DOJ wants life in prison for man pardoned by President Trump

Federal prosecutors are asking a judge to sentence a Jan. 6 rioter to a lifetime behind bars—despite President Donald Trump pardoning his crimes at the U.S. Capitol, reported The Daily Beast.

Edward Kelley, a 35-year-old East Tennessee native, was convicted in November of conspiring to murder FBI agents and other officials who investigated his role in the Jan. 6 Capitol riots.

                                            Edward Kelly 'Make America Great Again'

Kelley was separately convicted of throwing a Capitol cop to the ground, with the help of others, and smashing a window with a piece of wood. However, those charges were wiped away by the president’s sweeping pardon of so-called “Jan. 6ers” in January. 

Edward Kelley was wearing a helmet, gloves, and a paint respirator when he entered the U.S. Capitol. / Department of Justice

Kelley has contested that Trump’s pardon of his Capitol crimes should also apply to his conviction for plotting to kill FBI agents and local law enforcement in Tennessee.

The Department of Justice disagrees. In a sentencing memorandum filed Tuesday, and first reported by Politico, they asked a judge to send Kelley to prison for the rest of his life.

“Kelley created a list of specific people he intended to assassinate, including agents, officers, and employees of the FBI, Tennessee Bureau of Investigation, Tennessee Highway Patrol, Maryville Police Department, Blount County Sheriff’s Office, and Clinton Police Department,” the memorandum read. “To effectuate his plan, Kelley sought the assistance of others to identify his victims’ pattern of life and to murder them at their offices, homes, and in public places.”

Part of his alleged plan was to attack his local FBI office in Knoxville by using “improvised explosive devices attached to vehicles and drones.”

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A modern day 'Saturday Night Massacre'--DOJ employees who investigated Trump fired

Acting Attorney General  James McHenry fired several Department of Justice (DOJ) employees Monday for having played a “significant role in prosecuting President Trump,” according to the memo obtained by CNN, as reported in Jurist.

The memo sent to the employees gave them formal notice of their immediate removal from their position at the DOJ, and from the federal service, stating that the trust needed to implement the president’s agenda faithfully was broken. McHenry justified the actions by citing Article II of the Constitution, acknowledging Trump’s executive power as president.

The lawyers who were terminated all formally worked with Special Counsel Jack Smith. Smith was appointed by Attorney General Merrick Garland in November 2022. Smith and his team conducted two separate criminal investigations of President Trump while in office. Smith, who resigned from his position earlier this month, attempted to take sole responsibility for these prosecutions in his Final Report as Special Counsel on January 7:

While I relied greatly on the counsel, judgment, and advice of our team, I want it to be clear that the ultimate decision to bring charges against Mr. Trump was mine. It is a decision I stand behind fully. To have done otherwise on the facts developed during our work would have been to shirk my duties as a prosecutor and a public servant. After nearly 30 years of public service, that is a choice I could not abide.

Smith also denied that any external or internal influences motivated these prosecutions. Former US Attorney Joyce Vance, an NBC News legal contributor, addressed the matter with the news source stating, “Firing prosecutors because of cases they were assigned to work on is just unacceptable. It’s anti-rule of law; it’s anti-democracy.” These prosecutions were dropped in November for Trump’s then impending inauguration. 

Although the number of individuals who have been affected by this decision is still not clear, it is estimated that there have been more than a dozen employees fired. As stated at the end of the termination memo, those fired may have a right to appeal the removal with the US Merit Systems Protection Board within 30 days of the effective date.

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Will Trump defy SCOTUS as his executive orders get overturned?

 David French writing for The New York Times:

Let’s briefly make our way through Trump’s birthright citizenship order. It’s extraordinarily broad. It doesn’t just block citizenship for children of illegal immigrants, it also blocks citizenship for children whose parents are legally present in the United States if they don’t have permanent status when their child is born.

This contradicts the language of the 14th Amendment, a controlling federal statute and Supreme Court precedent. The 14th Amendment says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

Children of illegal immigrants are quite plainly subject to American jurisdiction. They’re bound by American law every moment they’re on American soil. As Steve Vladeck, a law professor at Georgetown, explained in an excellent and comprehensive Substack post, the phrase “subject to the jurisdiction thereof” was meant to exclude children of diplomats, children of Native Americans who were subject to tribal sovereignty, and “children born of alien enemies in hostile occupation.”

