Friday Round Up! 11/8/24

We're about to go through some things.

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.

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.

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.

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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.

*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 Taylor Lorenz’s User Mag 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.

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: