursday night, the 11th Circuit rejected Nauta and de Oliveira’s request to enjoin Garland from releasing the report. BUT, of course, there was the problem of the injunction already issued by Judge Cannon, which was still out there. In its response to the defendants’ motion in the 11th Circuit, the Justice Department had asked the 11th Circuit to both reject the request for an injunction and overturn Cannon’s injunction. But the 11th Circuit — which apparently does care about actually having jurisdiction — said that unfortunately, they couldn’t legally rule on Cannon’s injunction since the Justice Department had not officially appealed that directly.

In other words, the 11th Circuit didn’t have jurisdiction over the injunction that was issued by a lower court judge who had no jurisdiction over the case. Still following?

[deep breath]

Sooooo…last night, the Justice Department filed an appeal of Judge Cannon’s injunction. Among the arguments made by DOJ are (these are in my words): 1) why the hell are we even talking about Volume I when that case has literally nothing to do with Florida, Judge Cannon, or the 11th Circuit; 2) the Justice Department does not plan to release Volume II while the case against the defendants are still pending (though Garland wants to transmit them to the chair and ranking members of the Judiciary Committees); and 3) Judge Cannon was a dummy and didn’t enjoin Smith from giving the report to Garland, but only enjoins Garland (who now has it) from releasing it, so this is effectively a separation of powers issue and intrudes on executive branch prerogatives.

Meanwhile, back at the ranch, the two co-defendants filed another motion with Judge Cannon, asking her to extend her 3-day extension (which expires Sunday), indefinitely. Hopefully the 11th Circuit will rule on this nonsense post haste and remind Cannon that she no longer has this case. But of course, even if that happens, the defendants can appeal it to the Supreme Court, which could stay the 11th Circuit’s ruling (i.e., uphold Cannon’s injunction “temporarily”)…and basically run out the clock by not ruling on it until after Trump becomes president. At which point the report, still in Garland’s hands, becomes part of Trump’s DOJ and will probably never see the light of day.

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Yep. So here we are. I think law schools should start offering a new course, called “Imaginary Jurisdiction,” where courts just make up their own rules as they go along and do whatever the hell they want. It’s apparently the new way to audition for a spot on the Supreme Court.

Anyway, here is my and Renato’s pod from last week (we discuss Trump’s sentencing yesterday on the episode that drops this Monday):

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Articles worth reading:

• I’ll be doing a short video in the next couple of days on the issues raised by the law requiring TikTok to divest its foreign ownership by January 19. In the meantime, here is my earlier piece for CAFE Insider with some background on the national security threats posed by the platform

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Upcoming events:

• TOMORROW! Guest speaker Ruth Ben Ghiat, author of Strongmen: From Mussolini to the Present, on Sunday, January 12, at 8 p.m. EST. I’m so excited for this chat! Ruth and I will springboard from our Brookings talk to take hard look at what lies ahead in the coming Trump administration, and how to prepare for the worst while remaining active and engaged. Ruth’s paid subscribers will also be joining us so you’ll get a chance to mingle with other Substackers!

• Wine & Fries Club Happy Hour with Special Guest, CNN Contributor Elliot Williams, Sunday, January 26, 8 p.m. Elliot has been killing it on air lately but you may not know about his ninja baking skills or the cool book he is writing…we’ll gab about both. Zoom link will be sent to Founding Members three hours ahead of the event.

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers.

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I’ve put a few pieces about President Carter in the recommended readings for this week, but I should just add that I feel a very personal connection to him. He was, for me, the first president I was really conscious of, something that I think neurologically “maps” an idea of a president into your brain. Whatever you want to say about his policy decisions, there is no doubt that he was presidential — and even at 3 years old, I could intuit that he was a good man. Fast forward 17 years and I found myself working at The Carter Center in Atlanta, Georgia, an institution that is part think-tank, part policy advocacy and implementation, part local community engagement (you can find a timeline of the Center’s highlights and major achievements here).

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The highlight of that summer for me was a trip for all of the interns to Plains, Georgia, to hear President Carter give his Sunday School sermon. I still vividly remember the topic of his sermon that day: President Carter discussed the idea of being a missionary, and how we normally think of missionaries as people who spread the Christian faith to other people. But he encouraged the congregation to think about the concept in a broader lens; to consider the principles and values that drive us individually, and how we can all be “missionaries” for those ideals in our own life. At the time of that visit I was considering applying to law school, and President Carter’s sermon had a profound impact on how I thought about my future career as a lawyer. I ended up writing my law school essay about that sermon and how it applied to my own life. I don’t think I was conscious of it at the time, but I’m pretty sure there is a thru-line from that sermon to my decision to join the FBI four years later.

I think President Carter’s sermon is especially salient as we head into the New Year. There’s a lot to be concerned about, as Renato and I discuss in this week’s podcast. But the one thing we have control over is how we show up in the world, as citizens, as neighbors, as fellow humans — and in that sphere we can all be missionaries for our shared values. Hopefully, even with President Carter’s passing, his legacy can still animate how we approach the next four years.

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Articles worth reading:

• There are a lot of pieces in the last week that question the conventional view of Carter’s presidency; “What Jimmy Carter Left Behind: The Foreign Policy Legacy of an Underappreciated President,” by Tom Donilon for Foreign Affairs is worth reading

• I enjoyed some of the personal memories shared by my Yale colleague Jeff Sonnefeld in this piece for Newsweek, “How Jimmy Carter Lost His Job and Found His Mission: A Personal Remembrance”

• This Smithsonian article (from 2020) about how Carter’s throwaway comment to an interviewer for Playboy magazine almost cost him the presidency is a good reminder of how far the evangelical right’s so-called “standards” have fallen since then

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Upcoming events:

• Guest speaker Ruth Ben Ghiat, author of Strongmen: From Mussolini to the Present, on Sunday, January 12, at 8 p.m. EST. Due to scheduling conflicts I had to push this event out one week, but I hope you can still make it! Ruth and I will springboard from our Brookings talk to take hard look at what lies ahead in the coming Trump administration, and how to prepare for the worst while remaining active and engaged. Ruth’s paid subscribers will also be joining us so you’ll get a chance to mingle with other Substackers!

• Wine & Fries Club Happy Hour with Special Guest, CNN Contributor Elliot Williams, Sunday, January 26, 8 p.m. Elliot has been killing it on air lately but you may not know about his ninja baking skills or the cool book he is writing…we’ll gab about both. Zoom link will be sent to Founding Members three hours ahead of the event.

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers.

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Check out the recommended readings for this week for info on how to contribute to effort Norm mentions to create a professional services network to help protect individuals targeted by the new Trump administration. And make sure to scroll down to the bottom for info on upcoming events, including our Holiday Happy Hour (tomorrow!) and our upcoming Wine & Fries special guest!

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Articles worth reading:

• This NBC News piece explains the State Democracy Defenders Fund, which seeks to create a network of legal, financial, and psychological experts to assist people who might be targeted by the Trump administration with baseless criminal investigations, selective IRS audits, frivolous libel lawsuits, or other forms or harassment and intimidation. If you are so inclined, you can contribute to this effort here.

• A district court just upheld the law requiring ByteDance, which owns the social media TikTok, to divest its foreign ownership by January 19, finding that the government met its burden of justification under the First Amendment. Here is my backgrounder for Cafe Insider on the national security threat posed by TikTok that prompted the U.S. government to take this unprecedented step.

• I don’t usually cite Fox News articles, but I have to say this one, which actually covers the plea deal reached by Alex Smirnov, an informant who provided false information about the Bidens to the FBI, was surprising. Weird how this whole episode got basically zero coverage before the election (by Fox News or any other mainstream outlet)

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Upcoming events:

• TOMORROW! Sunday, December 29, 5 p.m. EST, The Freedom Academy Virtual Holiday Happy Hour! NO Trump talk allowed! Everything is so heavy nowadays…I just want to have a fun, positive discussion as we close out the year. This is a great way for new members to meet the “upperclassmen”! :) Zoom link will be sent to paid subscribers three hours before the happy hour.

• DATE CHANGE: Guest speaker Ruth Ben Ghiat, author of Strongmen: From Mussolini to the Present, on Sunday, January 12, at 8 p.m. EST. Due to scheduling conflicts I had to push this event out one week, but I hope you can still make it! Ruth and I will springboard from our Brookings talk to take hard look at what lies ahead in the coming Trump administration, and how to prepare for the worst while remaining active and engaged. Ruth’s paid subscribers will also be joining us so you’ll get a chance to mingle with other Substackers!

• NEW! Wine & Fries Club Happy Hour with Special Guest, CNN Contributor Elliot Williams, Date/Time TBA. Elliot has been killing it on air lately but you may not know about his ninja baking skills or the cool book he is writing…we’ll gab about both. Zoom link will be sent to Founding Members three hours ahead of the event.

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers.

I hope you had a wonderful holiday, however you celebrate. As we wind down 2024, I’d love to know: What was (or were) your greatest accomplishment(s) this year?

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I’m still catching up on the news, from which I fortunately (mostly) unplugged while I was away. In the meantime, here is my and Renato’s discussion about pardons, as I promised in my last Round Up. And we celebrated our 100th episode of It’s Complicated!

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Noteworthy clips from this week:

I hooped on ABC News last night to discuss the terror attack at the Christmas market in Germany with Terry Moran:

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Articles worth reading:

• In light of my recent class posts/guest speakers on the power of influencers to shape perceptions and behavior, this Rolling Stone piece about the “Hawk Tuah girl” (you will need to Google this one for yourself), the meme coin she co-founded, and the class-action lawsuit that has resulted perfectly encapsulates everything that is stupid about our culture today.