These principles were outlined in an 1898 Supreme Court case called United States v. Wong Kim Ark. But one doesn’t have to rely entirely on a precedent more than a century old. As Vladeck points out, in a 1982 case called Plyler v. Doe, the court held that “no plausible distinction with respect to 14th Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

Three years later, in Immigration and Naturalization Service v. Rios-Pineda, the court observed that the undocumented immigrant parents in the case “had given birth to a child, who, born in the United States, was a citizen of the country.”

Trump may try to claim in court that undocumented immigrants are an invading, occupying force. Indeed, one of the executive orders he signed after taking office asserted that America is facing an “invasion” at the hands of migrants on its borders. Can he deem them hostile occupiers and deny their children citizenship?

No. As James Madison said in The Report of 1800, the term “invasion” applies to an “operation of war.” Any other reading of the term reaches an absurd and dangerous result. If economic migrants are “invaders,” can they be targeted with drone strikes? Gunned down at the border by the 82nd Airborne Division? Can we suspend habeas corpus to stop immigrants? Obviously not. Several federal courts of appeal have reached the same, sensible conclusion. Illegal immigration is not an invasion.

I can undertake a similar legal analysis of many of Trump’s executive orders (though not all are legally deficient). Trump’s order purporting to block enforcement of the law banning TikTok is almost comically illegal. It contradicts the plain language of the statute, and presidents do not have the constitutional power to rewrite statutes by executive fiat.

But this legal analysis skips a key question: Will Trump comply with the rulings of the Supreme Court? Or will he disregard rulings he doesn’t like, demand that the executive branch bend to his will, and then pardon the men and women who might criminally defy the Supreme Court?

If you think this scenario is far-fetched — yet another example of “pearl clutching” by hysterical Never Trumpers — remember that in 2021 JD Vance said in a podcast, “I think that what Trump should do, like if I was giving him one piece of advice, fire every single midlevel bureaucrat, every civil servant in the administrative state, replace them with our people. And when the courts — because you will get taken to court — and then when the courts stop you, stand before the country, like Andrew Jackson did, and say: ‘The chief justice has made his ruling, now let him enforce it.’”

Jackson’s statement is probably apocryphal. His own response to the Supreme Court was far more complex than the quote implies, but Vance’s intent is obvious. He was signaling that Trump could defy the nation’s highest court.

Vance stood by that idea in 2024, and now — in 2025 — Trump has fundamentally rebuked the American justice system by ordering the pardon and release of more than 1,500 people lawfully charged for their role in arguably the most dangerous insurrectionary act since the Civil War.

I continue to hope that Trump will begin to behave as he did before he attempted to steal the 2020 election. As The Times’s Adam Liptak reported in 2023, “the Trump administration had the worst Supreme Court record of any since at least the Roosevelt administration.” Yet Trump did not defy the court. Time and again, he lost and then complied with the rulings.

But 2020 was different. He lost every important court case challenging the outcome of the election, yet rather than yield to the rule of law (as Al Gore did when he faced a bitter Supreme Court defeat in 2000), he lied to the American public, tried to illegally cling to power and instigated a mob.

Trump’s pardons tell us that we’re far more likely to experience the President Trump of 2020 (and especially 2021) than the President Trump of 2017 to 2019. As National Review’s Noah Rothman argues, Trump is already planting the seeds of more political violence.

“Republicans who support these pardons,” Rothman writes, “will sacrifice the moral authority they would have needed if they were to convincingly argue for the preservation of domestic tranquillity.”

Rothman is right. Trump’s friends can commit acts of violence on his behalf. Trump’s enemies have to face danger on their own. And that reality hovers over every presidential decision Trump makes.

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Trump, as promised, pardons Jan. 6 insurrectionist

 US President Donald Trump issued pardons Monday to around 1,500 people convicted for their roles in the January 6th, 2021 Capitol attack, where rioters stormed the legislative building seeking to disrupt the certification of the 2021 election. Alongside the full pardons, Trump commuted the sentences of 14 other January 6th defendants, including Oath Keepers leader Stewart Rhodes, who will be released but retain their convictions. Trump also directed the Justice Department to drop outstanding charges against all other Capitol attack defendants.

