Republicans’ takeaways from Smith’s testimony were, at best, tangential to furthering their claims of weaponization. The main one concerned the House select committee on January 6th, which conducted a separate, public investigation. Cassidy Hutchinson, a former aide to the White House chief of staff Mark Meadows, was the star witness, testifying in the summer of 2022 that Trump had lunged for the wheel of the Presidential limousine and demanded to be taken to the Capitol. But Smith described Hutchinson as “a second- or even third-hand witness,” and said that her account had been contradicted by someone who was present. “The partisan January 6th Committee’s ENTIRE case was just destroyed by . . . Jack Smith,” Republican members of the House Judiciary Committee posted on X. “Star witness completely unreliable!” A gotcha, perhaps, but of Democrats on the committee, not of Smith, who comes off as a careful prosecutor, mindful of courtroom limits on the use of hearsay.
The conventional wisdom about the criminal cases that were brought against Trump after his first term—four in total—has become that they were politically harmful to Democrats and legally unwise. That seems half right. Certainly, the onslaught of cases against the once and future President contributed to a sense of partisan piling on. But the indictments that Smith’s office secured were the strongest of the lot, and Smith’s testimony illustrated their importance. Others may have second thoughts about the wisdom of pursuing Trump. Not Smith. “If asked whether to prosecute a former President based on the same facts today,” he said, “I would do so regardless of whether that President was a Republican or a Democrat.”
Meanwhile, the Trump Administration’s allegation that Biden weaponized the Justice Department grows more surreal by the day. The Republican counsel opened his questioning of Smith by taking him through the elements of Justice Robert Jackson’s famous speech, as Attorney General in 1940, about the tremendous power of the federal prosecutor, to “pick people that he thinks he should get, rather than pick cases that need to be prosecuted.” The counsel asked, “Do you agree with that?,” and you could see where this might be heading—an indignant account of vindictive prosecution.
But it was Trump who ordered the failed indictments of the New York attorney general Letitia James (three tries, no less) and the former F.B.I. director James Comey, and who fired prosecutors who refused to comply with his instructions. Susie Wiles, Trump’s own chief of staff, has acknowledged, “I don’t think he wakes up thinking about retribution. But when there’s an opportunity, he will go for it.” In late December, Attorney General Pam Bondi commented on an active grand-jury investigation into government weaponization during the Biden and Obama Administrations, claiming that there was “a ten-year stain on the country committed by high-ranking officials” and that one of the investigation’s subjects, the former C.I.A. director John Brennan, was among the “bad actors.” This is hardly the Jacksonian vision of prosecutors with “sensitiveness to fair play and sportsmanship.”
Perhaps the most maddening aspect of the Smith deposition was that he was effectively barred from commenting on the stronger of his cases, the classified-documents prosecution. Smith ended his cases after Trump’s reëlection; later, Smith submitted reports describing them, as required under Justice Department regulations. But, in January of 2025, the Trump-appointed judge overseeing the classified documents case, Aileen Cannon, blocked Smith’s report from becoming public, on the basis that charges were still pending against two co-defendants, the Trump aide Walt Nauta and the Mar-a-Lago property manager Carlos De Oliveira. The Trump Administration then moved to drop the cases against them. But Cannon dawdled in ruling on whether the report should be unsealed, leading an appeals court to chide her in November for “undue delay.”
An hour before Smith’s testimony, his attorney Peter Koski said at the deposition, the Justice Department informed Smith by e-mail that Cannon’s order meant he was barred from discussing any information contained in the report. Asked about why Trump refused to return the documents despite repeated requests, and about why he took them in the first place, Smith demurred. “Given the current state of the injunction, I don’t think that’s a question I can answer,” he said. A few days after the deposition, Cannon finally ruled that her order sealing the document would expire in February—at which point she could agree to release the report. Even if Cannon were to allow it, though, the final decision would fall to Bondi. Special-counsel reports have been routinely released, but don’t count on Cannon or Bondi to follow suit. The definitive account of the documents’ case could easily remain hidden from public view.
Smith’s deposition was, in all likelihood, as close as he will get to making a closing argument. It marks, most likely, the unsatisfying conclusion of an unsatisfying episode, one that underscored the limitations of the criminal-justice system in dealing with a lawless President. Now, with Trump calling Smith a “criminal” who should be “investigated and put in prison,” one question is the jeopardy that Smith himself may face. “I am eyes wide open that this President will seek retribution against me if he can,” Smith said at one point in the deposition. Still, he said, of his testimony before the committee, “I came here. I was asked to come here.” ♦
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First impressions stick. After a big story hits, the initial conclusions can turn out to be wrong, or partly wrong, but the revisions are not what people remember. They remember the headlines in imposing font, the solemn tone from a presenter, the avalanche of ironic summaries on social media. Political operatives know this, and it’s that indelible impression they want, one that sticks like a greasy fingerprint and that no number of follow-ups or awkward corrections could possibly wipe away.
Five years ago, a partisan political operative with the credibility of a long career in government service misled the public about official documents in order to get Donald Trump the positive spin he wanted in the press. The play worked so well that a special counsel appointed to examine President Joe Biden’s handling of classified documents, Robert Hur, ran it again.
In 2019, then–Attorney General Bill Barr—who would later resign amid Trump’s attempts to suborn the Justice Department into backing his effort to seize power after losing reelection—announced that Special Counsel Robert Mueller had not found sufficient evidence to indict Trump on allegations that he had assisted in a Russian effort to sway the 2016 election and had obstructed an investigation into that effort. Mueller’s investigation led to indictments of several Trump associates, but he later testified that Justice Department policy barred prosecuting a sitting president, and so indicting Trump was not an option. Barr’s summary—which suggested that Trump had been absolved of any crimes—was so misleading that it drew a rebuke not only from Mueller himself but from a federal judge in a public-records lawsuit over material related to the investigation. That judge, Reggie Walton, wrote in 2020 that the discrepancies “cause the court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller report in favor of President Trump despite certain findings in the redacted version of the Mueller report to the contrary.”
As my colleague David Graham wrote at the time, the ploy worked. Trump claimed “total exoneration,” and mainstream outlets blared his innocence in towering headlines. Only later did the public learn that Mueller’s report had found “no criminal conspiracy but considerable links between Donald Trump’s campaign and Russia, and strongly suggested that Trump had obstructed justice.”
Now this same pattern has emerged once again, only instead of working in the president’s favor, it has undermined him. Hur, a former U.S. attorney in the Trump administration, was appointed by Attorney General Merrick Garland to investigate Biden for potential criminal wrongdoing after classified documents were found at his home. (Trump has been indicted on charges that he deliberately mishandled classified documents after storing such documents at his home in Florida and deliberately showing them off to visitors as “highly confidential” and “secret information.”)