Upcoming events:

• Sunday, December 29, 5 p.m. EST, The Freedom Academy Virtual Holiday Happy Hour! NO Trump talk allowed! Everything is so heavy nowadays…I just want to have a fun, positive discussion as we close out the year. This is a great way for new members to meet the “upperclassmen”! :) Likely the last week of December.

• Guest speaker Ruth Ben Ghiat, author of Strongmen: From Mussolini to the Present, on Sunday, January 5, at 8 p.m. EST. Ruth and I will springboard from our Brookings talk to take hard look at what lies ahead in the coming Trump administration, and how to prepare for the worst while remaining active and engaged. We promise to leave you with action steps and hope, so please join us!

• I am (still) working on a Wine & Fries Club (founding member) guest/event so stay tuned…

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers.

If you’re stuck in freezing temperatures like I am, hope this photo of me on a sunset cruise in Antigua will warm you up! Happy holidays everyone!

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The quality of mercy is not strained;
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest;
It blesseth him that gives and him that takes:
'T is mightiest in the mightiest; it becomes
The throned monarch better than his crown:
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthronèd in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God's
When mercy seasons justice.

—The Merchant of Venice, Act IV, Scene I

I have been thinking this week of the above Shakespearean monologue, which I know by heart since directing a production of The Merchant of Venice in my third year of law school (for credit!). Although in the play Portia is imploring Shylock not to enforce the letter of his contract that would allow him to extract a pound of flesh from his delinquent debtor, in our current moment it perfectly captures the awesome, God-like authority that comes with the power to pardon.

The pardon power is a bit of an anomaly in a Constitution that sought to curb and check executive authority; it’s one of the few, if not only, “royal prerogatives” that made its way into the document. In The Federalist No. 74, Alexander Hamilton argues that the ability to pardon acts as a safety valve and corrective to the injustices that might naturally occur in the course of the criminal justice system — and, importantly, that to be effective, the power should rest in one person:

Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance.

In short, Hamilton makes the same point as Portia on the need to “season” justice with mercy, especially when that justice has been particularly cruel.

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It’s important to keep this in mind when looking at President Biden’s pardoning of his son, Hunter. The question that should be asked is: Does this pardon enhance justice and the rule of law, or undermine it? I would argue that in Hunter’s case it enhances it, by correcting for a severe and selective application of the law to a person who would otherwise not have been prosecuted but for his last name. And, although President Biden could have pardoned Hunter earlier and cut the prosecution off at the knees, he didn’t: He let justice take its course first.

The “blanket pardon” extending back to 2014 is a little trickier, since that preempts justice altogether. But we are not living in normal times, and we must consider that the latitude of the Justice Department and the FBI to engage in politically motivated, and even fabricated, investigations has been significantly expanded and sanctioned by the Supreme Court’s immunity decision. Clearly, President Biden knows that it will be very easy for a Trump administration to gin up an “investigation” into the right-wing Burisma conspiracy theories (you can read my deep dive into that rabbit hole here). The legality of a blanket pardon has not been tested (the only other real precedent is President Ford’s blanket pardon of Nixon), so Trump’s Justice Department could very well still try to investigate and prosecute Hunter and litigate this issue up to the Supreme Court. But this would still add a speed bump — “friction” — to that possibility.

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As we look ahead to potentially having an FBI led by a man who has an “enemies list” and has explicitly vowed revenge against specific people1 — including former members of congress, military officials, and government prosecutors — it’s worth asking how Biden can use the pardon power to create friction for others who may be unjustly targeted. A “protective pardon” to shield the people who tried to realize democratic (small “d”) ideals like transparency, accountability, and the rule of law, “seasons justice” by preventing the legal system from being weaponized against them.

Finally, in The Federalist No. 74, Hamilton addresses whether there should be an exception to the pardon power for treason, or at least left to the legislature in those instances. Hamilton presciently notes that this could be dangerous because in such cases, the legislature might actually be sympathetic to the causes which gave rise to the seditious behavior, and prematurely exonerate the guilty party (which is more or less what happened in Trump’s second impeachment trial). But, he notes, there are also reasons why a president may be best suited for determining when mercy is warranted even for a crime against the state:

[W]hen the sedition had proceeded from causes which had inflamed the resentments of the major party, [the legislature] might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency…. [I]n seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.

On that front, I’ll throw out a controversial take: I think President Biden should pardon Trump. I believe this would recognize the fact that the cases against him will never be fully realized (sorry folks, they are done), and give the “final word” on it to Biden, who could lay out the details of the crimes committed and why he bestowing grace on his predecessor/successor. Would Trump accept it? Perhaps not. But it would be a strong symbolic act demonstrating a willingness and need to close a chapter and move forward together. It would also highlight the vindictiveness of a Trump administration that continued to target after perceived “enemies” moving forward.

Renato and I took Thanksgiving off so I don’t have a podcast to post for this week but we discuss the pros and cons of the pardon issue in more detail in this coming week’s pod, so stay tuned!

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Noteworthy clips from this week:

I discussed why Kash Patel is an outlier in the history of FBI Directors, and why that is a problem for the FBI (and for us). In case you missed it, I did a longer video explainer earlier this week which I hope you will check out.

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Articles worth reading:

• This Atlantic article from April 2022 has been in my queue for a while but I am glad I am reading it now as it perfectly describes where we are now and what we need to fix going forward (there is an audio option at the top!)

• With all of the pardon talk, this throwback to my first New York Times op-ed (and my first op-ed ever) in 2001, right after I graduated from law school

Upcoming events:

• TBA: The Freedom Academy Virtual Holiday Happy Hour! NO Trump talk allowed! Everything is so heavy nowadays…I just want to have a fun, positive discussion as we close out the year. Likely the last week of December.

• Guest speaker Ruth Ben Ghiat, author of Strongmen: From Mussolini to the Present, on Sunday, January 5, at 8 p.m. EST. Ruth and I will springboard from our Brookings talk to take hard look at what lies ahead in the coming Trump administration, and how to prepare for the worst while remaining active and engaged. We promise to leave you with action steps and hope, so please join us!

• I am working on a Wine & Fries Club (founding member) guest/event so stay tuned…

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers.

I’ll be in Antigua next weekend so no round up, but I will try to send a shot of the beach!

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One of the cool things about Substack is that it gives you lots of fun stats about your subscriber base, and I was thrilled to see that The Freedom Academy has readers from all 50 states and around the world! I am especially intrigued by the 16 subscribers in Russia and the 9 in China, who I assume are the intelligence handlers assigned to monitor my content…hopefully they are learning something (Russia and China, I am waving to you guys right now!).

Thanks so much for your support and engagement — this has truly been one of the most rewarding projects I have worked on in the last couple of years, and I look forward to continuing it in 2025!

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And now, if you want to take a break from football (and are ready to start day drinking), here is my and Renato’s last pod about the potential damage Trump’s nominees could do to their respective agencies:

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Noteworthy clips from this week:

I discussed what may come next following Special Counsel Jack Smith’s dismissals of the charges against Trump:

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Movies worth watching:

So I have recently learned about the Museum of Political Corruption, which was started by a concerned citizen as the beginning of the first Trump administration unfolded. It’s right now only an online museum, though they are raising funds to create a brick-and-mortar one. Still, they partner with various groups and institutions to put on some great programming (I will be speaking at an event they are putting on in the spring!), and one of the things I love is their DISRUPT film series. One of their upcoming events is a live online discussion event on how to preserve democracy, which will center around the following film currently being aired on PBS, which is on my watch list for this weekend:

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Upcoming events:

• I am so excited to be joining my colleagues Amb. Norm Eisen and Professor Ruth Ben Ghiat for a virtual panel sponsored by the Brookings Institution on “Democracy’s next act: How to build resilience around the world.” The event will take place online at 3 p.m. on Wednesday, December 4 — you can find the link here to join!

• NEW! Zoom Office Hours, Wednesday, December 5, 5-6 p.m. We’ll discuss the latest. Zoom link will be sent to paid subscribers three hours before the event. This will not be recorded.

• Guest speaker Ruth Ben Ghiat, author of Strongmen: From Mussolini to the Present, on Sunday, January 5, at 8 p.m. EST. Ruth and I will springboard from the Brookings talk to take hard look at what lies ahead in the coming Trump administration, and how to prepare for the worst while remaining active and engaged. We promise to leave you with action steps and hope, so please join us!

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers.

Thank you again for your support and have a wonderful Thanksgiving weekend!

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OK, it’s not ALL his fault, and hindsight is 20/20, but I really feel like there is a multiverse where we’d either have an incoming Harris administration right now or, at least, some less psychotic GOP administration had Garland simply appointed a special counsel to investigate Trump’s role in January 6 from the jump.

From. The. Jump.

It’s hard to remember now, but there was a very small window between January 6 and, I dunno, around June of that year where it seemed unthinkable that Trump would ever be the Republican nominee. Even Trump was going through “stages of grief” in that time because he thought his political career was over. Had the investigation started then, the charges and trial may have happened in a timely manner, and it would not have been perceived as “going after” a presidential candidate, because he wasn’t one and no one thought he’d be one. And it would have been way too early for him to declare his candidacy like he did right after the Mar-a-Lago raid.

In fact, if Trump was already under investigation for January 6 the idea of Trump being under investigation for a completely different crime wouldn’t have been such a shock (as it was when the raid happened), and maybe even that case would have taken a different trajectory. (Who knows, had the January 6 investigation against Trump commenced immediately after Garland was appointed, he may have been scared enough to just comply with the Justice Department’s subpoena and given the documents back.)