While signing the pardons, Trump referred to the defendants as “hostages” and said that his administration is doing “further research” on those who have had their sentences commuted.

Among those who have received full pardons is Proud Boys leader Enrique Tarrio, whose mother announced his release on social media. Tarrio was convicted of seditious conspiracy and conspiracy to obstruct an official proceeding in 2023. Prosecutors said Tarrio directed and encouraged the actions of Proud Boy Capitol rioters despite not being present in Washington DC at the time.

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AG nominee: 'The investigators will be investigated'

Donald Trump’s pick to lead the Justice Department, Pam Bondi, faced questions on Capitol Hill Wednesday over her loyalty to the Republican president-elect, who has vowed to use the agency to pursue revenge on his perceived political enemies, reported The Associated Press.

The former Florida attorney general and corporate lobbyist told lawmakers on the Senate Judiciary Committee that politics would play no part in her decision-making as the country’s chief federal law enforcement officer, but also refused to rule out the potential for investigations into Trump’s adversaries.

If confirmed to lead the department that charged the once and future president in two separate criminal cases, Bondi would become one of the most closely scrutinized members of Trump’s cabinet.

She’s a close Trump ally and long-time defender

Bondi has been a fixture in Trump’s orbit for years, and a regular defender of the president-elect on news programs amid his legal woes.

“The Department of Justice, the prosecutors will be prosecuted — the bad ones,” Bondi said in a 2023 Fox News appearance. “The investigators will be investigated.”

As Democrats repeatedly questioned Wednesday whether she would maintain a Justice Department that’s independent from the White House, Bondi insisted that “no one should be prosecuted for political purposes.” But she also refused to say what she would do if the president directed her to drop a case or answer whether she would investigate Jack Smith, the Justice Department special counsel who charged Trump.

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Creators: Rewriting History on the Anniversary of the Jan. 6 Insurrection

Matthew T. Mangino
Creators
January 6, 2025

Rep. Barry Loudermilk (R-Ga.) recently released his "Interim Report on the Failures and Politicization of the January 6th Select Committee." As the title suggests, the report seeks to rewrite what happened on Jan. 6, 2021, when insurrectionists, encouraged by then-President and current President-elect Donald Trump, attacked the U.S. Capitol.

It seems fitting that Loudermilk should be from the state of Georgia. He wants to do to Jan. 6 what his Southern forefathers did in the decades following the Civil War. He wants to rewrite history.

The South was vanquished after the Civil War. The Confederates could not deal with massive and total defeat. As Ty Seidule wrote in "Robert E. Lee and Me," a new narrative had to be created to explain their failure. Seidule explained, "Today, historians call the series of lies, half-truths, and exaggerations the 'Lost Cause of the Confederacy' myth."

Loudermilk's report includes lies, half-truths, exaggerations and omissions. As historian and writer Heather Cox Richardson recently wrote, quoting former Rep. Liz Cheney, Loudermilk's report "intentionally disregards the truth and the Select Committee's tremendous weight of evidence, and instead fabricates lies and defamatory allegations in an attempt to cover up what Donald Trump did." Cheney continued, "Their allegations do not reflect a review of the actual evidence, and are a malicious and cowardly assault on the truth."

The Lost Cause was not just a passing effort to rewrite history. Seventy-one years after the war, Loudermilk's fellow Georgian Margaret Mitchell wrote "Gone with the Wind," a playbook for the Lost Cause. Made into an Academy Award-winning movie, "Gone with the Wind" sanitized the reasons for the war, shaping perceptions of the Civil War for generations.

The FBI classified the Jan. 6 attack as an act of domestic terrorism that injured approximately 140 police officers and endangered the country's peaceful transfer of power. According to NPR, in the immediate aftermath, a bipartisan group of political leaders condemned the violence. "American citizens attacked their own government. They used terrorism to try to stop a specific piece of domestic business they did not like, "said Sen. Mitch McConnell, the top Republican in the Senate at the time.

The attempted coup was not a spontaneous act, according to American Oversight. "The invasion of the U.S. Capitol ... was stoked in plain sight." ProPublica reported that Trump supporters had discussed openly for weeks their plans for a violent overthrow. Their goal of stopping the election certification was based on unfounded conspiracy theories of widespread voter fraud.

