Please enjoy a curated snapshot of our "Virtual Route 66" walkabout in our World this past week:
After news broke yesterday that President Joe Biden’s lawyers had found a second batch of documents in his home in Wilmington, Delaware, Attorney General Merrick Garland today appointed Robert Hur as special counsel to investigate Biden’s handling of classified documents. After law school, Hur clerked for Chief Justice William Rehnquist and then served as special assistant to Christopher Wray—then an assistant attorney general, now FBI director—before being appointed by former president Trump as the U.S. attorney in Maryland. Since he left office in February 2021, he has been in private practice.
Accepting the post, Hur said: “I will conduct the assigned investigation with fair, impartial, and dispassionate judgment. I intend to follow the facts swiftly and thoroughly, without fear or favor, and will honor the trust placed in me to perform this service.”
The appointment of a special counsel seemed inevitable considering what Garland called “extraordinary circumstances”—likely a reference to the fact that former president Trump is being criminally investigated for his own handling of documents marked classified—and it serves to reinforce the idea that the Department of Justice treats everyone the same. This is a good thing.
But it presents a problem for MAGA Republicans. Unable to attack Biden for having documents marked classified in his possession without also faulting Trump, Republicans have tried to suggest that Biden was being treated differently than Trump is. The appointment of a special counsel undermines that. It also takes away from House Republicans the publicity they could get by investigating the issue themselves. House Speaker Kevin McCarthy said this morning that he did not “think there needs to be a special prosecutor,” and that Congress should conduct its own investigation.
This evening, Republicans appear to have settled on the talking point that Hur is tainted by his time at the Department of Justice under Wray—although Wray was appointed to the FBI directorship by Trump—and that his appointment is further evidence of the “political weaponization” of the FBI and the Justice Department.
(Just to be clear: people writing about these cases keep referring to “documents marked classified” rather than “classified documents” because classification status can change, as Trump argued when he said he had declassified the materials found in his possession despite their markings. It’s awkward phrasing, I know, but it marks an important distinction.)
So far, anyway, Biden’s possession of documents marked classified appears very different from Trump’s. Biden’s team offered up to the National Archives and Records Administration (NARA) the information that Biden had documents in his possession, has apparently been zealous about searching for them, and is apparently cooperating with the Justice Department.
Here’s the story Garland laid out today: On November 2, Biden’s lawyers found a batch of documents from the time of the Obama-Biden administration when they were cleaning out Biden’s office at the Penn Biden Center for Diplomacy and Global Engagement, the Washington, D.C., think tank where Biden worked after his time as vice president. They immediately contacted NARA, which took possession of the documents the next morning. On November 4, NARA’s inspector general contacted the Justice Department to notify it of the document exchange, and on November 9 the FBI began to assess whether Biden had illegally mishandled classified information.
According to journalist Matthew Miller, classified documents often get taken from government facilities by accident. Those errors are reported, the documents recovered, and a damage assessment made to determine whether further action needs to be taken, all of which took place here.
On November 14, Garland assigned U.S. Attorney John Lausch, a Trump appointee, to consider whether Garland should appoint a special counsel. Meanwhile, Biden’s team had continued to search for more documents, and on December 20, Biden’s lawyer told Lausch they had found more documents with classification markings at Biden’s Wilmington home. On January 5, Lausch told Garland he thought it was a good idea to appoint a special counsel.
Finally, on January 12, Biden’s lawyer told Lausch that Biden’s lawyers had found one more document, apparently in his personal library, but that a thorough review had turned up nothing else. This afternoon, the White House counsel said: “We have cooperated closely with the Justice Department throughout its review, and we will continue that cooperation with the Special Counsel.”
While there is still a great deal we don’t know about either case, there are obvious and key differences between Biden’s and Trump’s handling of documents.
In Trump’s case, NARA repeatedly asked him simply to return the documents it knew he had. He refused for a year, then let NARA staff recover 15 boxes that included documents marked classified, withholding others. After a subpoena, his lawyers turned over more documents and signed an affidavit saying that was all of them. But of course it wasn’t: the FBI’s August search of Mar-a-Lago recovered still more documents marked classified. Even now, none of Trump’s lawyers will certify that they have turned over all the documents they are required to.