In Hur’s own summary of his investigation, he concluded that “no criminal charges are warranted in this matter,” even absent DOJ policy barring prosecution of a sitting president. But that part was not what caught the media’s attention. Rather it was Hur’s characterization of Biden as having memory problems, validating conservative attacks on the president as too old to do the job. The transcripts of Hur’s interviews with Biden, released yesterday by House Democrats, suggest that characterization—politically convenient for Republicans and the Trump campaign—was misleading.
Sparking alarming headlines about Biden’s mental faculties, Hur had written that Biden “would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory” and “diminished faculties in advancing age.” As with Barr’s, that conclusion set off a media frenzy in which many mainstream outlets strongly reinforced conservative propaganda that Biden was mentally unfit to serve, a narrative that reverberated until the president’s animated delivery of the State of the Union address last week.
In press coverage following the report, Hur’s phrase was frequently shortened to an “elderly man with a poor memory,” turning the evaluation of a potential legal strategy into something akin to a medical diagnosis. A cacophony of mainstream-media coverage questioning Biden’s age and fitness followed, while conservative politicians and media figures outright declared Biden incapacitated and demanded he be removed from office according to the Twenty-Fifth Amendment, which provides for succession in case a president is “unable to discharge his duties.”
The transcripts of Hur’s interviews with Biden illuminate Hur’s summary as uncharitable at best. As a report in The Washington Post noted, “Biden doesn’t come across as being as absent-minded as Hur has made him out to be.”
Hur wrote that Biden “did not remember, even within several years, when his son Beau died.” Yet the transcript shows Biden remembering the exact day, May 30, after which staffers offer the year—2015—and Biden says, “Was it 2015 he had died?” In another exchange Hur singled out as indicative of Biden’s poor memory, he said Biden mischaracterized the point of view of an Obama-administration official who had opposed a surge of combat troops to the war in Afghanistan, but left out that Biden correctly stated the official’s views in an exchange later that day. The transcript also shows Biden struggling with other dates while answering questions about when he obtained certain documents or in the interval between the Obama and Biden administrations, when he decided to run for president. But as The New York Times reported, “In both instances, Mr. Biden said the wrong year but appeared to recognize that he had misspoken and immediately stopped to seek clarity and orient himself.”
The transcript does not completely refute Hur’s description of Biden’s memory, but it is entirely incompatible with the conservative refrain that Biden has “age-related dementia.” Indeed, both Barr and Hur framed their conclusions with a telltale lawyerly touch that would push the media and the public toward a far broader conclusion about Trump’s supposed innocence or Biden’s alleged decline while allowing them to deny that they had been so explicit.
There’s no question that both Biden and Trump are much older than they used to be. To watch clips of either of them from 20 years ago is to recognize a significant difference. But the transcript shows Biden exactly as he appeared in the State of the Union last week, as someone who has lost a step or two as he’s aged but is fully capable of grasping the politics and policy implications demanded by the presidency. “Mr. Biden went into great detail about many matters, the transcript shows,” the Times reported. “He made jokes over the two days, teasing the prosecutors. And at certain points, he corrected his interrogators when they were the ones who misspoke.” During an exchange about Biden’s home, Hur remarked that Biden had a “photographic understanding and recall of the house,” a remark Hur acknowledged in yesterday’s testimony before the House that he had left out of his original report.
People with serious cognitive decline do not simply have verbal flubs or memory lapses of the sort both campaigns are constantly highlighting on social media. They avoid asking questions they fear might betray their loss of memory; they struggle to recollect the season, the time of day, the state they are currently in. They awkwardly attempt to hide their inability to recall recently relayed information in ways that simply underline its absence. They repeat innocuous statements that they do not realize they made minutes earlier. They pretend to know people they’ve never met and fail to recognize people they’ve known for decades. The late Democratic Senator Dianne Feinstein of California, the clearest recent example of this in politics, was reported to have had incidents such as a meeting at which lawmakers had to “reintroduce themselves to Feinstein multiple times during an interaction that lasted several hours,” as the San Francisco Chronicle reported in 2022.
During his testimony before the House, Hur insisted that “partisan politics had no place whatsoever in my work.” He tried to have it both ways, insisting that his report was accurate while refuting the most uncharitable right-wing characterizations of Biden’s memory. But as legal experts pointed out after the report was released, Hur’s description of Biden’s memory was not a necessary element of his duties, and it is unlikely that someone with as much experience in Washington as Hur would be so naive as to not understand how those phrases would be used politically.
Yet Hur’s report is itself something of a self-inflicted wound for Democrats, a predictable result of their efforts to rebut bad-faith criticism from partisan actors by going out of their way to seem nonpartisan. The age story caught fire in the press, not only because of genuine voter concern over Biden’s age but because this is the sort of superficially nonideological criticism that some reporters feel comfortable repeating in their own words, believing that it illustrates their lack of partisanship to conservative sources and audiences. Coverage of the Hillary Clinton email investigation reached saturation levels in 2016 for similar reasons.
There are more parallels between those stories. Then-President Barack Obama appointed James Comey, a Republican, to run the FBI, in an effort to illustrate his commitment to bipartisanship; Attorney General Garland’s decision to appoint Hur probably had similar intentions. Comey, like Hur, declined to press charges but then broke protocol. In Comey’s case, he did so by first holding a press conference in which he criticized Clinton, and later, during the final days of the presidential campaign, announcing that he was reopening the investigation into Clinton while keeping the bureau’s investigation into Trump a secret. A 2017 analysis published by FiveThirtyEight makes a compelling argument that the latter decision threw a close election to Trump.
For reasons that remain unclear to me, Democrats seem to have internalized the Republican insistence that only Republicans are capable of the fairness and objectivity necessary to investigate or enforce the law. Any lifelong Republican who fails to put partisanship above their duties is instantly and retroactively turned into a left-wing operative by the conservative media. Acting to prevent complaints of bias (as opposed to actually being fair) is ultimately futile: Comey’s last-minute gift to the Trump campaign didn’t prevent Trump from smearing him as a liberal stooge.
These efforts to work the refs pay off. Right-wing criticism of Obama probably influenced him to pick a grandstanding Republican to head the FBI, an agency that has never been run by a Democrat, just as it likely influenced Garland to pick a grandstanding Republican to investigate Biden. Conservative criticism of the mainstream press leads too many journalists to attempt to prove they aren’t liberals, which results in wholesale amplification of right-wing propaganda to deflect criticisms that the media aren’t objective; the facts become a secondary concern.
Fairness, objectivity, and due process are important values, but there is a difference between upholding them and seeking to convince everyone that that’s what you’re doing. Performatively pursuing the latter can easily come at the expense of the former. If you try too hard to convince people you are doing the right thing instead of just doing the right thing, you often end up doing the wrong thing.
Special counsel David Weiss has charged an FBI confidential source who provided derogatory information about President Joe Biden and his son Hunter Biden to the bureau with felony false statement and obstruction charges.
Weiss charged Alexander Smirnov, 43, with one count of making a false statement and one count of creating a false and fictitious record related to statements he made to the FBI on a document known as an FBI Form 1023.