Trump has rejected those arguments and is complicit in attempting to rewrite the history of the insurrection. He refers to Jan. 6 as a "day of love" and calls the rioters "patriots." He announced his intention to pardon those charged and convicted in connection with the attack — that will be a lot of pardons.

Nearly 1,000 Jan. 6 offenders pleaded guilty; more than 250 were convicted in court. The historical record established by the vast, nationwide legal effort cannot just be erased by a wholesale pardon. The endless video clips — logged and verified — and the volumes of court records have helped prosecutors turn Jan. 6 into the best-documented riot in history.

Seidule wrote, "[T]he Lost Cause became a movement, an ideology, a myth, even a civil religion." He went on to write, "This lie came at a horrible, deadly, impossible cost to the nation, a cost we are still paying today. The Lost Cause created a flawed memory of the Civil War, a lie that formed the ideological foundation for white supremacy and Jim Crow laws."

Loudermilk seeks to do the same with Jan. 6. As America marks the fourth anniversary of Jan. 6, we would do well to remember that Loudermilk's flawed and misleading report and demand that Liz Cheney be prosecuted for her work on the investigating committee is ripped from the playbook of the postbellum South.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on X @MatthewTMangino

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Sentencing for Jan. 6 insurrectionist: 'Trump’s gonna pardon you . . . Donald’s got you'

A federal judge appointed to the bench by President Ronald Reagan said recently that the public discourse about the Jan. 6 attack on the U.S. Capitol — and the cases against Donald Trump supporters prosecuted because they committed crimes in support of the once and future president — had been distorted, reported NBC News.

U.S. District Judge Royce Lamberth said that while the events of Jan. 6 may be a “distant, hazy memory” for many Americans, there were many who suffered that day who never forget the attack. Emphasizing that “truth and justice, law and order” are bedrock principles of the judicial system, Lamberth said that the jurors who heard the cases “know how perilously close we came to letting the peaceful transfer of power, that great cornerstone of the American republican experiment and perhaps our foremost contribution to posterity, slip away from us.”

Lamberth — who previously said the “preposterous” claims Republican politicians were making about the Capitol attack “could presage further danger to our country” — made his comments during the sentencing of a man who ran for a congressional seat previously held by former Rep. George Santos.

Philip Grillo had been convicted of a felony count of obstruction of an official proceeding, but after the Supreme Court this summer ruled against the use of that charge in Jan. 6 cases, Grillo filed a motion for acquittal on that count, which the government did not oppose. So on Friday, Grillo was sentenced to a year in prison on the remaining misdemeanor counts.

“We f---ing did it, you understand? We stormed the Capitol,” Grillo said in a video he took of himself in the Capitol, according to the Justice Department. “We shut it down! We did it!”

Lamberth, who sentenced Grillo to 12 months behind bars, had rejected Grillo’s argument to delay his sentencing due to the possibility that Trump might pardon some or all of the Jan. 6 rioters. He ordered Grillo to be stepped back, or taken into custody immediately, rather than be allowed to self-surrender.

“Trump’s gonna pardon you,” said one of Grillo’s supporters in the courtroom galley. “Donald’s got you, Phil.”

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Be careful what you wish for, SCOTUS creates volatile campaign issues

 Professor Eric J. Segall of Georgia Sate University, writing at Jurist:

The conservative justices on the Roberts Court consistently lecture the American people about the importance of text, history, and tradition to constitutional litigation. They use the term originalism as a catch-all phrase for their alleged focus on prior law. They want the American people to believe that their preferred outcomes are based on legal sources external to their own ideological preferences.

As the Court starts the new term, however, we can see from last year’s important cases that the justices’ alleged commitments to originalism are illusory. Election concerns and pragmatic factors drove the Court’s important decisions not any open-minded journey through our Constitution’s text, history, and traditions. That pattern is always true no matter which political party controls the Court. But the liberal justices do not pretend they can fill the open spaces of constitutional law with answers derived exclusively from text, history, and tradition.