Trump is apparently being investigated for obstruction and for violations of the Espionage Act, which makes it a crime to withhold documents from a government official authorized to take them.
On his social media network today, Trump wrote: “Merrick Garland has to immediately end Special Counsel investigation into anything related to me because I did everything right, and appoint a Special Counsel to investigate Joe Biden who hates Biden as much as Jack Smith hates me.” In a different post, he called Smith an “unfair savage.”
Garland’s appointment of Special Counsel Jack Smith came only after Trump declared he was running for president in 2024, an announcement Trump likely made because he thought it would shield him from potential indictments. But news is coming daily that Smith’s subpoenas have been far ranging and widely spread, and that those who have testified before the grand jury found the questioning “intense.”
Meanwhile, arguments began today in the trial of five Proud Boys for their actions associated with the events of January 6, 2021. This is the third trial for seditious conspiracy associated with those events. Nine indicted Oath Keepers had to be broken into two groups because there was no courtroom in Washington, D.C., big enough for all of them. In the first Oath Keepers trial, a jury found five of the defendants guilty of various crimes, and two of them guilty of seditious conspiracy. The second Oath Keepers trial is going on right now.
The Proud Boys defendants are charged with a variety of charges, including seditious conspiracy, conspiracy to obstruct an official proceeding, obstruction of an official proceeding, and conspiracy to prevent federal officers from performing their duties.
Roger Parloff of Lawfare, a legal correspondent who is covering the January 6 cases closely, writes that this trial “could well be the most important and informative of all.” The Justice Department today argued that the Proud Boys led the attack on the Capitol, while defense attorneys in turn argued that their clients were being used as “scapegoats” for Trump. “He is the one who unleashed that mob at the Capitol on January 6,” the lawyer for Proud Boys leader Enrique Tarrio said.
Sorry for the extended holiday break. It got stretched out a bit. After downing some Coronas on the beach in Playa Vallarta, the ‘rona struck back and downed me for a week after Xmas (a light case but not really that much fun). Add to that a frayed lead on my defibrillator that unnecessarily hit me with a couple of whopper shocks, and a ripped bicep tendon to boot. I’ve spent more time in ER’s in the last month to last a lifetime. But I am tanned, relaxed and ready to serve. I’m headed to Chile tomorrow for 3 weeks where I will be reporting for a couple of big packages to be published on Truthdig. I will be doing this newsletter though without interruption).
By Marc Cooper
January 11, 2023
The Brazilian insurrection of January 8 had all those obvious similarities with the siege incited by Donald Trump on the now infamous January 6. But there are also some stark and important differences.
For one, Brazilian law enforcement smashed the takeover of government buildings by arresting more than 500 people on the spot. Another 1000 were detained in the next few hours as police shut down a large camp of the insurrectionists and stopped some 50 buses of partisans that were skedded to spread the disorder throughout the provinces. President Lula da Silva also vowed he would immediately go after those who had organized and paid for the rally.
That’s a stark difference with Merrick Garland’s DOJ who apparently did next to nothing about the January 6 masterminds until it was more or less forced upon them last summer by the Jan 6 committee. And six months later, a full two years after the Capitol siege, there have still been no arrests or indictments of the top tier of January 6 conspirators and promoters.
I don’t know what’s going to happen in Brazil but I guarantee you it is not going to take Lula two years to round up the perps. He was persecuted and jailed by the former Brazilian dictatorship that was replaced with a vibrant multi-party democracy in 1985.
Another big difference. A crucial one. President Lula, head of the 5th biggest democracy in the world, and with his own impeccable democratic credentials, correctly labeled the violent mob as “vandals, neo-fascists and fanatics” who were openly calling for a military coup
Here we call the insurrectionists, especially the more respectable looking ones, something very different. You know, like The Honorable Rep. Andy Biggs who gave a fiery talk on January 6 while wearing body armor. Or The Honorable Representatives Kevin McCarthy, Jim Jordan and Rep. Scott Perry – all of whom were referred by the Jan 6 committee for criminal investigation by the DOJ. And all of whom are now key figures in the radical House regime for the moment headed by McCarthy.