Charging documents show Smirnov was a confidential source for the FBI and provided “false derogatory information about [President Biden] and [Hunter Biden] … in 2020, after [Biden] became a presidential candidate.”
Smirnov allegedly reported to an FBI agent in March 2017 that he had a phone call with the owner of Burisma, a Ukrainian energy company, and noted Hunter Biden was at the time a member of Burisma’s board.
Three years later, Smirnov allegedly made false statements in recounting two meetings in 2015 or 2016 in which executives associated with Burisma told him they had hired Hunter Biden to “protect us, through his dad, from all kinds of problems.” He further said the executives paid $5 million each to Hunter Biden and President Biden while Biden was in office as vice president, so that Hunter “will take care of all those issues through his dad,” referring to the then-criminal investigation being conducted by the then-Ukrainian prosecutor general into Burisma.
Those events were fabrications, Weiss alleged in his new indictment. Instead, Smirnov had only contacted the Burisma executives in 2017 after the end of Biden’s time as vice president and after the Ukrainian prosecutor general had already been fired, according to the indictment.
“The indictment alleges that the [Smirnov] transformed his routine and unextraordinary business contacts with Burisma in 2017 and later into bribery allegations against [President Biden] after expressing bias against [Biden] and his presidential candidacy,” Weiss’ office said in their statement announcing the charges.
Smirnov was again interviewed by FBI agents in September 2023, the indictment says, and he repeated earlier false claims and also changed his story to promote “a new false narrative after he said he met with Russian officials.”
Smirnov was arrested at Harry Reid International Airport in Las Vegas on Wednesday after arriving to the U.S. from overseas, the Department of Justice said. He was schedule to make his initial appearance Thursday.
If convicted, he faces a maximum penalty of 25 years in prison.
This is a developing story. Please check back for updates.
Despite Hur not bringing criminal charges, his report levied what amounted to a political indictment against the 81-year-old president, with investigators writing that a main reason for not pursuing charges was because “Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory.”
Biden clapped back in a hastily-scheduled news conference Thursday night, just hours after the report was released, telling reporters, “I’m well-meaning, and I’m an elderly man, and I know what the hell I’m doing.”
Full speech: President Biden responds Thursday night to the special counsel’s report on his mishandling of classified documents.
The president’s top surrogates, from Vice President Kamala Harris to congressional Democrats, kept pushing back on Friday, dismissing the special counsel’s report as “politically motivated” and “inappropriate.”
The Biden campaign declined to comment when asked how it’s trying to quell renewed concerns about the president’s age.
A source familiar with the campaign’s thinking told ABC News that Republicans attacking the president’s age is nothing new, saying that strategy didn’t work in 2020 and won’t work in 2024, when the source said voters value experience and wisdom as well.
Here are five ways Biden allies are striking back:
Hur is a Trump appointee and Republican
Biden surrogates have been quick to point out that Robert Hur, a Republican, was appointed by former President Donald Trump to be U.S. Attorney in Maryland in 2018. However, it was Attorney General Merrick Garland, a Biden-appointee, who chose Hur to lead the investigation into Biden’s handling of classified documents.
Some are now accusing Hur of having an agenda despite not having enough evidence to criminally indict Biden.
“At the end of the day, it looks as though the special counsel couldn’t charge him with anything, so he just threw the books at him anyway,” said former Democratic National Committee Chair Donna Brazile, an ABC News contributor. “The report read like it was going to get published in the New York Post or on Trump campaign website. It did not read like a legal document.”
Rep. Dan Goldman, D-N.Y., in an interview with ABC News on Thursday, called the report’s descriptions of Biden “partisan editorializing by a Republican-appointed prosecutor.”
“This is a Republican special counsel who completely went out of his way to editorialize, to include material in his report that is unnecessary and irrelevant to what he was tasked with doing,” Goldman said, of Hur. “The fact that he’s a Republican and he’s exonerating President Biden, he knows he’s going to be under attack because Republicans want to create this false equivalency between President Biden and former President Trump.”
Illinois Democratic Gov. J.B. Pritzker, at an unrelated news conference on Friday, deemed the comments by Hur “unfair” and “unnecessary,” also noting he was a Republican appointee.
Governor JB Pritzker and other Democrats defended President Joe Biden Friday after the DOJ’s classified documents report commented on his memory.
“I smell a rat in the comments that were made,” he told reporters.
Hur had no comment.
Doesn’t compare to Trump’s classified docs case
Biden aides and allies say the bottom line is that while the investigation into Trump’s handling of classified documents ended with charges, Biden fully cooperated, and Hur decided there wasn’t enough evidence to charge him.
Juxtapose that, they say, to Trump’s case, in which he’s charged with obstructing efforts to secure the documents.
Jim Messina, former President Barack Obama’s reelection campaign manager, urged his social media followers not to equate a “heavily editorialized special counsel’s report” as a bigger liability than the 91 criminal charges pending against Trump. (Trump has denied all wrongdoing).
“Hur, a lifelong Republican and creature of DC, didn’t have a case against Biden, but he knew exactly how his swipes could hurt Biden politically,” Messina said in a post.
“We’ve got to stop treating a single line in a gratuitously long, heavily editorialized special counsel’s report–in which no crime was found btw–by a partisan Republican investigator like it’s a bigger liability than Trump’s 91 criminal charges and being found liable for rape,” he said in another.
Lauren Glassberg has the latest.
Rep. Jim Himes, D-Conn., the ranking Democrat on the House Intelligence Committee, also highlighted on social media Friday the differences between Trump and Biden’s respective investigations.
“Read the documents. It’s not hard. Biden fully cooperated. Trump obstructed at every turn,” he said in a post. “They know this. And they know how damaging their arguments are to Americans’ confidence in their democracy.”
While Trump’s popularity among Republican voters has risen with each criminal indictment, according to his national polling average on 538, Biden’s mishandling of documents might not be as easily accepted by his base.
There’s also a gap when it comes to perceptions of Trump, 77, and Biden, 81. A recent NBC News poll found 62% of voters have “major concerns” about Biden’s age whereas only 34% have “major concerns” about Trump’s age.
The special counsel has no business making ‘gratuitous’ statements
“Gratuitous” is swiftly becoming a buzzword for Democrats to describe the language they take issue with in Hur’s report.
“The way that the president’s demeanor in that report was characterized, could not be more wrong on the facts and clearly, politically motivated, gratuitous,” said Vice President Kamala Harris, a former federal prosecutor. “When it comes to the role and responsibility of a prosecutor in a situation like that, we should expect that there will be a higher level of integrity than what we saw,” she added.
The Democratic National Committee War Room on Friday blasted a press email listing nearly a dozen instances of other prosecutors and legal experts questioning whether Hur’s comments on Biden’s memory were appropriate, with the email characterizing them as “political cheap shots that came straight from MAGA Republican talking points.”
Among the voices was former Obama Attorney General Eric Holder, who said in a post on X that the report had “many gratuitous remarks and is flatly inconsistent with long standing DOJ traditions.”