As a matter of governmental transparency and rule of law values, the justices should justify their country-defining decisions with reference to their values, politics, and experiences and not pretend that text, history, and tradition are the drivers of the results they reach. Last term’s cases starkly and dangerously illustrate the disconnect between how the Roberts Courts describes the methods they use to solve hard issues and the actual factors generating those decisions. A summary of those cases and their context demonstrates that politics not law were at the forefront of the justices’ considerations.

Abortion

Donald Trump’s and J.D. Vance’s meandering and changing statements about abortion reflect GOP awareness that they are on the wrong side of this issue in a post-Dobbs world. According to Whit Ayres, a GOP pollster and consultant, “when you’re talking about abortion, you’re playing on the Democrats’ turf just like when you’re talking about immigration and inflation, you’re playing on Republicans’ turf.”

The conservative justices understood the politics of the moment so were also “loath” to talk about abortion last term, just like the leaders of the Republican Party. That concern resulted in the Court’s dismissal on procedural and standing grounds of two huge cases because the justices were wary about issuing anti-choice opinions five months before a monumental election. The cases were dismissed prior to the justices’ reaching the merits, so it is likely both, one involving a suit by anti-choice doctors to make abortion drugs much harder if not impossible for women to obtain, and one dealing with emergency room procedures during difficult pregnancies, will return to the Court, but not in an election year.

Trump Cases

The dismissal of the abortion decisions, admittedly, is one step removed from cases directly impacting elections, although the effects of those two cases, had they been decided differently, would have hurt the GOP in November. The two Trump cases the Court heard this term demonstrated how much the six conservative justices were focused on the upcoming presidential election not text, history, or tradition.

Section 3 of the Fourteenth Amendment forbids any person “who having taken an oath . . . to support the Constitution . . . shall have engaged in insurrection or rebellion” from holding “any office, civil or military, under the United States, or under any State.” Two conservative scholars—Professors William Baude and Michael Stokes Paulsen—wrote an important article arguing that President Donald Trump is disqualified from seeking the Presidency because of his involvement in the January 6, 2021, attack on the Capitol. Subsequently, the Colorado Supreme Court agreed and ruled that Trump could not be on the Colorado ballot.

In a unanimous and fast-tracked ruling, the Court held that states have no jurisdiction to disqualify a President under Section 3, at least absent a federal law authorizing them to do so. The justices knew that Congress would not pass such an authorization, and the disqualification issue vanished from the scene, certainly helping Trump.

Why did the liberal justices go along, even if they disagreed about the breadth of the opinion? They knew that red states were not going to disqualify Trump, that they were out-voted anyway, and they were likely scared of future disqualifications of Democratic candidates by red states.

But the most important aspects of this case were the Court’s speedy resolution of the controversy and the complete absence of any serious discussion of text, history, and tradition. Instead, the justices focused on pragmatic and prudential concerns. When originalism does not align with the conservative justices’ values and politics, the Roberts Court consistently minimizes or ignores text, history, and tradition.

The second Trump case, involving the President’s immunity from criminal prosecution after he leaves office, was characterized by one noted commentator as the legal nadir of the Roberts Court, putting the President “above the law.” There can be little doubt that the result and the timing of the decision was designed to help the former President. They made Trump’s prosecutions as difficult and as delayed as possible.

The Court created three buckets of Presidential conduct. For core constitutional functions, such as the President’s pardon power, he possesses immunity. For acts taken pursuant to congressional authority, he has presumptive immunity. For unofficial conduct, he has no immunity.

This approach is reasonable and had the Court stopped there, the lower courts would have had to figure out in which bucket Trump’s efforts to steal the election belonged. But the Roberts opinion (with the liberals dissenting) went much further and held that, when judges try to figure out the relevant buckets, evidence of motive, other official acts, and discussions with top advisors cannot be considered by the courts. Pursuant to those gratuitous add-ons without any basis in text, history, or tradition, Presidents are now effectively immune for acts taken while they were President, no matter how criminal.

The Court’s fast-tracking of the disqualification case way back in February combined with their delay of the immunity case and its eventual holding (on the last day of the term) insured that Donald Trump would be on the ballot in November and that the pending criminal case against him brought by Jack Smith would not be concluded by the election, and that the disqualification question would not affect the election.

No constitutional text provides immunity for the President, the Court barely glanced at history, and the entire decision reads like living constitutionalism on steroids. In both the immunity and the disqualification cases, the justices barely glanced at the law and decided based on other concerns, mostly about the upcoming election. They acted exactly as one would expect Republican politicians to act.