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I know. Woulda Coulda Shoulda.It doesn’t matter now. But on our last podcast, Renato and I were joined by , author of , to discuss whether more prompt action by Garland would have made a difference. Give it a watch:

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Exciting News!

So if you have been jonesing to get out of the country since November 5, I have an idea for you! Renato and I will be hosting a cruise from Denmark to Iceland, with stops in Norway and Sweden in between, next July. If you are a fan of the It’s Complicated podcast, please join us! This is a smaller ship — about 70 staterooms — with award-winning dining and service. (Plus maybe you can scout out some real estate at the ports of call.) Just call the Travelstore or scan the URL below for pricing and details!

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Movies worth watching:

For those of you enrolled in my Substack course, you know that I spent a lot of time discussing the concept of social capital, and why it matters for a democracy (see Class 26, Class 27, and Class 29). All of these lessons drew heavily on the work of Robert Putnam, author of Bowling Alone: The Collapse and Revival of American Community. I was therefore so excited to learn that there is a new documentary on Netflix, “Join or Die,” about this exact topic! I plan to check it out this weekend, but here is a trailer (and a prescient interview Putnam gave to the New York Times this past July):

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Upcoming events:

• I am so excited to be joining my colleagues Amb. Norm Eisen and Professor Ruth Ben Ghiat for a virtual panel sponsored by the Brookings Institution on “Democracy’s next act: How to build resilience around the world.” The event will take place online at 3 p.m. on Wednesday, December 4 — you can find the link here to join!

• NEW: Guest speaker Ruth Ben Ghiat, author of Strongmen: From Mussolini to the Present, on Sunday, January 5, at 8 p.m. EST. Ruth and I will springboard from the Brookings talk to take hard look at what lies ahead in the coming Trump administration, and how to prepare for the worst while remaining active and engaged. We promise to leave you with action steps and hope, so please join us!

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers.

I had a great time in Madrid for my 50th — thanks to those of you who sent the birthday wishes!

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There’s no sugar coating it: This week sucked. Obviously. I’m still processing, as many of you are, and trying to make sense of it all. One thing has become clear in this election, though: Perception is reality, and whoever can shape perceptions can manipulate people into acting against their own best interests. That lesson is coming at an apropos time for my Substack course, because in the coming weeks we’ll look at how tribal identity, emotion, and group dynamics can affect our so-called “marketplace of ideas” — something that would be worth understanding, given that a billionaire shadow president controls one of the most powerful social media platforms in this country. (Also don’t miss my guest speaker for November, Renee DiResta, author of Invisible Rulers: The People Who Turn Lies Into Reality — details below, under “Upcoming Events.”)

In the meantime, what comes next? A lot, I’m afraid, but we need to be clear-eyed and purposeful and focus on the next right step. For right now, that will include getting as much information as possible out to the American people about the federal cases against Trump that will never be seen to fruition. There are reports that Special Counsel Jack Smith is winding down his cases, and I’ve seen some criticisms that this amounts to “obeying in advance.” But I think it’s more strategic than you might think.

Under the Special Counsel regulations (Section 600.8(c)), Jack Smith is required to produce a report to Merrick Garland at the conclusion of his work, explaining the prosecution and declination decisions he made in the course of his investigations. This necessarily includes laying out the evidence that was collected, including evidence of the subject’s state of mind. There are three big reasons that it’s critical that Jack Smith end his investigations now, so that he has enough time to write up a comprehensive report for both the January 6 case and, more importantly, the Mar-a-Lago classified documents case:

1. It provides an important (and potentially the only) historical record of what actually happened in both of these crimes

Let’s assume that Jack Smith decided to just barrel along and continue with the cases, forcing Trump or his newly-appointed Attorney General to fire him next spring. It’s not clear to me what purpose that would serve. This is not 2017, or even 2019, when the firing of a Special Counsel would generate outrage. Also, under the Supreme Court’s immunity decision, it would not even constitute obstruction of justice…and even if it did, who would investigate it? A summary firing of Jack Smith would absolutely ensure that he did not have time to document his findings. Further, the cases would be withdrawn from the courts by the Justice Department, and both investigations would disappear into a black hole. We will never have a public trial, with the accompanying judicial documentation of the Justice Department’s case against Trump: The final report will be it.

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2. This is the only way that the gathered evidence will see the light of day

It gets worse. As I noted above, Trump ordering his Attorney General, or even FBI Director, would not constitute obstruction of justice. Or at least, such actions would be immune from prosecution, because these unlawful orders would constitute “official acts.” (If you need a refresher on the immunity decision, read my post, “The Bloodless Coup Has Started…With the Court.”)

What this means is that I think it is entirely possible — and likely — that the case files will themselves entirely disappear. Just as a reference point, you can read this piece I wrote in 2017 for Politico, right after James Comey’s firing. It was piece to reassure people that the FBI’s independence would remain intact and the cases would go on. But pretty much everything I wrote there no longer applies, because they center around a trust that the civil servants would follow the law, and the Constitution. That is not something we can count on anymore.

Let’s say that Trump ordered the FBI Director and Attorney General to purge any records of these investigations — including interview notes, communications gathered, or whatever — from the agency. That’s an “official act,” folks. Untouchable. But, you might say, the people who follow the orders could be liable, right? Yeah…I’m not so sure about that. Under the so-called “unitary executive” theory — to which a majority of the Court subscribes — inferior executive officers are just extensions of the President. I really don’t see how an order that is “official” under Article II of the Constitution could be unlawful to follow. (Yes, this has implications for the military.) Further, the “official act” couldn’t be used as evidence (making it hard to prove that any crime happened), and in any case, Trump can just pardon his lackeys.

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In some ways this concern might be less urgent for the January 6 case, since the January 6 Committee gathered such a huge volume of evidence and testimony that exists for the public record (I’d download the Committee’s report now, though, just in case that suddenly “disappears” from the internet also). But we don’t have any clear “story” of the classified documents case, all the more so because of the weird way the case proceeded and because it was government by the Classified Information Procedures Act, which shields a lot from public view, unlike normal criminal cases. A central repository of the full scope of what was gathered in the investigation — even if some things need to be redacted to protect national security — is essential.

Which brings me to the last point.

3. The public will learn of the danger Trump poses to national security beginning on January 20

In his recent filing in the Mar-a-Lago case arguing against Trump’s motion for adjournment of a trial date (i.e., to push out the trial until after the election), Smith intimated that he had the answer to the million-dollar question raised by the purloined documents: Why?

Specifically, Smith says the following:

But the fact is that the great majority of the allegations in the indictment—including allegations of the defendants’ conduct, knowledge, and intent—turn on evidence contained in the unclassified discovery, not the much smaller set of classified discovery. That the classified materials at issue in this case were taken from the White House and retained at Mar-a-Lago is not in dispute; what is in dispute is how that occurred, why it occurred, what Trump knew, and what Trump intended in retaining them—all issues that the Government will prove at trial primarily with unclassified evidence. (emphasis added)

The public must know what Trump intended to do, or in fact did, with the highly classified defense information in his possession. This is a man who will once again be in charge of the country’s most precious secrets, and Americans deserve to know whether, how, and why he has already compromised our national security.

It’s worth noting that under the Special Counsel regulations (Section 600.9(c)), it is up to the Attorney General to decide whether or not to release any final report to the public, based on the “public interest” in its findings. It seems to me that the public interest in these reports is beyond question — let’s hope that Merrick Garland agrees.

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*I am not including last week’s podcast in this round up because it has been, shall we say, overcome by events. :(

Articles worth reading:

• It’s worth revisiting this Just Security piece I co-wrote with former CIA officer Marc Polymeropolous on what we can expect to happen in the intelligence community under a Trump administration

• This piece on ’s on why the right- and left-wing media ecosystems are so different

• My Substack piece on the asymmetry between traditional media and the right-wing “propaganda feedback loop” which creates a completely different, and thoroughly insulated, reality for its consumers

Upcoming events:

• Guest Speaker Renee DiResta, author of Invisible Rulers: The People Who Turn Lies Into Reality, November 21, 12-1 p.m. EST. This will be a very timely discussion given the impact of the right-wing information ecosystem on this year’s election, and the power that social media will wield in our political space moving forward. This will dovetail with our upcoming module on Social Media and the Media Ecosystem, where we will look at how social media and “propaganda feedback loops” like Fox News and Elon “invisible hand” Musk have upended some of the basic underpinnings of our democracy. A Zoom link will be sent to paid subscribers three hours before the talk and will be recorded and posted after.

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers.

I am headed to Madrid next week, where I will celebrate my 50th (!) birthday on Friday — so no round up next week! Hopefully the trip away will help me recharge and be ready to pick up the fight again when I get back. Hang in there, guys.

Adding some kitty therapy here:

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The prediction about the threat of disinformation in this year’s presidential election was that Russia would try to use AI and deepfakes to try to influence voters. They have tried that, but it turns out their most successful effort so far has been a seemingly sloppy video purporting to show Haitian immigrants — who ostensibly entered the U.S. six months ago and have already become American citizens — voting multiple times, using different IDs.

How dumb is this? Let me count the ways. First of all, I’d love to know more about the 6-month fast track to U.S. citizenship, as I’m sure would the millions of green card holders and naturalized who have had to go through a long and arduous process to get their status. Second, does it not seem odd that two people violating the law would create video evidence of their crimes, and then post it on social media? Third, why do the alleged Haitians have West African accents? I just can’t.