Ian Sams, a spokesperson for the White House counsel’s office, was among the first to characterize Hur’s criticisms of Biden’s memory as “inaccurate, gratuitous and wrong.”
Recounting personal Biden stories about mental agility
Biden allies are also offering first-hand accounts of Biden’s sharpness as they face renewed questions about his mental acuity.
Goldman has recounted in multiple interviews how he spoke with Biden the day before the president’s voluntary interview with the special counsel on Oct. 8, the day after Hamas attacked Israel.
“He was incredibly on point. His recall, his knowledge of a very tricky geopolitical situation was remarkable right off the bat. And he had spoken to a number of leaders, and he knew exactly where the pressure points were,” Goldman said. “And that’s where his age is so beneficial because he has 50 years of foreign policy experience.”
DNC Chair Jaime Harrison also shared his Biden story in a post, moments after the president’s impromptu Thursday night news conference.
“On AF1 I chatted with him on a myriad of topics from politics to family. Saw him bring down the house in SC talking about the promises made and the promises kept!” Harrison assured his followers.
Other Democrats are flatly stating the undeniable truth: Biden is old.
But so, they add, is Trump.
“President Biden and former President Donald Trump have both old, and if that’s the only issue in the 2024 campaign, then the American people will have to judge between two elderly men,” Brazile said. “The president has has acknowledged that he is an elderly man, and he also has acknowledged that he’s still up to doing the work on behalf of the American people. I don’t know what else we can say.”
Special counsel Robert Hur will not charge President Joe Biden for his handling of classified documents while out of office despite willful retention.
The youngest member of Congress, Rep. Maxwell Frost, D-Fla., in a press call for the Biden-Harris campaign on an unrelated topic on Friday, flatly acknowledged Biden “is old” but deflected to the administration’s record, which he said is what Democrats will run on.
“Number one, yes. OK. President Biden is old. OK. Yeah. It doesn’t sound like breaking news to me,” said Frost, who is 27. “When it comes down to how this is gonna impact folks down ballot and how Joe Biden’s candidacy will impact folks down ballot, I see nothing but positivity — because we’re looking at an agenda and we’re looking at a record that is positive.”
Biden isn’t the only one confusing names – so are Trump and Johnson
The report alleging Biden couldn’t recall the years he served as vice president or when his son, Beau, died, followed the president twice this week confusing European leaders with their dead predecessors — instances his allies are dismissing as common mistakes.
“If he had a momentary blip where he couldn’t remember, as his mind is racing from the war in the Middle East to the questions that he’s been asking, I think that’s understandable for any of us,” Goldman told ABC News Live.
After Biden mistakenly called Egypt’s President Abdel Fattah el-Sissi the president of Mexico during his news conference, surrogates were quick to pounce on the fact that Biden isn’t the only big-name politician to recently confuse a name.
Goldman called it “nit-picking” and “inappropriate,” he said, “unless you’re also going to do it with Speaker Mike Johnson or anyone else who makes a mistake.”
Notably, the House speaker confused Iran with Israel last week on NBC’s “Meet the Press” on Sunday, and Trump, at a rally last month, twice mentioned Nikki Haley when he meant Nancy Pelosi. Trump has also repeatedly confused former President Barack Obama with Biden at recent rallies.
A special counsel report released Thursday found evidence that President Joe Biden willfully retained and shared highly classified information when he was a private citizen, including about military and foreign policy in Afghanistan, but concluded that criminal charges were not warranted.
The report from special counsel Robert Hur resolves a criminal investigation that had shadowed Biden’s presidency for the last year. But its bitingly critical assessment of his handling of sensitive government records and unflattering characterizations of his memory will spark fresh questions about his competency and age that cut at voters’ most deep-seated concerns about his candidacy for re-election.
Beyond that, the harsh findings will almost certainly blunt his ability to forcefully condemn Donald Trump, Biden’s likely opponent in November’s presidential election, over a criminal indictment charging the former president with illegally hoarding classified records at his Mar-a-Lago estate in Florida. Despite abundant differences between the cases, Trump immediately seized on the special counsel report to portray himself as a victim of a “two-tiered system of justice.”
Yet even as Hur found evidence that Biden willfully held onto and shared with a ghostwriter highly classified information, the special counsel devoted much of his report to explaining why he did not believe the evidence met the standard for criminal charges, including a high probability that the Justice Department would not be able to prove Biden’s intent beyond a reasonable doubt, citing among other things an advanced age that they said made him forgetful and the possibility of “innocent explanations” for the records that they could not refute.
In remarks at the White House, Biden denied Hur’s assertion that he shared classified information, saying, “I did not share classified information. I did not share it with my ghostwriter.”
He also angrily lashed out at the special counsel for questioning his recollection of his late son Beau’s death from cancer. “How in the hell dare he raise that?” Biden asked, saying he didn’t believe it was any of Hur’s business.
And in response to Hur’s portrayal of him, Biden insisted to reporters that “My memory is fine,” and said he believes he remains the most qualified person to serve as president.
Biden’s lawyers blasted the report for what they said were inaccuracies and gratuitous swipes at the president. In a statement, Biden said he was “pleased” Hur had “reached the conclusion I believed all along they would reach – that there would be no charges brought in this case and the matter is now closed.”
He pointedly noted that he had sat for five hours of in-person interviews in the immediate aftermath of Hamas’s October attack on Israel, when “I was in the middle of handling an international crisis.”
“I just believed that’s what I owed the American people so they could know no charges would be brought and the matter closed,” Biden said.
According to the report, the special counsel “uncovered evidence that President Biden willfully retained and disclosed classified information after his vice presidency when he was a private citizen. These materials included (1) marked classified documents about military and foreign policy in Afghanistan, and (2) notebooks containing Mr. Biden’s handwritten entries about issues of national security and foreign policy implicating sensitive intelligence sources and methods.
The materials were found in “the garage, offices, and basement den in Mr. Biden’s Wilmington, Delaware home,” the report said.
Read the full report below:
Still, Hur’s office felt that the “evidence does not establish Mr. Biden’s guilt beyond a reasonable doubt.”
Notably, Hur believed that at trial Biden could come across not only as “sympathetic,” but forgetful and not capable of the willfulness required to convict.
“We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory,” the report said. “It would be difficult to convince a jury that they should convict him — by then a former president well into his eighties — of a serious felony that requires a mental state of willfulness.”
Garage box and storage closet of President Joe Biden’s garage taken on Dec. 21, 2022, in a photo released by the Department of Justice.
Department of Justice.
Attorneys for Biden blasted the special counsel’s characterization of the president’s memory and recollections during his two-day interview with investigators in October.
“We do not believe that the report’s treatment of President Biden’s memory is accurate or appropriate,” wrote Richard Sauber, special counsel to the president, and Bob Bauer, a personal attorney for the president. “In fact, there is ample evidence from your interview that the President did well in answering your questions about years-old events over the course of five hours.”
The attorneys noted that the interviews took place in the midst of the Oct. 7 attack on Israel, when Biden was busy “conducting calls with heads of state, Cabinet members, members of Congress, and meeting repeatedly with his national security team.”