Second Amendment

And then there were guns. Two years ago, the Court decided New York State Rifle & Pistol, Inc. v. Bruen, in which the Court overturned a 1911 New York law requiring a special license to openly carry a firearm and issued a new and bizarre analysis that has caused chaos and confusion in the lower courts. Part of the chaos included an unhinged Fifth Circuit decision invalidating a federal law disarming people who are under domestic relations protective orders. The defendant had a history of violent threats, including against the girlfriend who was the subject of the order.

The Court could not affirm that madness shortly before the election. Such a holding would have been a complete disaster at the polls, especially among women who are much too often the victims of domestic violence. Thus, in Rahimi v. United States, the Court reversed the Fifth Circuit and said the defendant in the case could be constitutionally prohibited from owning a gun. Only Justice Thomas dissented.

The Roberts Court used the issues of abortion, guns, Presidential immunity, and Trump’s potential disqualification to protect Republican politicians running for office. Text, history, and tradition simply did not matter to the originalists in these cases. Although the justices often hide behind legalese instead of the real drivers of their judgments, last term was one of the worst measured by pure hypocrisy. The conservative justices should stop pretending their important constitutional law decisions flow from legal sources or their originalism. They do not. The justices hiding that reality is a gross affront to transparency and the rule of law.

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Chief Justice Roberts pushed SCOTUS decision on immunity

Dahlia Lithwick and Mark Joseph Stern writing for Slate this week: 

On Sunday, New York Times reporters Jodi Kantor and Adam Liptak published a blockbuster article about the conservative justices’ efforts to shield Donald Trump from any consequences for his efforts to overturn the results of the 2020 election. This is what Supreme Court reporting needs to become: less credulous academic translating of a handful of judicial opinions and more cultivation of inside sources, procuring of confidential memos, and production of massive scoops. More to the point, their piece—about how the three Jan. 6 cases decided last year in favor of Donald J. Trump came together—contains several remarkable news bombshells, including the fact that Justice Samuel Alito had the opinion in the Capitol assault case, Fischer v. United States, taken away from him by Chief Justice John Roberts; that the liberal justices were working to try to get the majorities to moderate maximalist positions in all three cases; and that Justices Clarence Thomas and Neil Gorsuch would have pushed the immunity case to be decided after the 2024 election. But the biggest revelation here is that the character John Roberts plays as an affable centrist steward of the court’s reputational interests—created largely in the press and played to the hilt by him—is a total fiction. It was Roberts who decided that Trump and Trumpism would prevail in all three insurrection cases and he did not, in this instance, follow in the wake of the court’s aggressive conservative maximalists. He was the aggressive conservative maximalist. And he created majority opinions in his own image.

A singular revelation in the Times’ reporting is a memo Roberts produced in February of 2024, after a cross-ideological panel of the U.S. Court of Appeals for the D.C. Circuit handed down a decision rejecting Trump’s claims that he was almost wholly immune from criminal liability for actions taken during his time as president. In his confidential memo, the chief justice “offered a scathing critique” of that opinion, complaining that the lower court judges “failed to grapple with the most difficult questions altogether.” He inveighed that the Supreme Court should take the case—which would hold up Trump’s criminal trial slated for the summer—but also previewed how the justices would reverse the lower-level ruling. “I think it likely that we will view the separation of powers analysis differently” from the appeals court, he warned. From that point onward, it appears he was committed to a sweeping decision for the former president—and never seemed to wonder if a massive victory for Trump might imperil American democracy.

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'Smith’s case remains strong' after immunity ruling, 'mini-trial' should start soon

In the coming weeks or months, a federal district court will have the opportunity to apply the Supreme Court’s recent ruling on the scope of a former president’s immunity from criminal liability, reported Just Security. The decision has been accurately described, by Akhil Amar and others, as one of the worst in the Court’s history because of the leeway it gives a president to commit crimes and its expansion of exclusive executive authority. However, the Court’s ruling shields only some official presidential conduct from criminal prosecution. Unofficial acts are not covered by immunity, and not all official acts are absolutely immune. A key question in the January 6 case becomes which of the specific acts alleged in the indictment are immune under the Court’s new test and which aren’t. The Court gave important “guidance” (its term), but largely left that question for the trial court to answer in the first instance. The trial court’s process for answering that question will involve an evidentiary inquiry, and perhaps hearings, to assess alleged facts relevant to the legal test.