Of course, logic and common sense hasn’t stopped the video from going viral in MAGA circles, which reflects the fact that Russia really doesn’t need to use advanced technology to interfere in the election, it can just piggyback on existing Trump-propagated narratives. As I’ve detailed in my recent post about directionally motivated reasoning, a population that is susceptible to confirmation bias and actively seeking identity-confirming narratives doesn’t need much prodding to take the bait and amplify narratives that dovetail with the Trump campaign’s lies about illegal voting. Who needs troll farms when MAGA zombies will do the amplification for you?

And speaking of amplification, the video spread prolifically on X, prompting Georgia Secretary of State Brad Raffensberger to call on Elon Musk to take the video down. (It’s not clear that that has happened yet.) And the FBI, along with the ODNI and CISA, also quickly issued a joint statement attributing the video to Russia. Given what came to light last week regarding Musk’s frequent phone calls to Putin, it’s not surprising that the video gained traction on his platform. Renato and I discuss Musk’s Pooty calls in last week’s pod:

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Articles worth reading:

• Expect the best but prepare for the worst: As we head into Tuesday, this Politico piece outlining the ways that Trump will try to effect another coup, even with a Harris victory, is worth reading

• Some good explainers by at about election-related litigation and the Supreme Court: Part I and Part II

Upcoming events:

• TOMORROW! Freedom Academy Book Club with Yale Professor Jason Stanley, author of Erasing History: How Fascists Rewrite the Past to Control the Future, November 3, 8 p.m. EST. I’m soooooo excited that my friend and colleague Jason Stanley will be joining us to discuss his new book, which was released just last week! We’ll have this book discussion right before the election, to remind us what’s at stake. The Freedom Academy Book Club discussions are open to all paid subscribers and recordings of the talks are posted afterwards in case you can’t make it live.

• NEW! Zoom Office Hours, Friday, November 8, 9-10 a.m. We’ll celebrate or share exit strategies, depending on what happens Tuesday. Zoom link will be sent three hours before the discussion. This will not be recorded.

• Guest Speaker Renee DiResta, author of Invisible Rulers: The People Who Turn Lies Into Reality, November 21, 12-1 p.m. EST. Finally! I have been waiting for someone to unpack how social media and algorithms distort our marketplace of ideas, and am thrilled that Renee has agreed to be a guest speaker for our class! This will dovetail with our upcoming module on Social Media and the Media Ecosystem, where we will look at how social media and “propaganda feedback loops” like Fox News and Elon “invisible hand” Musk have upended some of the basic underpinnings of our democracy. A Zoom link will be sent to paid subscribers three hours before the talk and will be recorded and posted after.

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers.

Have you voted yet? How are you feeling about Tuesday?

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Well, it looks like this has been Billionaires Destroying Democracy week. Where do I even start?

I suppose we can begin with the $1 million voter “sweepstakes” Elon Musk has been running, where he is giving a million dollar Publisher’s Clearing House-type check every day until the election…but only if you are a registered voter who signs a petition in support of the First and Second Amendments. Renato and discuss this more on this week’s podcast, which drops on Monday, but in case you’re wondering, yes, it’s illegal. The question is what can be done about it. DOJ has sent Musk a warning that his actions violated election laws on Wednesday, but Musk appears not to care and, after taking a one-day break, resumed his giveaway on Thursday night. So.

Then we have the Wall Street Journal’s report of Musk’s Pooty calls, in which U.S. intelligence officials revealed that Musk has had several “chats” with Vladimir Putin since 2022. Among other details, the report states that Musk has had conversations with Putin’s deputy chief of staff Sergei Kiriyenko, who currently runs several Internet domains that propagate Russian propaganda (including on X), and that last year Putin asked Musk not to activate Starlink, his satellite company which provides internet services, over Taiwan, as a favor to Putin’s pal, President Xi Jinping. Given that Musk is contracted with the U.S. government to provide Starlink services in Ukraine and has a top secret security clearance, all of these contacts should have been reported. They were not. (And yes, all of this is also illegal, under the Logan Act and, potentially, the Foreign Agent Registration Act and Espionage Act, depending on the nature of the relationship and what was discussed).

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Meanwhile, back at the ranch, NYU Professor, Ruth Ben Ghiat, an expert on fascism, was disinvited to speak at the U.S. Naval Academy following pressure from right-wing groups that her personal writings made her too “partisan.” Never mind that her lecture — which was to be given at the invitation of the history department at Annapolis — wasn’t about Trump, but about how militaries have been coopted in authoritarian regimes in Italy, Russia, and Chile. Not really that important of a topic for tomorrow’s military leaders. Of course, personal partisanship didn’t stop the U.S. Military Academy at West Point from having Musk — who has literally campaigned for Trump at his rails — come speak to their cadets at a major keynote event on campus about “leadership.” Yeah.

And THEN, because you can never have too many billionaires screwing things up, Jeff Bezos nixed The Washington Post’s planned editorial endorsement of Kamala Harris, the first time the newspaper has not weighed in on a presidential race since the 1980s. Apparently Bezos wanted to preempt Trump’s wrath in the event that he wins, knowing that he has vowed to retaliate against his enemies.

Democracy dies in darkness, indeed.

Podcast appearances this week:

• I joined Elie Honig on the Cafe Insider podcast this week to discuss the legal and national security issues surrounding the U.S. government’s ban of Tik Tok

Articles worth reading:

Since this is the billionaire edition of the Friday Round Up, two pieces:

• This New York Times reporting of the deep entanglement of Musk’s companies with the federal government, both in contracts and oversight investigations. Musk is angling for a position in Trump’s cabinet, if he is elected, as the head of a new “Department of Government Efficiency” that would cut the bureaucratic red tape.

• This great piece by on his Substack on the unique characteristics of the billionaire class and why those aren’t so great for society.

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  Upcoming events:

• TOMORROW: Wine & Fries Club Workshop: INTEL BRIEF: Who Wants Your Data and Why, Sunday, October 27, 8 p.m. EDT. In light of the seemingly endless parade of DOJ indictments against rogue actors for foreign influence in our political and electoral system, I will be offering founding members a chance to hear my talk that uses the U.S. Intelligence Community’s current Annual Threat Assessment to explain in lay terms how our foreign adversaries and use cybertools – including theft, espionage, and hybrid warfare – to facilitate their geopolitical objectives. I recently gave this talk to the Yale community at the invitation of our IT department and one attendee wrote to say it was “the most interesting talk I have attended at Yale.” (!) Zoom link will be sent to founding members three hours prior to the talk and will be recorded and posted after.

• Guest Speaker Jennifer Mercieca, author of Demagogue for President: The Rhetorical Genius of Donald Trump, Wednesday, October 30, 12-1 p.m. EST. Given that Trump’s fascist rhetoric is escalating, I am pushing back our talk with Renee DiResta to November (see below) and instead invited back one of our previous guests for October. (You can check out Professor Mercieca’s earlier talk here.) I’m excited to discuss how Trump’s rhetoric offers his followers ways to resolve their cognitive dissonance through moral disengagement — a topic I’ll be exploring in my next class post, coming up this week.

• Freedom Academy Book Club with Yale Professor Jason Stanley, author of Erasing History: How Fascists Rewrite the Past to Control the Future, November 3, 8 p.m. EST. I’m soooooo excited that my friend and colleague Jason Stanley will be joining us to discuss his new book, which was released just last week! We’ll have this book discussion right before the election, to remind us what’s at stake. The Freedom Academy Book Club discussions are open to all paid subscribers and recordings of the talks are posted afterwards in case you can’t make it live.

• Guest Speaker Renee DiResta, author of Invisible Rulers: The People Who Turn Lies Into Reality, November 21, 12-1 p.m. EST. Finally! I have been waiting for someone to unpack how social media and algorithms distort our marketplace of ideas, and am thrilled that Renee has agreed to be a guest speaker for our class! This will dovetail with our upcoming module on Social Media and the Media Ecosystem, where we will look at how social media and “propaganda feedback loops” like Fox News and Elon “invisible hand” Musk have upended some of the basic underpinnings of our democracy. A Zoom link will be sent to paid subscribers three hours before the talk and will be recorded and posted after.

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers.

T minus 10 days, y’all — let’s do this.

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I’m now in Bali, catching a few days of rest and relaxation after a State Department-sponsored conference for higher education professionals who focus on international recruitment (hey, working in admissions has its perks). Bali is incredibly beautiful and rejuvenating, and also fascinating for me because it is 80% Hindu, even though Indonesia is a majority Muslim country overall. As an Indian-American, it’s cool to see how Indian and Hindu culture have influenced Balinese culture and created its own unique fusion, from the cuisine to the religious dances to the rituals in the Hindu temple. I had a chance to visit the Tirta Empul Temple and participate in a purification ceremony (not sure if that gets canceled out if I return to the U.S. in this political climate). It’s been a lovely visit so far and I can’t wait to come back and visit this part of the world again.

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One thing that I have been thinking about since my conference is how Trump and J.D. Vance’s xenophobic rhetoric hurts our economy by discouraging international students from studying in the U.S. Universities are economy engine-drivers for their respective states — it’s one of the reasons that they were among the first to push back against Trump’s ill-conceived travel ban in 2017. And not for nothing, but many universities — including those in red states — rely on international students, many of whom (though not all) have the means to pay full freight to get undergraduate and advanced degrees here, to offset the cost and provide scholarships to U.S. students. When these prospective international students see people like themselves being accused of eating pets and targeted for harassment generally, it doesn’t make coming halfway around the world so appealing. (The gun violence doesn’t help, either — many I’ve spoken to worry that it is unsafe to study here, and I don’t blame them.) One administrator from the University of Alabama lamented that her state’s anti-DEI laws have also made it harder to create programs to help international students adjust to life in the U.S. It’s just another one of the many ways that the Trump agenda is anti-American and incredibly short-sighted…and all the more reason to make sure we bring this election back to sanity on November 5.