“It is hardly fair to concede that the President would be asked about events years in the past, press him to give his ”best” recollections, and then fault him for his limited memory,” they wrote.
Biden, speaking Thursday afternoon in Virginia, noted the differences between his case and Trump’s, and how the special counsel in his probe had decided not to press charges.
“This matter is now closed,” Biden said.
Hur’s report said investigators found documents marked classified from as far back as the 1970s, including a box labeled “International Travel 1973-1979” containing materials from Biden’s trips to Asia and Europe that included “roughly a dozen marked classified documents that are currently classified at the Secret level.”
Interior of President Joe Biden’s garage storage closet containing Senate documents, Jan. 20, 2023, in a picture released by the Department of Justice.
Department of Justice
According to the report, among the classified documents Biden retained were materials documenting his opposition to the troop surge in Afghanistan, including a classified handwritten memo he sent President Obama over the 2009 Thanksgiving holiday, which FBI agents recovered from Biden’s Delaware home and its garage.
Asked in his interview with investigators about handwriting on a folder containing marked classified documents about Afghanistan, the report said Biden “identified the handwriting as his, but said he recalled nothing about how the folder or its contents got into his garage.”
The report lays out that Biden, in writing his 2007 and 2017 memoirs, worked with a ghostwriter, and in a recorded conversation with the ghostwriter a month after he left office, referenced the 2009 memo — saying that he had “just found all the classified stuff downstairs.”
At that time, Biden was renting a home in Virginia, the report says, and met the ghostwriter there to work on second memoir. He moved out of the Virginia home in 2019 and consolidated his belongings in Delaware, where the report says FBI agents later found the documents marked classified about the Afghanistan troop surge in his garage.
Blue folder labeled “Afghanistan” in a box in President Joe Biden’s garage in a picture released by the Department of Justice.
Department of Justice
As such, the report says “evidence supports the inference,” that when Mr. Biden said the comment in 2017, he “was referring to the same marked classified documents about Afghanistan that FBI agents found in 2022 in his Delaware garage.”
The report also said that Biden “created” his own classified documents via his own handwritten notes in notebooks and notecards, some of which Biden brought home with him and stored in “unsecured locations that were not authorized to store classified information– even though the notebooks.”
The report said Biden used notebooks filled with sensitive materials to write his 2017 memoir, allegedly acknowledging to his ghostwriter that some of the documents he relied on might be classified.
“In writing ‘Promise Me, Dad,’ Mr. Biden relied extensively on the notebooks containing the notes he took during his vice presidency,” said the report. The notebooks contained “notes of meetings Mr. Biden attended as well as entries about his other activities during this period. Many of the meetings related to foreign policy and classified information, including the President’s Daily Brief, National Security Council meetings, and other briefings. Some of these entries remain classified up to the Secret level,” said the report.
Hur’s long-anticipated report was released Thursday, hours after the White House reviewed the document and announced that “in keeping with his commitment to cooperation and transparency,” the president would not assert executive privilege over any portion of the report.
Ian Sams, a spokesperson for the White House counsel’s office, said in a statement that the president’s legal team had completed a review of the report and that “in keeping with his commitment to cooperation and transparency,” the president would not assert executive privilege over any portion of the report.
Attorney General Merrick Garland earlier this week informed key lawmakers that Hur had concluded his investigation, which examined how approximately two dozen classified documents wound up at Biden’s personal home and office.
Attorney General Merrick Garland appears before a House Judiciary Committee hearing on Sept. 20, 2023, on Capitol Hill in Washington.
AP Photo/Jacquelyn Martin
The records in question date back to Biden’s time as vice president, and at least some include “top secret” markings, the highest level of classification.
Garland appointed Hur as special counsel in January of 2023, after aides to the president discovered a batch of ten documents at the Penn-Biden Center in Washington, D.C., where Biden kept an office after his vice presidency.
A second discovery of additional records in the garage of Biden’s Wilmington, Delaware, home precipitated Garland’s decision to assign Hur as special counsel, ABC News reported at the time.
The report stated that “Mr. Biden’s memory was significantly limited, both during his recorded interviews with the ghostwriter in 2017, and in his interview with our office in 2023.”
Investigators interviewed as many as 100 current and former officials, including Secretary of State Antony Blinken, former White House Chief of Staff Ron Klain, and Hunter Biden, the president’s son. In October, Hur’s team spent two days interviewing Biden himself.
ABC News previously reported that sources who were present for some of the interviews, including witnesses, said that authorities had apparently uncovered instances of carelessness from Biden’s vice presidency, but that — based on what was said in the interviews — the improper removal of classified documents from Biden’s office when he left the White House in 2017 seemed to be more likely a mistake than a criminal act.
The White House had emphasized from the beginning that it would cooperate with investigators. Biden himself repeatedly denied any personal wrongdoing and said he was “surprised” to learn of the documents’ existence.
The Hur investigation has played out quietly against the backdrop of special counsel Jack Smith’s inquiry into former President Donald Trump’s handling of classified records, which culminated last year in a 40-count indictment, to which Trump has pleaded not guilty.
Trump has sought to link his circumstances to Biden’s by trying to draw an equivalence between their conduct and calling his prosecution the result of a justice system improperly targeting Republicans.
But records subsequently released by the National Archives indicate that Biden’s legal team cooperated with National Archives officials, whereas federal prosecutors have accused Trump of deliberately withholding records he knew to be classified from investigators with the National Archives and, later, the FBI.
Hur’s report drew that distinction, saying, “Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it.”
“In contrast,” the report said, “Mr. Biden turned in classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations including his homes, sat for a voluntary interview and in other ways cooperated with the investigation.”
If Donald Trump regains the presidency, he will once again become the chief law-enforcement officer of the United States. There may be no American leader less suited to “take Care that the Laws be faithfully executed,” as the Constitution directs the president. But that authority comes with the office, including command of the Justice Department and the FBI.
We know what Trump would like to do with that power, because he’s said so out loud. He is driven by self-interest and revenge, in that order. He wants to squelch the criminal charges now pending against him, and he wants to redeploy federal prosecutors against his enemies, beginning with President Joe Biden. The important question is how much of that agenda he could actually carry out in a second term.
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Trump tried and failed to cross many lines during his time in the White House. He proposed, for example, that the IRS conduct punitive audits of his political antagonists and that Border Patrol officers shoot migrants in the legs. Subordinates talked the former president out of many such schemes or passively resisted them by running out the clock. The whole second volume of Special Counsel Robert Mueller’s report, which documented 10 occasions on which Trump tried to obstruct justice, can be read as a compilation of thwarted directives.
The institutional resistance Trump faced has reinforced his determination to place loyalists in key jobs should he win reelection. One example is Jeffrey Clark, who tried to help Trump overturn the 2020 election. Trump sought to appoint Clark as acting attorney general in early January 2021, but backed off after a mass-resignation threat at the DOJ. People who know him well suggest that he would not let that threat deter him a second time. Trump will also want to fire Christopher Wray, the FBI director, and replace him with someone more pliable. Only tradition, not binding law, prevents the president and his political appointees from issuing orders to the FBI about its investigations.