On our view, the Court’s decision leaves the core of the case against Trump intact. A fair application of the Court’s new immunity test to the indictment’s allegations yields a narrowed but still plainly viable prosecution. As we write, the trial court and the parties are preparing to grapple with this issue. On Saturday, August 3, Judge Tanya Chutkan—the trial judge presiding over the case—issued an order requesting the parties to propose a schedule for the remaining pretrial proceedings. The order also scheduled a status conference for August 16, at which the court may decide the path forward. The application of the immunity test will likely be a central part of that process.

In this essay, we discuss how the trial court should approach applying the Supreme Court’s ruling. We believe that as soon as possible following the status conference, Judge Chutkan should schedule an evidentiary hearing—a “mini-trial,” in which documents and witnesses are presented—to determine the scope of the immunity in this case. Our examination of the new immunity rule and the specific allegations against Trump indicate that Smith’s case remains strong and should survive that inquiry with key elements remaining unscathed.

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Trump's election subversion case heads toward evidentiary hearing

The stalled criminal case against Donald Trump for seeking to subvert the 2020 election is starting to move, reported Politico.

The Supreme Court’s landmark ruling on presidential immunity — a breathtaking legal victory for Trump’s bid to sideline his criminal prosecutions — had kept the election-subversion case on ice for months. Even after the July 1 ruling, the high court’s rules required a one-month delay to give prosecutors the chance to ask the justices to reconsider the outcome.

On Friday, that window closed. The case was returned to the D.C. Circuit Court of Appeals, which took just minutes to send the matter back to the courtroom of U.S. District Judge Tanya Chutkan, who has been in a holding pattern since December awaiting the outcome of the immunity fight.

On Saturday, Chutkan took her first steps in the case in months, setting an August 16 hearing to consider setting a new schedule. She has asked for prosecutors and Trump to offer their own thinking on the matter in writing by August 9. The court session won’t force Trump off the campaign trail, since Chutkan said she won’t require him to be present.

Still, the flurry of actions signals new life for the gravest of the four criminal cases against Trump — and it comes at a time when other Trump cases have stalled. Special counsel Jack Smith charged the former president in August 2023 with four counts, alleging a sweeping conspiracy to disenfranchise millions of voters and pressure government officials to overturn the legitimate 2020 election results.

There appears to be no real prospect of a trial in the case before the November election, but some Trump critics have been eagerly awaiting the Supreme Court’s ministerial action of returning the case to the trial court, hoping that it results in a series of swift decisions from Chutkan that could again put Trump on the defensive.

The Supreme Court ruled that former presidents have immunity from prosecution for many of their “officials acts,” and it said that some of Smith’s allegations in the election case must be tossed out. But it’s not yet clear how, or whether, the special counsel can proceed with other portions of his indictment.

Some Trump critics have urged Chutkan to hold a hearing to assess the effect of the immunity ruling on the evidence Smith intends to present. That proceeding could feature witness testimony from key figures in the case.

Trump opponents hope this “mini-trial” would showcase Trump’s ties to the violence that unfolded on Jan. 6, 2021, and remind voters of the most chaotic day of Trump’s presidency, even if it doesn’t carry the same stakes as a jury trial.

In her one-page order, filed around 9:30 a.m. Saturday morning, Chutkan did not directly address the possibility of a “mini-trial” — often referred to by lawyers as an evidentiary hearing. However, she did signal that she’s aware the Supreme Court ruling leaves her with decisions to make about what part of the charges against Trump can proceed and what sort of evidence prosecutors will be permitted to introduce.

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Law & Crime: These cases will go away faster than you can say ‘President Trump’: For Trump’s legal team, it’s all about delay

Matthew T. Mangino
Special for Law and Crime News
July 8, 2024

The U.S. Supreme Court decision on presidential immunity is already having an impact on the pending criminal cases against Donald Trump. The former president’s lawyers are trying to apply the ruling in Trump v. United States to the Mar-a-Lago classified documents case. In a 10-page motion, lawyers have asked U.S. District Judge Aileen M. Cannon to allow them to file additional briefings on immunity and to freeze nearly all pretrial activity until she resolves the issue.