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Articles worth reading:

• I loved this great piece by Tom Nichols for The Atlantic on what George Washington would have thought of Donald Trump (take a wild guess)

• And this piece by Anne Applebaum on Trump’s dehumanizing rhetoric, and how his is intentionally invoking the fascists of the past

Upcoming events:

• Wine & Fries Club Workshop: INTEL BRIEF: Who Wants Your Data and Why, Sunday, October 27, 8 p.m. EDT. In light of the seemingly endless parade of DOJ indictments against rogue actors for foreign influence in our political and electoral system, I will be offering founding members a chance to hear my talk that uses the U.S. Intelligence Community’s current Annual Threat Assessment to explain in lay terms how our foreign adversaries and use cybertools – including theft, espionage, and hybrid warfare – to facilitate their geopolitical objectives. I recently gave this talk to the Yale community at the invitation of our IT department and one attendee wrote to say it was “the most interesting talk I have attended at Yale.” (!) Zoom link will be sent to founding members three hours prior to the talk and will be recorded and posted after.

• NEW! Guest Speaker Jennifer Mercieca, author of Demagogue for President: The Rhetorical Genius of Donald Trump, Wednesday, October 30, 12-1 p.m. EST. Given that Trump’s fascist rhetoric is escalating, I am pushing back our talk with Renee DiResta to November (see below) and instead invited back one of our previous guests for October. (You can check out Professor Mercieca’s earlier talk here.) I’m excited to discuss how Trump’s rhetoric offers his followers ways to resolve their cognitive dissonance through moral disengagement — a topic I’ll be exploring in my next class post, coming up this week.

• Freedom Academy Book Club with Yale Professor Jason Stanley, author of Erasing History: How Fascists Rewrite the Past to Control the Future, November 3, 8 p.m. EST. I’m soooooo excited that my friend and colleague Jason Stanley will be joining us to discuss his new book, which was released just last week! We’ll have this book discussion right before the election, to remind us what’s at stake. The Freedom Academy Book Club discussions are open to all paid subscribers and recordings of the talks are posted afterwards in case you can’t make it live.

• Guest Speaker Renee DiResta, author of Invisible Rulers: The People Who Turn Lies Into Reality, November 21, 12-1 p.m. EST. Finally! I have been waiting for someone to unpack how social media and algorithms distort our marketplace of ideas, and am thrilled that Renee has agreed to be a guest speaker for our class! This will dovetail with our upcoming module on Social Media and the Media Ecosystem, where we will look at how social media and “propaganda feedback loops” like Fox News and Elon “invisible hand” Musk have upended some of the basic underpinnings of our democracy. A Zoom link will be sent to paid subscribers three hours before the talk and will be recorded and posted after.

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers.

Back to the real world in a couple of days…what’s new there?

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Renato and I will discuss these details, and their probative value, when we record our podcast later today (and which will be released on Monday morning on you favorite podcast platform). For now, though, let’s quickly review Smith’s general legal argument. In case you need a refresher on the Supreme Court’s somewhat convoluted approach to determining immunity, here is a handy flowchart that goes through the legal decision tree:

You’ll see that there are basically three pathways: The first includes acts that fall within core executive functions, which have “absolute immunity.” Anything that falls in this category is off the table, do not pass GO, do not collect $200. The Court has already determined that Trump’s conversations with his Acting Attorney General, Jeffrey Clark, about sending a letter to state election officials making false claims of voter fraud, fall into this category. So, this entire criminal subplot has been stripped from Smith’s charges.

The second category is anything that fall in the “outer perimeter” of executive duties — borrowing a phrase from a Nixon-era case extending immunity to presidents in the civil context — which have “presumptive immunity.” Trump’s conversations with Vice President Mike Pence fall into this category. Smith seeks to rebut the presumption of immunity by arguing that these do not intrude on functions of the executive branch because they were occurring in each individuals’ capacity as running mates, not executive branch officials.

In other words, Smith wants to move this entire set of acts to the right side of the chart, which include unofficial acts which have no immunity, and are fair game. Here, Smith argues, is where everything else outlined in the indictment falls, from Trump’s attempts to corral fake electors to his tweets egging on the mob already attacking the Capitol. And if you need a refresher on how all of these moving parts fit together into the larger scheme, here is another helpful graphic:

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I do want to take issue with a hot take by one influential legal commentator accusing Smith of taking a “cheap shot” by filing his motion so close to the election, and that he is doing so in order to “chip away at Trump’s electoral prospects.” ??? Let’s please be real. The timing of this motion was determined by 1) Trump’s own endless dilatory tactics and 2) the Supreme Court’s decision to take its sweet time deciding the immunity issue. The Court itself has sent the issue back to the district court to make the “fact-specific determinations” on whether the charged acts or evidence to support them are immune from prosecution. Finally, the Justice Department’s “90 day rule” (which states that the department should not select “the timing of investigative steps or criminal charges for the purpose of affecting any election”) concerns investigative steps or charges being filed close to an election— the idea being that doing something like executing a search warrant, or indicting someone, three months before an election places that person under a cloud of suspicion without time to clear their name (a similar rationale given by Special Counsel Robert S. Mueller III when he chose not to make a determination on whether Trump should be charged for obstruction of justice). But hello, that ship has sailed here: Trump was indicted almost a year and a half ago — and, in any case, Judge Tanya Chutkan isn’t bound by an internal policy of a completely different branch.

It may well be that some of these details coming to light six weeks before the election is inconvenient to Trump. But the bottom line is that there isn’t anything that new in this filing that wasn’t already exposed by either the January 6 Committee hearings or, frankly, the events of January 6 itself. Accusing a special counsel of having political motives based on nothing but the timing of a court filing is irresponsible, especially at a time when the rule of law is being eroded and delegitimized. That, in my opinion, is a “cheap shot.”

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Anyway, I look forward to unpacking this all in the next pod with Renato. In the meantime, we took a look at two non-Trump cases that highlighted how our politics — at every level — are increasingly vulnerable to foreign influence. And more countries are getting in on the game:

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Articles worth reading:

• As usual, Just Security has saved the day by creating an annotated version of Smith’s filings that helpfully fills in the blanks with the names of the co-conspirators. Enjoy!

Upcoming events:

• NEW! Wine & Fries Club Workshop: INTEL BRIEF: Who Wants Your Data and Why, Sunday, October 27, 8 p.m. EDT. In light of the seemingly endless parade of DOJ indictments against rogue actors for foreign influence in our political and electoral system, I will be offering founding members a chance to hear my talk that uses the U.S. Intelligence Community’s current Annual Threat Assessment to explain in lay terms how our foreign adversaries and use cybertools – including theft, espionage, and hybrid warfare – to facilitate their geopolitical objectives. I recently gave this talk to the Yale community at the invitation of our IT department and one attendee wrote to say it was “the most interesting talk I have attended at Yale.” (!) Zoom link will be sent to founding members three hours prior to the talk and will be recorded and posted after. (NOTE: I may need to reschedule this to another time or day as I am in the process of trying to work out the timing of another commitment — but I will send an email to W&F subscribers with any updates.)

• NEW! Guest Speaker Renee DiResta, author of Invisible Rulers: The People Who Turn Lies Into Reality (TBA, late October). I have been waiting for someone to unpack how social media and algorithms distort our marketplace of ideas, and am thrilled that Renee has agreed to be a guest speaker for our class! This will dovetail with our upcoming module on Social Media and the Media Ecosystem, where we will look at how social media and “propaganda feedback loops” like Fox News have upended some of the basic underpinnings of our democracy. A Zoom link will be sent to paid subscribers three hours before the talk and will be recorded and posted after.

• Freedom Academy Book Club with Yale Professor Jason Stanley, author of Erasing History: How Fascists Rewrite the Past to Control the Future, November 3, 8 p.m. EST. I’m soooooo excited that my friend and colleague Jason Stanley will be joining us to discuss his new book, which was released just last week! We’ll have this book discussion right before the election, to remind us what’s at stake. The Freedom Academy Book Club discussions are open to all paid subscribers and recordings of the talks are posted afterwards in case you can’t make it live.

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers.

I’ll be in Bali, Indonesia for a conference next week (for real, it’s a legit conference), so I can’t guarantee that I will have a full round up. But even if I don’t, I promise to send a view from the beach!

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I’ve been busy this Friday night perusing the indictment against three Iranian nationals for their hack-and-leak operation to influence the 2024 election. For those who have been in my Substack course for a while, we covered this old playbook in Class 19. (If you just joined the course, it’s worth checking out that post for context!) The comparison with what Russia did in 2016 offers a few big takeaways:

1. Iran is learning the ways of the dark side (obviously) and learning from their geopolitical Darth Vader, Russia. We kind of take hack and leaks as a given nowadays, but it’s worth remembering that it was such a new tactic in 2016 that it caught our own intelligence community flat-footed — we were used to foreign adversaries stealing data, but not weaponizing it. Given that it worked so well for Russia in 2016, it’s not surprising that other countries are getting into the game: After all, dumping hacked info doesn’t require any particular proficiency in imitating Americans, etc. (something that Iran tried to do in 2020, when it sent threatening emails to Democratic voters in Florida, purporting to be from the Proud Boys…but were quickly exposed). So in terms of barriers to entry, this tactic is relatively low hanging fruit for our adversaries.