The top jobs at the DOJ require Senate confirmation, and even a Republican Senate might not confirm an indicted conspirator to overturn an election like Clark for attorney general. Under the Vacancies Reform Act, which regulates temporary appointments, Trump can appoint any currently serving Senate-confirmed official from anywhere in the executive branch as acting attorney general. Of course, all of the officials serving at the beginning of his new term would be holdovers from the Biden administration.
Trump’s allies are searching for loyalists among the Republicans currently serving on several dozen independent boards and commissions, such as the Federal Trade Commission, that have “party balancing” requirements for their appointees. Alternatively, Trump could choose any senior career official in the Justice Department who has served for at least 90 days in a position ranked GS-15 or higher on the federal pay scale—a cohort that includes, for example, senior trial attorneys, division counsels, and section chiefs. As Anne Joseph O’Connell, a Stanford law professor and an expert on the Vacancies Reform Act, reminded me, “This is how we got Matthew Whitaker,” the former attorney general’s chief of staff, as acting attorney general. (Whitaker was widely criticized as unqualified.)
Would some career officials, somewhere among the department’s 115,000 employees, do Trump’s bidding in exchange for an acting appointment? Trump’s team is looking.
Once Trump has installed loyalists in crucial posts, his first priority—an urgent one for a man facing 91 felony charges in four jurisdictions—would be to save himself from conviction and imprisonment.
Of the four indictments against him, two are federal: the Florida case, with charges of unlawful retention of classified documents and obstruction of justice, and the Washington case, which charges Trump with unlawful efforts to overturn the 2020 election. Those will be the easiest for him to dispose of.
To begin with, there is little to stop Trump from firing Special Counsel Jack Smith, who is overseeing both of the federal investigations. Justice Department regulations confer a measure of protection on a special counsel against arbitrary dismissal, but he may be removed for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause.” That last clause is a catchall that Trump could readily invoke.
The regulations state that a special counsel may be fired “only by the personal action of the Attorney General,” but that would not stop Trump either. In the unlikely event that his handpicked attorney general were reluctant, he could fire the attorney general and keep on firing successors until he found one to do his bidding, as Richard Nixon did to get rid of Archibald Cox. Alternatively, Trump could claim—and probably prevail, if it came to a lawsuit—that the president is not bound by Justice Department regulations and can fire the special counsel himself.
Smith’s departure would still leave Trump’s federal criminal charges intact, but no law would prevent Trump from ordering that they be dropped. He could do so even with a trial in progress, right up to the moment before a jury returned a verdict. No legal expert I talked with expressed any doubt that he could get away with this.
Dismissing the charges would require the trial judges’ consent. But even if the judges were to object, Trump would almost certainly win on appeal: The Supreme Court is not likely to let a district judge decide whether or not the Justice Department has to prosecute a case.
Trump will be able to avoid going to prison even if he has already been convicted of federal charges before he is sworn in. Here again, a trial judge is unlikely to order Trump imprisoned, even after sentencing, before he exhausts his appeals. And there is no plausible scenario in which that happens before Inauguration Day.
At any time while Trump’s appeals are pending, his Justice Department may notify the appellate court that the prosecution no longer wishes to support his conviction. This is known as a confession of error on the government’s part; the effect, if the court grants the request, is to vacate a conviction. Under Attorney General Bill Barr, the Trump administration did something to similar effect in a false-statements case against former National Security Adviser Michael Flynn, moving to dismiss the charges after Flynn had pleaded guilty but before his sentencing. (Trump later pardoned Flynn.) According to the relevant rule of criminal procedure, dismissal during prosecution—including on appeal from a conviction—requires “leave of the court,” but it’s highly unlikely that an appellate court would refuse to grant such a motion to dismiss.
Trump might also invoke the pardon power on his own behalf. He has already asserted, as far back as 2018, that “I have the absolute right to PARDON myself.” No president has ever tried this, and whether he can is a contested question among legal scholars. Experts who agree with Trump say the Constitution frames the pardon power as total but for one exception, implicitly blessing all other uses. (The exception is that the president may not pardon an impeachment.) Those who disagree include the Justice Department itself, through its Office of Legal Counsel, which concluded in 1974 that a self-pardon would be invalid under “the fundamental rule that no one may be a judge in his own case.”
But the debate over self-pardons wouldn’t matter much to Trump in practice. If he pardoned himself of all criminal charges, there would be no one with standing to challenge the pardon in court—other than, perhaps, the Justice Department, which would be under Trump’s control.
The Office of Legal Counsel, which makes authoritative interpretations of the law for the executive branch, has twice opined, in 1973 and again in 2000, that “the indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.” That conclusion is binding for federal prosecutors, but state prosecutors are not obliged to follow it.
No one knows what would happen if Fani Willis, the district attorney in Fulton County, Georgia, or Alvin Bragg, the DA in New York, decided to press ahead with their cases against Trump should he regain the presidency. Like so many outlandish questions pertaining to Trump, this one has no judicial precedent, because no sitting president has ever been charged with felony crimes. But legal scholars told me that Trump would have strong arguments, at least, to defer state criminal proceedings against him until he left the White House in 2029. By then, new prosecutors, with new priorities, may have replaced Willis and Bragg.
Trump has named a long list of people as deserving of criminal charges, or execution. Among them are Joe Biden, Mark Milley, James Comey, Andrew McCabe, John Brennan, James Clapper, and Arthur Engoron, the judge in his New York civil fraud case.
If he returns to office, Trump may not even have to order their prosecutions himself. He will be surrounded by allies who know what he wants. One likely DOJ appointee is Mike Davis, a Republican who has substantial government credentials: He was a law clerk for Supreme Court Justice Neil Gorsuch and chief counsel for nominations to Senator Charles Grassley when Grassley chaired the Judiciary Committee.
If Davis were acting attorney general, he said on a right-wing YouTube show, he would “rain hell on Washington.” First, “we’re gonna fire a lot of people in the executive branch, in the deep state.” He would also “indict Joe Biden and Hunter Biden and James Biden and every other scumball, sleazeball Biden.” And “every January 6 defendant is gonna get a pardon.” Trump could not immediately appoint an outsider like Davis attorney general. But he could make him a Justice Department section chief, and then appoint him as acting attorney general after 90 days.
Trump could also appoint—or direct his attorney general to appoint—any lawyer, at any time, as special counsel to the Justice Department, with the authority to bring charges and prosecute a case. Trump might not be able to convict his political enemies of spurious charges, but he could immiserate them with years of investigations and require them to run up millions of dollars in legal fees.