Let’s be straight about this. Take the marbles out of your mouth and the cotton out of your ears and face the stark reality. The Republican Party of today is almost entirely a political front group for a subversive and insurrectional movement that nobody dares name. The party is illiberal. Anti-democratic. Pro-violence. And riddled with Nihilists and fascist-adjacent figures whose only goal is to discredit and wreck our democratic institutions while boring holes in the administrative state. While it has a quite different political position, the party plays the same role vis a vis fascist activists that, say, Sinn Fein played in the relation to the IRA. The Republicans are deploying what the Left calls a “streets and suites”” strategy where the bare knuckled alley fighters are given political oxygen and support from their allies dressed in bespoke suits in Congress.
Watching the marathon voting last week that consolidated McCarthy’s role and boosted and promoted some of the more diseased members around him, I reached two conclusions: We have experienced a massive failure of law enforcement. I’m not talking only about January 6 itself, but the two years that have passed that should have seen half or more of these jokers already indicted instead of sitting on new House committees. Attorney General Garland might eventually absolve himself, but he frickin’ better hurry up. There’s no excuse for Garland running behind the Jan 6 committee and the Fulton County Prosecutor where the investigation into Trump’s election tampering has already wrapped and could soon result in arrest warrants.
There is also an ongoing failure of the elite media. I don’t think there has ever been a week where an event was so exquisitely reported in such rich detail as McCarthy’s Four Days in Hell but that totally failed to transmit the overall importance of the event. The NYTimes, and the big networks, along with their cable outlets, just could not work up the courage to describe the congressional conflict for what it really was. I had to laugh a few days ago when I saw in the Times the use of the word “moderate” to describe the pro-McCarthy faction a full ten times in its lead pieces on one single day. Really?
McCarthy, who single-handedly revived Trump’s career a few weeks after Jan 6? Or McCarthy, who profusely thanked Trump from the podium last Friday night? McCarthy who is the most right wing speaker in modern history? McCarthy who has been referred to the DOJ for failure to comply with a subpoena from the Jan 6 Committee he first tried to sabotage and discredit? McCarthy who did everything he could to appease his more rambunctious opponents. His pathetic on-camera pleading after the 14th round with a smirking Matt Gaetz? I would not be surprised if Kevin had promised to fellate Gaetz right there and then though the Florida congressman apparently prefers more juvenile partners.
I do not want to engage in rhetorical overkill, but there is no moderate wing of the GOP anymore. It has been decimated over the last 15 years and delivered the coup de grace by the MAGGATS of the last six years. In the House you can find about 15 GOP reps from pro-Biden districts who are, theoretically, vulnerable which is not the same as moderate. In the quest for sheer survival these folks might, I repeat might, pact with Democrats to pas must-pass bills but that’s about it. They total up to less than 10% of the delegation. Compare this pallid number with that of the extremist Freedom Caucus who totals 53 members (or ¼) of the GOP House ranks. Also note that less than half of the certified crazies of the FC joined Gaetz and Company in originally blocking McCarthy. The majority, however, lined up as boosters of the new speaker, perhaps not having agreed with the Times that McCarthy was a moderate!
There are still something like 130 Republican members of the House who refused to certify Joe Biden’s election on the evening of January 6-7, including McCarthy. And the overwhelming majority of them remained McCarthy supporters.
Over in the Senate, about 1/3 of the Republicans have shown willingness to vote with Dems on such easy packages as the infrastructure deal. That leaves 2/3 of Senate Republicans as firm allies of the rogue House. And it means that Mitch McConnell alone must be the “Republican Establishment” to which the media so often refers.
Nor could the Times or the networks figure out exactly what to call the Gaetz faction. “ Conservatives… ultraconservatives…far right…hard right”… and even the wholly preposterous label of “rebels.” Apart from that last ridiculous term, all the other descriptors perfectly fit the McCarthy side much more neatly than “moderates.”