2. The fact that news organizations didn’t bite on the leaked information this time around shows that we are getting better, too! The reason Russia was so successful in 2016 was that they believed that news outlets would be so tempted by salacious insider info on the Clinton campaign/DNC that leaking it could quickly hijack news coverage away from both the joint DHS/ODNI/FBI statement that Russia was attempting to influence the 2016 election, and the leak of the Access Hollywood tape. (I know it’s hard to believe that all of this happened in the same day, just hours apart, but it did.) Russia was right: News coverage immediately pivoted to cover the leaked emails — — a great example of the Russian disinformation tactic of reflexive control. By contrast, major news outlets have not touched the Iranian hacked data — which includes insider information from the Trump campaign. This is good, in my opinion, because it hopefully further disincentivizes such attempts in the future.

3. You might be wondering what the point is in bringing this indictment. After all, all of the defendants are in Iran. And the indictment doesn’t allege anything particularly shocking — Iranian hackers got the data they were seeking through pretty basic spearphishing and social engineering techniques. (If you want more detail on what that means, I recommend the book and book talk with Scott Shapiro that I did for the Freedom Academy Book Club.) It’s true that the U.S. government are unlikely to ever bring the hackers they indicted to justice. But as I have often repeated in my disinformation course, the way to neutralize an influence operation is to expose it. In particular, a big goal of these indictments is to strip these foreign actors of any plausible deniability (something this indictment does to great effect by including photos and addresses of the hackers, heh heh). The DOJ is getting much better at this, a trend that started with Mueller’s indictment of the Russian companies and nationals who interfered in 2016 and most recently included its indictment for a sophisticated covert operation involving right-wing social media influencers. The U.S. government is sending a message to Iran (and the Rogue State Club): We know who you are, and we will name, shame, and doxx you. Go DOJ!

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I know the Iranian indictment came on the heels of other foreign influence charges against New York Mayor Eric Adams, but you’ll have to stay tuned for the next podcast to hear more about that. In the meantime, Renato and I break down some of the potential issues in the charges against P. Diddy, as well as the “Terrorgram” indictment, (which I will be writing about in more detail for Cafe Insider this coming week):

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Articles worth reading:

• I have not yet watched Rachel Maddow/MSNBC’s latest documentary, “From Russia with Lev,” but the bits I have been hearing seem to echo some themes I wrote with Ryan Goodman in a two-part article for Just Security back in 2020 about Russian influence in Congress and with American journalists. I mean, as long as we’re talking about foreign influence and all.

Upcoming events:

• NEW! Wine & Fries Club Workshop: INTEL BRIEF: Who Wants Your Data and Why, Sunday, October 27, 8 p.m. EDT. In light of the seemingly endless parade of DOJ indictments against rogue actors for foreign influence in our political and electoral system, I will be offering founding members a chance to hear my talk that uses the U.S. Intelligence Community’s current Annual Threat Assessment to explain in lay terms how our foreign adversaries and use cybertools – including theft, espionage, and hybrid warfare – to facilitate their geopolitical objectives. I recently gave this talk to the Yale community at the invitation of our IT department and one attendee wrote to say it was “the most interesting talk I have attended at Yale.” (!) Zoom link will be sent to founding members three hours prior to the talk and will be recorded and posted after.

• NEW! Guest Speaker Renee DiResta, author of Invisible Rulers: The People Who Turn Lies Into Reality (TBA, late October). I have been waiting for someone to unpack how social media and algorithms distort our marketplace of ideas, and am thrilled that Renee has agreed to be a guest speaker for our class! This will dovetail with our upcoming module on Social Media and the Media Ecosystem, where we will look at how social media and “propaganda feedback loops” like Fox News have upended some of the basic underpinnings of our democracy. A Zoom link will be sent to paid subscribers three hours before the talk and will be recorded and posted after.

• Freedom Academy Book Club with Yale Professor Jason Stanley, author of Erasing History: How Fascists Rewrite the Past to Control the Future, Date/Time TBA (early November). I’m soooooo excited that my friend and colleague Jason Stanley will be joining us to discuss his new book, which was released just last week! We’ll have this book discussion right before the election, to remind us what’s at stake. The Freedom Academy Book Club discussions are open to all paid subscribers and recordings of the talks are posted afterwards in case you can’t make it live.

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers.

Meanwhile, my son is in India on a gap year and wrote to me to ask for “cute” pictures of Pancake because apparently the people he is traveling with don’t think Pancake is cute. ??? BLASPHEMY. I would love confirmation that Pancake is cute because that made me really sad. :(

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Back in the Peach State, however, things are not so fine. Yesterday, the three Trump-aligned members on the Georgia state election board voted to require that all ballots cast on Election Day be hand-counted. Yes, you read that right. What that means is that not only will precincts be unable to report totals in a timely manner, but that ballots will be handled by a bunch of people before the totals are officially recorded. According to The Guardian:

One of the primary concerns from elections directors is about how the change in procedure would create a chain-of-custody problem in voting centers. Currently, precinct officials never touch a cast ballot. After a voter completes a ballot by touchscreen, their ballot is printed and then the voter places it in a tabulator which scans it and deposits it into a sealed box.

The rule change would have poll workers unseal that box, count ballots by hand and then return ballots to a container to be sealed again. The process introduces the potential for counting errors that would delay a count. State law – which legislators changed in 2021 – requires counties to have a complete tabulation by 11.59 on election day.

I mean, what could go wrong? As Renato and I discussed in this week’s podcast, this is only one of the many rules that the Trump-majority has proposed (and now passed), including one requiring that would allow local board members to initiate a “reasonable inquiry” into voting (no criteria is provided for what would justify such an inquiry), setting the stage for questions to be raised about voting results before they are even in. The hand counting of ballots plays into this ambiguity, since experts note that hand tabulation is less accurate and reliable than machines. Oh, and just as an aside, one of these election board members attended a Trump rally recently and got a shout out from Trump. So good times.

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The one ray of hope is pending litigation over these rules, and whether the election board exceeded its statutory authority in adopting them. Georgia’s attorney general believes they do, so it’s possible that they won’t be in effect by Election Day…though I suppose that might turn on how high these issues end up going on appeal, if you catch my drift. Renato and I discuss these possibilities…but first we look at what the heck is going on the Georgia RICO case and whether it even matters anymore:

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Articles worth reading:

• Some interesting analysis following the explosion of dozens of pagers in Lebanon last week — it turns out that there are international laws about booby traps. This NPR piece gives a good overview and you can take a look at the many law of war questions raised by the covert operation in Just Security

Upcoming events:

• Zoom Office Hours, Friday, September 27, 9-10 a.m. We’ll discuss the latest. Zoom link will be sent three hours before the discussion. This will not be recorded.

• Freedom Academy Book Club with Yale Professor Jason Stanley, author of Erasing History: How Fascists Rewrite the Past to Control the Future, Date/Time TBA (late October/early November). I’m soooooo excited that my friend and colleague Jason Stanley will be joining us to discuss his new book, which was released just last week! We’ll have this book discussion right before the election, to remind us what’s at stake. The Freedom Academy Book Club discussions are open to all paid subscribers and recordings of the talks are posted afterwards in case you can’t make it live.

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers.

For the flight home, I’m about to crack open The Burning: Massacre, Destruction, and the Tulsa Race Riot of 1921 by Tim Madigan. I’m sad that I don’t know more about this history and never learned about it in school. Never too late to catch up.

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Although Harris mopped the floor with Trump, victory in November is going to be an uphill battle. This is partly because of possible issues on the domestic front — including MAGA loyalists who have been placed in state electoral positions, like Georgia’s State Election Board. These folks have the power to potentially muck up or cast doubt on election outcomes, which would set the stage for Trump claiming that any Harris victory is “rigged.” (To be clear, he is going to do that regardless, but having third parties suggesting that there are “voter irregularities” provides the kind of legitimizing propaganda Trump tried to create in the 2020 election with his attempted shakedown of President Zelensky in 2019 and his phone call to Georgia Secretary of State Brad Raffensperger in January 2021.)

On the foreign front, there is no doubt that Trump will receive an assist from his pal Pooty in the Kremlin. Just yesterday, the State Department issued a global advisory, alerting the public that Russia’s overt propaganda arm, RT, possesses cyber capabilities and is engaged in covert information and influence operations and military procurement activities. According to the notice, RT has been attempting to covertly influence elections in Moldova and is also active in Africa, Europe, and Latin America.

The State Department is external facing, so it didn’t mention U.S. elections, but the Justice Department secured convictions last week in its prosecution of four U.S. citizens acting as agents of Russia who were involved in influencing a local Florida election, which I wrote about here. And as I wrote about in last week’s round up, DOJ issued an indictment against two RT employees who were part of a complex social media influence campaign here in the U.S. ahead of the election. These cases suggest that there is much more Russia has in mind for November…I will not be surprised if we see more operations exposed in the coming month and a half.

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I did a deeper dive into RT’s U.S. content creation operation for ’s Substack — the paywall for that post will be removed on Wednesday, if you are not a paid subscriber and want to check it out. (I’ll link back to it in next week’s round up.) In the meantime, Renato and I discussed whether the influencers in that case were really “victims” in this past week’s pod:

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Articles worth reading:

• I have a new class lesson coming up that will explain why the immigrant pet eating hoax persists, despite being fact checked to death, but in the meantime, this NBC piece tracing how the rumor got started is worth a read

Upcoming events:

• Zoom Office Hours, Friday, September 27, 9-10 a.m. We’ll discuss the latest. Zoom link will be sent three hours before the discussion. This will not be recorded.

• Freedom Academy Book Club with Yale Professor Jason Stanley, author of Erasing History: How Fascists Rewrite the Past to Control the Future, Date/Time TBA (late October/early November). I’m soooooo excited that my friend and colleague Jason Stanley will be joining us to discuss his new book, which was released just last week! We’ll have this book discussion right before the election, to remind us what’s at stake. The Freedom Academy Book Club discussions are open to all paid subscribers and recordings of the talks are posted afterwards in case you can’t make it live.

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers.

  Not sure what the weather is like where you are, but it’s gorgeous here and I’m going to enjoy it while it lasts — have a wonderful weekend!

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There was a lot of Trump news — appeals in his E. Jean Carroll case, some movement in the January 6 case, the delay of his sentencing in the Manhattan case — but what I have been focused on is the indictment of Konstiantin Kalashnikov and Elena Afanasyeva, two Russian nationals and RT employees who were directing and controlling the editorial content of a U.S.-based media company — since revealed to be Tenet Media — on behalf of Russia in an attempt to influence voters before the 2024 U.S. presidential election. The company employed two producers and six right-wing media influencers who pushed out videos and other content advancing Russia’s talking points, making significant profits (to the tune of several million dollars a year) in the process.

The indictment, which you can read here, reveals a complex structure, and definitely an escalation compared to previous Russian election interference efforts. My Substack course on disinformation focuses on Russia’s goals and tactics (it’s never too late to enroll!), and I’ve removed the paywall of a few of my relevant posts related to Russian election interference in previous years if you want to check them out. In Class 20 we looked at how the Internet Research Agency deployed social media trolls before the 2016 election (and I drilled down in Class 23 on how this impacted Black voters the most). In Class 22 we looked at Russia’s Project Lakhta, an influence operation before the 2018 midterms, which seeded narratives like support for a “civil war” in America. And in Class 25 I offered my report card on how well we are doing heading into this year’s presidential election.

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As the report card notes, we’re getting better at countering Russian (and other countries’) influence operations. But, Russia is learning too, as the below diagram — which I spent all morning making — indicates. Russia has now gone from simply having fake accounts and trolls online to actually funding a content creation company and bringing domestic U.S. influencers onto its payroll. At least based on the indictment, the influencers (Commentators 1-6), who have since been revealed to include right-wing You Tube stars like Tim Poole and Benny Johnson, were duped and/or failed to perform basic due diligence on the source of their funds. The media company’s founders, Lauren Chen and her husband, Liam Donovan (Founders 1 & 2), were apparently witting participants in the scheme but haven’t been charged — suggesting that they have been cooperating with prosecutors behind the scenes (former prosecutor Andrew Weismann noted on Twitter/X that he believed they were charged a while ago, under seal, and then flipped). Separately, the Justice Department also seized 32 internet domains being used by Russia to impersonate legitimate U.S. news outlets, like The Washington Post, to dupe American audience.

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The Russian defendants have been charged with conspiracy to commit money laundering and conspiracy to violate the Foreign Agent Registration Act (FARA). The money laundering charge stems from the fact that Russia funneled close to $10 million into the media company using a series of shell companies to conceal the source. And regarding FARA, because the media company was receiving about 90% of its funding from a foreign principal — Russia — and was under the direction and control of Russian state-controlled individuals, it is considered a foreign agent under U.S. law. Still, it’s notable that DOJ took this step because in general, the U.S. is loathe to go after media and journalists, even if they are in violation of FARA, because that can itself be propagandized and weaponized by foreign regimes as constituting “censorship".” (I wrote more about FARA, and what we can and can’t do to counter propaganda, in Class 3.)

I’ll be unpacking more about the mechanics of this scheme for next week (I’ll republish that on my Substack the following week), so stay tuned! I’ll also be discussing it with Renato in our upcoming pod. And speaking of the podcast, we have switched distributors and our new episodes will be dropping on Mondays, rather than Fridays. Which means that the You Tube version that I include in my round up will be a few days old, as is this one, in which we discussed some of the latest moves by Special Counsel Jack Smith:

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NEW! Freedom Academy Book Club Selection:

I’m soooooo excited that my friend and colleague, Yale Professor Jason Stanley, will join The Freedom Academy to discuss his latest book, Erasing History: How Fascists Rewrite the Past to Control the Future (which will be released on September 10)! For those who have been in my Substack course, you know that I often refer to Professor Stanley’s last book, How Fascism Works: The Politics of Us and Them (which is a MUST READ). We’ll have this book discussion right before the election, to remind us what’s at stake — so you have plenty of time to order and read before then. The Freedom Academy Book Club discussions are open to all paid subscribers and recordings of the talks are posted after in case you can’t make it live!

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My articles this week:

I won’t be including my CAFE Notes in my round ups anymore since I am co-publishing them directly on this Substack! Go to the archives to catch the last two.

• Though I wrote this one a while ago, here is a Just Security piece I wrote about Russian election interference in local elections and how they represent an evolution in their tactics

Noteworthy clips this week:

A couple of clips on the wrangling in the courts about President Biden’s second attempt at addressing student loan debt, and the copyright bench slap against Trump for using unlicensed music at his rallies:

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Upcoming events:

• Zoom Office Hours, Friday, September 27, 9-10 a.m. We’ll discuss the latest. Zoom link will be sent three hours before the discussion. This will not be recorded.

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers.

  I’ll be getting more speakers lined up for this fall, so stay tuned!

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Upcoming events:

• NEW! Wine & Fries with special guest Wajahat Ali, Sunday, August 11 at 8 p.m. EDT. It’s the Desi Duo! We’ll scoop on Kamala, Usha, Nikki, and everything else going on. Link will be sent to Wine & Fries subscribers at 5 p.m.

• Guest Speaker Andy Norman, author of Mental Immunity: Infectious Ideas, Mind Parasites, and the Search for a Better Way to Think, Tuesday, August 13, 12-1 p.m. EDT. We’ll be discussing the psychology of disinformation over the next few weeks in the Substack class, Democracy in the (Dis)Information Age (it’s a great time to jump in, especially if you want to learn how you’ll be manipulated by foreign and domestic propaganda as we approach the election!). Andy will explain how we can develop “cognitive immunity” and become more resilient to attempts to hack our brains. Paid subscribers will receive a Zoom link three hours before the talk. This talk will be recorded and posted for those who can’t attend live.

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers.

  Enjoy the rest of the summer!

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We were hoping that Norm would be the happy panda for this week’s episode. It didn’t quite turn out that way…give it a listen:

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My articles this week:

• I wrote about why asymmetrical polarization makes it almost impossible to create a neutral principle for regulating social media content for CAFE Insider

Upcoming events:

• NEW! On July 23 from 11 a.m. to 5 p.m., I will be part of an amazing lineup of speakers for a conference at NYU entitled Autocracy in America — A Warning and a Response sponsored by State Democracy Defenders Action, Principles First, and Democracy Forward. The event is open to the public and tickets are $25. I hope you will come and learn how we can come together and fight two swing the pendulum back towards our democratic values!

• Zoom Office Hours, Wednesday, July 24, 10-11 a.m. We’ll discuss the latest. Zoom link will be sent three hours before the discussion. This will not be recorded.

• Guest Speaker Andy Norman, author of Mental Immunity: Infectious Ideas, Mind Parasites, and the Search for a Better Way to Think, Tuesday, August 13, 12-1 p.m. EDT. We’ll be discussing the psychology of disinformation over the next few weeks in the Substack class, Democracy in the (Dis)Information Age (it’s a great time to jump in, especially if you want to learn how you’ll be manipulated by foreign and domestic propaganda as we approach the election!). Andy will explain how we can develop “cognitive immunity” and become more resilient to attempts to hack our brains. Paid subscribers will receive a Zoom link three hours before the talk. This talk will be recorded and posted for those who can’t attend live.

  The Freedom Academy is a reader-supported publication. If you enjoy my work, I hope you will consider becoming a paid subscriber, which will give you access to the online course, “Democracy in the (Dis)Information Age,” interactive discussions, and guest speakers.

  I’ll be back in two weeks with the next round up!

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Last came Anarchy: he rode
On a white horse, splashed with blood;
He was pale even to the lips,
Like Death in the Apocalypse.

And he wore a kingly crown;
And in his grasp a sceptre shone;
On his brow this mark I saw –
‘I AM GOD, AND KING, AND LAW!’

Percy Bysshe Shelley, The Masque of Anarchy, VIII-IX

I promised in my immediate hot take after the Trump immunity decision was handed down that I would offer some more detailed thoughts once I had a chance to parse the opinion. All I can say that it is even worse than even what I initially thought at first blush. That’s because there are so many implications written between the lines that fundamentally alter the balance of power among the branches, not only making the President effectively a king, but making the Court’s conservative majority the kingmakers who rubber stamp or veto what kinds of actions get immunity (thereby ensuring that any potential dictator is symbiotically dependent on the Court to preserve his facade of legitimacy).

To explain this, let’s look at how the Court framed the issue, which is determining whether an action is “official” or “unofficial.” To the Court, this is the dividing line that determines immunity, which the Court places on a spectrum from “absolute” to “presumptive” to “no” immunity. I made a helpful flowchart that illustrates the way that the Court sees how the determination of official vs. unofficial conduct should be made, and how those determinations impact the type of immunity that results.

What you might notice if you follow the lines above carefully is that the question of motive — the reason that an action was taken — doesn’t even enter the equation until after the determination of whether the actions was official or unofficial has been made. Indeed, the Court explicitly states that “In dividing official from unofficial conduct, courts may not inquire into the President’s motives.”