Likewise, if he managed to place sufficiently zealous allies in the Office of Legal Counsel, Trump could obtain legal authority for any number of otherwise lawless transgressions. Vice President Dick Cheney did that in the George W. Bush administration, inducing the OLC to issue opinions that authorized torture and warrantless domestic surveillance. Those opinions were later repudiated, but they guided policy for years. Trump’s history suggests that he might seek comparable legal blessing for the use of lethal force at the southern border, deployment of federal troops against political demonstrators, federal seizure of state voting machines, or deferral of the next election in order to stay in power. He would be limited only by the willingness of Congress, the Supreme Court, and the career civil service to say no.
It occurred to me, as I interviewed government veterans and legal scholars, that they might be blinkered by their own expertise when they try to anticipate what Trump would do. All of the abuses they foresee are based on the ostensibly lawful powers of the president, even if they amount to gross ruptures of legal norms and boundaries. What transgressions could he commit, that is, within the law?
But Trump himself isn’t thinking that way. On Truth Social, in December 2022, he posted that righting a wrong of sufficient “magnitude” (in this case, his fictitious claim of election fraud) “allows for the termination of all rules, regulations, and articles, even those found in the Constitution.”
The “take Care” clause of the Constitution calls for the president to see that laws are carried out faithfully. But what if a court rules against Trump and he simply refuses to comply? It’s not obvious who would—or could—enforce the ruling.
This article appears in the January/February 2024 print edition with the headline “Trump Will Get Away With It.”
A federal grand jury in August indicted Trump on four counts, including conspiracy to defraud the United States, in the January 6 case. Department of Justice (DOJ) special counsel Jack Smith has investigated Trump’s alleged efforts to overturn the election results, including alleged attempts to submit false slates of pro-Trump electors from swing states he lost to the Electoral College. Trump, who is campaigning for the 2024 Republican presidential nomination and is the current frontrunner, maintains his innocence, accusing prosecutors of targeting him for political purposes.
Chutkan, who is overseeing the case, previously put in place a “narrowly tailored” gag order against Trump at the request of prosecutors, who had raised concerns about Trump’s previous comments. Chutkan then temporarily put the gagging order on hold thus giving Trump’s attorneys time to prove why the former president’s comments should not be restricted, The Associated Press reports.
The gag order prohibited Trump from making certain types of statements about Jack Smith’s team or potential witnesses, including any comments that directly targeted court personnel, potential witnesses or the special counsel and his staff.
Newsweek has reached out to Trump’s attorneys via email for comment.
Former US President and 2024 Republican presidential hopeful Donald Trump speaks during a campaign rally at the New England Sports Center in Derry, New Hampshire, October 23, 2023. Judge Tanya Chutkan has reinstated a gag order for Trump amid his 2020 election case. (Photo by Joseph Prezioso / AFP) (Photo by JOSEPH PREZIOSO/AFP via Getty Images)
Chutkan’s ruling on the gag order was posted online to PACER Sunday night, but the order itself was not immediately available, according toThe AP. Newsweek also could not gain access to PACER Sunday night as the system seemed to be experiencing a glitch.
Meanwhile, after Chutkan’s ruling, Trump took to his social media platform Truth Social on Sunday saying, “The Corrupt Biden Administration just took away my First Amendment Right To Free Speech. NOT CONSTITUTIONAL! MAKE AMERICA GREAT AGAIN…”
Victor Shi, a Biden-supporting activist, reacted to the ruling saying on X, formally Twitter, “BREAKING: Judge Tonya Chutkan just lifted the temporary hold she placed on Donald Trump’s gag order, denying Trump of his motion to stay her gag order. It’s a Sunday night & Judge Chutkan is still working. This is great news.”
Former U.S. attorney Andrew Weissmann said on X, “BREAKING -Chutkan lifts the temporary stay of her “gag” order, so it is now back in effect. Trump will likely seek a stay from the appellate court in DC. Trump’s continued attacks during the short interim when there was a stay was relied on by the US in arguing to lift the stay.”
Barbara McQuade, former U.S. attorney, also said on X, “Judge Chutkan is on solid legal ground. She could gag Trump completely if she wanted to. Instead, she has given him wide latitude to criticize Biden, DOJ, and even her. Trump just can’t target parties and witnesses outside of court.”
BREAKING -Chutkan lifts the temporary stay of her “gag” order, so it is now back in effect. Trump will likely seek a stay from the appellate court in DC. Trump’s continued attacks during the short interim when there was a stay was relied on by the US in arguing to lift the stay. https://t.co/t3WREve10V
— Andrew Weissmann (weissmann11 on Threads)🌻 (@AWeissmann_) October 29, 2023
In addition to the 2020 election case, Trump is currently battling an array of other legal issues. The former president is also facing a $250 million civil fraud trial stemming from a lawsuit New York Attorney General Letitia James filed last year alleging that Trump and top executives at The Trump Organization conspired to increase his net worth by billions of dollars on financial statements provided to banks and insurers to make deals and secure loans.
Trump was also indicted for alleged mishandling of classified documents that were recovered from his Mar-a-Lago residence. He has maintained his innocence in all cases.
Uncommon Knowledge
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
When Donald Trump appeared last week in a Washington, D.C., courtroom for his arraignment on federal election charges, the presiding judge gave the former president a few simple instructions for staying out of jail while he awaited trial.
Trump could not talk to potential witnesses about the case except through lawyers, Magistrate Judge Moxila Upadhyaya told him, and he could not commit a crime on the local, state, or federal level. Both are standard directives to defendants. But then Upadhyaya added a warning that seemed tailored a bit more specifically to the blustery politician standing before her: “I want to remind you,” the judge said, “it is a crime to intimidate a witness or retaliate against anyone for providing information about your case to the prosecution, or otherwise obstruct justice.”
When Upadhyaya asked Trump if he understood, he nodded. Fewer than 24 hours later, Trump appeared to flout that very warning—in its spirit if not its letter—by threatening his would-be foes in an all-caps post on Truth Social: “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” Over the following week, he attacked a potential witness in the case, former Vice President Mike Pence (“delusional”); Special Counsel Jack Smith (“deranged”); and the federal judge assigned to oversee his case, Tanya Chutkan, an appointee of former President Barack Obama (Smith’s “number one draft pick,” in Trump’s words).
Trump’s screeds highlight a challenge that will now fall to Chutkan to confront: constraining a defendant who’s both a former president and a leading candidate to take the White House—and who seems bent on making a mockery of his legal process.
“She’s in a tight spot,” Barbara McQuade, a former U.S. attorney in Michigan, says of Chutkan. Conceivably, the judge could find Trump in contempt of court and toss him in jail for violating the terms of his pretrial release. But even though in theory Trump should be treated like any other defendant, former prosecutors told me that he was exceedingly unlikely to go to prison over his pretrial statements. And Trump probably knows it. (Whether Trump will go to prison if he is convicted is another hotly debated matter.)
“I’m sure she would be very reluctant to do that, in light of the fact that he’s running for president,” McQuade told me. “So I think as a result, he has a very long leash, and I think he will simply dare her to revoke [his freedom] by saying the most outrageous things he can.”