Those moderates have so far failed to appear in opposition to McCarthy’s rules package that cements in a number of outrageous, anti-democratic positions aimed only at fouling up government operations. They also failed to appear early this week when the House, on a party line vote, passed an absurd bill to defund the IRS and abolish the income tax. It’s a measure that will go nowhere in the Senate, but you think maybe a few of these Republican mooks might have objected and scuttled the bill. Where are they?
The American media plain refuses to accept the fact that we have a robust proto-fascist movement in the country, tinged with racism, xenophobia and world-class Know Nothingism and that the GOP, the official GOP, the establishment GOP is adjunct to that movement and has zero interest in solving any of the myriad problems we face.
What we saw last week was nothing but a factional fight for individual power wholly within an insurrectionary party. Period. It was former extreme right winger now turned Never Trumper John Walsh who argued last year that “it doesn’t matter who the next speaker is” because whoever it is will have to appease the more radical factions because that is the trend line in the Party. I might add that after the mid-terms it really did not matter because the paper thin GOP majority would dictate that the fringe, as Kingmaker, would have the most leverage.
I have very mixed feelings about the immediate future. I am appalled by the ability of the coup-plotters of January 6 to ascend to the vanguard of the Republican Party. I also think the creation of a special subcommittee to “investigate the investigators” headed up by neanderthal Jim Jordan, and whose real goal is to discredit the FBI and the DOJ while running interference against the probes into Trump and his co-conspirators is perhaps the most dangerous aspect of the McCarthy House. Its creation and mission sets up a nasty coming conflict between Congress and Justice that ain’t gonna be pretty.
On the other hand, you can call me naïve but I firmly believe the current GOP strategy is far from viable. It cannot hold. The broader electorate solidly rejected what is now the core Republican Party platform of 24/7 Culture War, as that is the only plank upon which the party officially stands.
In spite of all the chest thumping and foreboding warnings now being emitted from the GOP, the House will not be able to pass a single piece of legislation over the next two years as it is saddled with a Democratic Senate and White House. You can go ahead and stamp all the proposed bills on immigration, “wokeness,” crime and whatever issuing forth from the Speaker’s desk as DOA.
The real test, as we all now know, will be the crucial “must-pass” bills like military appropriation, funding of the government and that ill-named Debt Ceiling (raising the ceiling is done to pay bills already accrued and does not authorize in itself new spending). McCarthy’s “moderates” and Gaetz “rebels” are all uniformly dead set in using these bills as a weapon to shut the government.
I believe as that vote emerges later in the year, deeper into the 2024 cycle and with a former Pres. Trump possibly indicted, there will likely be a handful of Republican reps with queasy stomachs who are going to refuse to die on Trump Hill and will cross over to vote with Democrats. I certainly hope so.
That is going to depend on us, the people, to make it clear that no politician is safe if they cater to extremism and fascism and voting rationally, and thereby incurring the wrath of the rest of the party, is still preferable to self-immolation.
I think Over Reach is the most likely Achilles Heel in the new MAGA congress.
Talk to you next week. From Santiago, Chile. ++
In many ways, Sunday’s riot by supporters of Brazil’s former president Jair Bolsonaro in the capital city of Brasília mirrors the Jan. 6, 2021, attack on the US Capitol. But although both efforts failed to thwart the peaceful transition of power, they played out very differently: Unlike in Washington, there were no deaths attributed to the protests in Brasilia.
Perhaps it was because Bolsonaro wasn’t on site to egg on his supporters — as former US President Donald Trump had been — but art historian Adrian Anagnost argues that the modernist design of Brasília’s government campus helped stymie the attack. The city’s grand Monumental Axis is “an otherworldly landscape of red earth, open grass and enormous roadways,” a space so vast and alienating that “its proportions can render political action strangely inert,” Anagnost writes. Meanwhile, the fantastical concrete curves of architect Oscar Niemeyer’s work “reject human intervention.” Today on CityLab: When Modernism Met the Mob in Brasília
— Linda Poon