This is an astonishing statement, because it effectively means that it does not matter if a President uses the official levers of power with corrupt intent, for personal gain, or as retribution. In other words, the Court engages a sleight of hand where a critical distinction between lawful and unlawful conduct — the heart of criminal law, which rests on whether a person acted with a specific state of mind, or mens rea — ceases to exist when it comes to the President. Once this distinction is erased, the office of the presidency is basically a get out of jail free card, enabling the President to do pretty much anything that could plausibly be characterized as “official.” Take a look at this table:

In other words, the Court has created immunity for the one category of actions where it actually matters — unlawful official acts — everything else that is left either would have never been prosecuted anyway or was always fair game.

Further, the determination of whether an action is official if left in the hands of the courts. But conveniently, the Court has offered lower courts so little guidance on how to apply its little rubric that it has ensured that the majority will be the final umpire on this question. It’s hard not to imagine that the lines will be drawn depending on which party occupies the Oval Office.

Understanding the above, here are a few big takeaways from the opinion:

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The President Can Obstruct Justice

It seems like it’s been a given at least since Nixon that a President isn’t allowed to obstruct justice, and can be investigated and prosecuted for doing so. In fact, when Trump fired FBI Director James Comey, prompting the appointment of Special Counsel Mueller, he opened an investigation into obstruction of justice separate and apart from the investigation into contacts between Trump’s campaign and Russia related to the 2016 election. The entire second volume of the Mueller Report was an analysis of ten potential counts of obstruction of justice, which Mueller noted in a footnote could be prosecuted after Trump left office (though there were crickets on this once Merrick Garland became the attorney general and we never heard about it again).

What the Court has done in the immunity case is read out the word “faithfully” from the Take Care Clause, which reads, “he shall take Care that the Laws be faithfully executed” (U.S. Const. Art. II. Sec. 3, emphasis mine). Importantly, the Court considers the Take Care Clause as being a “core, exclusive, and preclusive authority” (see chart above), and therefore any acts taken pursuant to it is untouchable by any criminal laws passed by Congress. That means is so-called “process crimes” — crimes prohibiting obstruction, witness tampering, forging evidence, etc. — no longer apply to the President, provided he uses his own Justice Department or other executive branch officials to engage in them.

For the record, I think this is legally wrong. In creating these crimes, Congress was giving effect to the word “faithfully” when those statutes are applied to the President, i.e., he has to act in good faith, not corruptly. In fact, I would argue (and have) that under its Art. I power to create lower courts and to enact laws “necessary and proper” for bringing into effect its own powers, Congress has every constitutional authority to protect the integrity of the justice system. (And, just as a matter of constitutional interpretation, the Constitution is supposed to be read to give every word meaning and effect — we assume that the Framers did not include words carelessly or to render them superfluous.) Obviously, the Court disagrees.

In short, the Court implicitly reads the Take Care Clause as imposing no constraint on how the laws should be enforced, meaning that as long as the President uses his Attorney General or other “official” subordinates to obstruct justice or otherwise thwart the administration of justice, or commit any other crimes, he is untouchable.

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The Court Sees the “Real” Problem as Sham, Politically-Motivated Prosecutions…Except When They are Actual Sham, Politically-Motivated Prosecutions

I’ve been hearing a refrain from the MAGA right that “the Court didn’t do anything new, it just stated how it has always been for the last 200 years.” I have seen this claim repeated on social media so many times that I can only conclude that Hannity or Breitbart has put it into circulation. In any event, it is, not surprisingly, untrue.

The immunity question was, at best, an unsettled area of law — and to the extent that limited precedent existed it pointed in the opposite direction. (I highly doubt Nixon would have stepped down, or needed a pardon, if it was so clear that he enjoyed immunity.) In fact, the case which Trump was trying to extrapolate from, Nixon v. Fitzgerald, which established absolute immunity from civil liability for acts in the “outer perimeter” of a President’s official duties, counseled in the opposite direction when it comes to criminal liability. That’s because while every person has a private cause of action for civil suits, which could potentially open the floodgates of endless litigation if everyone who claimed to be harmed by the President could sue him. By contrast, the power to bring criminal cases is not only centralized in relatively few government prosecutors, but is limited by their ability to overcome evidentiary and procedural hurdles in charging and proving a case.

Writing for the Court, however, Justice Roberts thinks these due process protections aren’t enough to protect a former president. Apparently, not providing immunity would suddenly open the floodgates of prosecution (though the Court does not explain why this has never been a problem before now). This fiction can only be maintained, however, if you think that the motive for an action is irrelevant to whether an action can properly be considered official or not official. If you think that the intent matters, most ordinary criminal laws don’t even reach what we would consider lawful presidential acts. For example, in her partial dissent Justice Amy Coney Barrett notes that statutes prohibiting “unlawful” killings would not include military or law enforcement actions taken to protect U.S. interests, like if the president ordered a hostage rescue mission and some people got killed. (This public authority exception is also why the oft-cited argument that without immunity Obama could be prosecuted for ordering a drone strike against Anwar al-Awlaki is so dumb, and incorrect.)

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In other words, absent evidence of a corrupt motive, prosecutors wouldn’t be incentivized to bring politically-motivated prosecutions because they simply wouldn’t be able to prove a case against a former president for executing his actual official duties, or even have probable cause to indict him. (Barrett notes that Presidents also get a benefit that most other defendants don’t enjoy, which is that they can challenge the constitutionality of a statute as applied to them before trial, allowing meritless charges to be thrown out from the get-go.)

You might be thinking, “But doesn’t this protect President Joe Biden, if Trump wins in November?” After all, what’s good for the goose is good for the gander: Some commentators have interpreted the Court as imagining Trump as President, rather than as a defendant, and that the opinion prevents him from going after his predecessors if he retakes office.

The problem is that they have done the exact opposite. Because, as noted above, all official acts are completely shielded from any kind of investigation or review, a President can now use his Justice Department to bring false charges against former presidents for “unofficial” acts, and even fabricate evidence to do so. Indeed, the one act, and piece of evidence, which the Court explicitly took off the table in Jack Smith’s January 6 case was Trump’s orders to Acting Attorney General to Jeffrey Clark to send a letter to Georgia officials containing false allegations of voter fraud. That was an attempt at a sham investigation, based on fabricated allegations. That is now an official act, folks.

All I can say is that if Trump wins the presidency, you can 100% expect so-called “evidence” about the Bidens and Burisma or some other conspiracy to surface very soon after he takes office, and for indictments to ensue. And under the Court’s reasoning, there would be nothing to stop him from doing that, nor would its reasoning protect President Biden.

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The Court Believes in a Unitary Executive, But Only When a Republican is President

The weirdest aspect of the Court’s opinion is that it claims to be grounded in separation of powers principles. It’s ironic considering the facts of this case, which involve a President trying to prevent the executive power from vesting in a newly- and duly-elected successor. After all, die-hard “unitary executive” adherents — who believe in expansive, and almost limitless executive power — point to the Vesting Clause, which states that “all executive power shall vest in a President of the United States,” as the constitutional source of that theory.

This irony highlights the internal contradiction of the Court’s reasoning. By placing a President’s “official acts” beyond Congress’ legislation and even courts’ ability to review, the Court is not keeping the government in balance, but significantly aggrandizing the Executive Branch at the expense of the other branches. Considering the majority, however, this isn’t so surprising: They are all big proponents of the unitary executive theory.

But here’s where it’s weird: At the same time the Court claims this BIG IMPORTANT AND UNTOUCHABLE executive power, it has no issue with curbing the current executive branch, which happens to be headed by a Democrat, from exercising the full breadth of its authority to enforce the laws. In other words, within this supposedly “unitary” executive power, the Court has created a carve out where a sitting president has no power vis a vis a very small category of people: former presidents. Hmmm.

Again, it might seem that on its face, this carve out doesn’t favor a president of one party over another. And if we were living in a vacuum of faceless Democrats and Republicans who were relatively the same distance from either side of the political center, that might be true. But we are talking about Trump, and Biden (or whoever ends up being the nominee), and two parties which are asymmetrically polarized, with the Republican Party veering off to the extreme far right. Which means we are talking about one prospective president who has every intention of weaponizing the government against his enemies (and has been very clear about that) and one who isn’t.

So think about it: Although President Biden theoretically has the power to order Seal Team Six to assassinate Trump today, if he wanted to, we all know he won’t. And precisely because we know he won’t, he doesn’t need the kind of immunity that the Court created. (And, as noted above, isn’t protected by it in the case of a bad faith successor.) By contrast, the one person who has and will use the powers for corrupt, criminal, and self-interested ends while in office is Trump. And the one person who needs immunity while out of office is Trump.

In short, the Court conveniently places a bad faith former president out of the reach of a good faith sitting president, which in our current political landscape benefits one party when in office and constrains the other. Some unitary executive.

The worst part of this case is that it becomes obvious that there was a moderate position that the justices could have taken that would have achieved the majority’s purported goals. The Court could have simply said that any official act — even one in the outer perimeter of the president’s duties — has presumptive immunity. That presumption can be rebutted if the government shows that the action was taken with a corrupt motive or for personal gain. That would have discouraged politically motivated prosecutions, reinforced the rule of law, and helped protect the executive branch. It also would have preserved the difference between lawful and unlawful acts.

Instead, the Court has decided it will not only protect, but enable, the one class of actions that actually should be deterred, criminalized, and prosecuted. And it does so knowing that we are on the brink of authoritarianism. God help us.

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