At a pretrial hearing today, Chutkan issued her first warnings to Trump’s lawyers about their client, according to reporting by Steven Portnoy of ABC News and Kyle Cheney of Politico. “Mr. Trump, like every American, has a First Amendment right to free speech,” she said. “But that right is not absolute.” She said Trump’s presidential candidacy would not factor into her decisions, and she rebuffed suggestions by a Trump lawyer, John Lauro, that the former president had a right to respond to his political opponents in the heat of a campaign. “He’s a criminal defendant,” she reminded him. “He’s going to have restrictions like every single other defendant.”
Chutkan said she would be scrutinizing Trump’s words carefully, and she concluded with what she called “a general word of caution”: “Even arguably ambiguous statements from parties or their counsel,” the judge said, “can threaten the process.” She added: “I will take whatever measures are necessary to safeguard the integrity of these proceedings.”
Chutkan had called the hearing to determine whether to bar Trump and his lawyers from publicly disclosing evidence provided to them by prosecutors—a standard part of the pretrial process. The evidence includes millions of pages of documents and transcribed witness interviews from a year-long investigation, and the government argued that Trump or his lawyers could undermine the process by making them public before the trial. Despite her warnings to Trump’s team, she sided with the defense’s request to narrow the restrictions on what they could disclose, and she did not add other constraints on what he could say about the case.
Yet the effect of Chutkan’s courtroom comments was to put Trump on notice. If he continues to flout judicial warnings, she could place a more formal gag order on him, the ex-prosecutors said. And if he ignores that directive, she would likely issue additional warnings before considering a criminal-contempt citation. A further escalation, McQuade said, would be to hold a hearing and order Trump to show cause for why he should not be held in contempt. “Maybe she gives him a warning, and she gives him another chance and another chance, but eventually, her biggest hammer” is to send him to jail.
Judges have sanctioned high-profile defendants in other cases recently. In 2019, the Trump ally Roger Stone was barred from posting on major social-media platforms after Judge Amy Berman Jackson ruled that he had violated a gag order she had issued. (Stone did honor this directive.) The Trump foe Michael Avenatti, who represented Stormy Daniels in her case against Trump and briefly considered challenging him for the presidency, was jailed shortly before his trial on extortion charges after prosecutors accused him of disregarding financial terms of his bail. “He was just scooped up and thrown into solitary,” one of his former lawyers, E. Danya Perry, told me. She said that Avenatti was thrown into the same jail cell that had held El Chapo, the Mexican drug lord. (Avenatti later claimed that his treatment was payback ordered by then–Attorney General Bill Barr; the prison warden said he was placed in solitary confinement because of “serious concerns” about his safety, and Barr has called Avenatti’s accusation “ridiculous.”)
Neither Stone nor Avenatti, however, is as high-profile as Trump, arguably the most famous federal defendant in American history. And Perry doubts that Chutkan would imprison him before a trial. Trump has ignored warnings from judges overseeing the various civil cases brought against him over the years and has never faced tangible consequences. “He has done it so many times and he has managed to skate so many times that he certainly is emboldened,” Perry said.
Indeed, Trump has also suggested he would ignore a gag order from Chutkan. “I will talk about it. I will. They’re not taking away my First Amendment rights,” Trump told a campaign rally in New Hampshire on Wednesday.
Trump’s political motives for vilifying his prosecutors and once again portraying himself as the victim of a witch hunt are obvious: He’s trying to rile up his Republican base. Trump also seems to be executing something of a legal strategy in his public statements about the trial. He’s called Washington, D.C., “a filthy and crime-ridden embarrassment,” possibly reasoning that these remarks will force the court to agree to his request to shift the trial to a venue with a friendlier population of potential jurors, such as West Virginia.
That’s less likely to work, according to the former prosecutors I interviewed. “I’d be shocked to see that be successful,” Noah Bookbinder, a former federal prosecutor who heads the anti-corruption advocacy group Citizens for Responsibility and Ethics in Washington, told me. “It’s sort of like the old joke about the child who kills his mother and father and then asks for mercy because he’s an orphan. I just don’t see a court going for that.”
Trump’s attacks also present a problem for Smith, the special counsel. On one hand, prosecutors have a clear interest in ensuring that their witnesses do not feel intimidated; on the other, Smith could feel that trying to silence Trump would play into the former president’s victim narrative. Justice Department prosecutors alerted Chutkan to Trump’s “I’m coming after you” post in a court filing, and during today’s hearing they voiced concerns that if not restricted, Trump could disclose evidence to benefit his campaign. (A Trump spokesperson said the former president’s warning was “the definition of political speech,” and that it referred to “special interest groups and Super PACs” opposing his candidacy.) But Smith’s team did not ask Chutkan to fully gag Trump or even admonish him. “You see the prosecutors being very, very restrained,” Bookbinder said. “With a lot of defendants who were bad-mouthing the prosecutor and witnesses, they would have immediately gone in and asked for an order for the defendant to stop doing that.”
Bookbinder described the citation of Trump’s post as “a brushback pitch” by the government, a signal that they are watching the former president’s public statements closely. But like Chutkan, Smith might be reluctant to push the matter very far. Fighting with Trump over a gag order could distract from where the government wants to focus the case—on Trump’s alleged crimes—and it could indulge his desire to drag out the trial, Bookbinder noted. But the special counsel has to weigh those concerns against the possibility that an out-of-control defendant could jeopardize the safety of prosecutors and witnesses. “My strong suspicion is that Jack Smith doesn’t want to go there,” Bookbinder said. “I think at some point he may have little choice.”
Benson declined to comment on what information Smith is seeking, saying in a statement sent to The Associated Press that “the Department of Justice has asked that we not disclose the contents of the subpoena to prevent harming the investigation and we will honor that request.”
Jake Rollow, a Michigan Department of State spokesman, said Thursday that the department wasn’t aware of any other subpoenas being issued in the state.
Two subpoenas obtained by The AP involving counties in other states seek “any and all communications in any form” between June 1, 2020, and Jan. 20, 2021, “to, from, or involving” Trump, his campaign, lawyers and aides, including former campaign officials such as Bill Stepien and Justin Clark and lawyers John Eastman, Boris Epshteyn, L. Lin Wood, Sidney Powell and former New York Mayor Rudy Giuliani.
Trump’s efforts to overturn the 2020 election in Michigan centered on Detroit’s convention hall. Trump falsely claimed poll workers there “were duplicating ballots,” and an unsuccessful lawsuit by his campaign on Election Day forced election workers to temporarily halt the tallying of votes in the state’s largest city.
Another lawsuit was filed by several attorneys, including Trump allies Powell and Wood, on behalf of six Republican voters who wanted a federal judge to decertify Michigan’s results and impound voting machines. The judge declined, calling the request “stunning in its scope and breathtaking in its reach.”
Michigan was also one of seven states where GOP officials submitted alternative Electoral College certificates despite Democrat Joe Biden defeating Trump in their states.
Joey Cappelletti is a corps member for The Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues.