“Resolution of these threshold questions is necessary to minimize the adverse consequences to the institution of the presidency arising from this unconstitutional investigation and prosecution,” Trump’s lawyers wrote in the July 5 filing.

The second look proposed by Trump’s legal team was made possible by the Supreme Court’s recent ruling. The high court found “at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.” The Court ruled that the former president has absolute immunity with regard to his discussions with the Department of Justice about leveraging power to have states replace their legitimate electors and investigating sham allegations of election fraud.

The court found that the president is presumptively immune for allegedly “attempt[ing] to pressure the Vice President to take particular acts in connection with his role at the certification proceeding.”

What’s more, the majority of the justices found that Trump’s communication by tweet and public address on Jan. 6 may be protected.

“The president possesses ‘extraordinary power to speak to his fellow citizens and on their behalf,” the decision said. “[T]he President’s] communications are likely to fall comfortably with the outer perimeter of his official responsibilities.”

Trump’s lawyers will likely seek to toss all of the federal charges for subversion of the 2020 election. The Supreme Court has remanded the case to U.S. District Judge Tanya Chutkan to determine which allegations in Smith’s indictment would be barred under the decision, and the justices said that additional briefing will be needed for the trial court to do so.

The portion of Smith’s prosecution dealing with scheming with the Department of Justice to pressure Georgia to investigate the election is dead in the water. Trump’s team will use the court’s opinion to fight evidence in the case still standing after Chutkan completes her analysis — like meetings Trump had with his top advisers and Vice President Mike Pence.

Some portion of the fake electors case might survive the court’s scrutiny and also the classified documents case which occurred after Trump left the White House.

Smith’s prosecutions have taken a blow, but it’s certainly not a knockout. However, Trump’s strategy from the beginning in dealing with the various criminal charges was delay. To that end he has been successful. Smith’s prosecutions will not be tried before Election Day, and if Trump ultimately wins in November these cases will go away faster than you can say “President Trump.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. and the former District Attorney of Lawrence County, Pennsylvania, His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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SCOTUS bars key felony charge in Jan. 6 prosecutions

Roger Parloff wrote on Lawfare, on June 28, the U.S. Supreme Court did what many commenters had been fearing for almost three years: It barred—or at least pared back—the department’s use of a key felony charge in the Jan. 6, 2021, Capitol Siege cases: corrupt obstruction of an official proceeding under 18 U.S.C. Section 1512(c)(2). The department has leveled that charge against at least 355 individuals, according to its data, which is about one quarter of the 1,427 total defendants who have been federally charged in connection with the insurrection.

Yet the blow will likely have less dire consequences than many cassandras—including me (for example, here, here, here, and here)—once assumed. That is so for practical as well as legal reasons. As a practical matter, no defendant was charged solely with that offense, and the most violent actors were invariably charged with multiple felonies in addition to 1512(c)(2). Further, the ruling has arrived late enough in the litigation that it will not have a noticeable impact on the vast majority of cases. Only about 52, as explained below, are likely to be significantly impacted. Finally, as a legal matter, the Supreme Court left open the possibility, as Justice Ketanji Brown Jackson stressed in her concurrence, that prosecutors might still be able to use this charge in Jan. 6 cases—including those of the 52 defendants most potentially impacted.

Moreover, as also discussed below, the ruling appears unlikely to have any effect on special counsel Jack Smith’s four-count election-interference indictment against former President Donald Trump in Washington, D.C. That indictment includes one count of corrupt obstruction of an official proceeding, and one count of conspiring to commit that offense.

The 6-3 ruling, authored by Chief Justice John Roberts, Jr., unquestionably and greatly narrows the ambit of the law. While the Justice Department had assumed that the statute broadly criminalized corrupt attempts to obstruct official proceedings, including by means of riotous conduct, the majority concluded that that the law is narrower. It defines, rather, a more conventional, obstruction-of-justice crime that focuses on corruptly falsifying or destroying evidence or other objects being used at an official proceeding. The crux of the holding, in the Chief Justice’s words, is this:

the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or ... other things used in the proceeding, or attempted to do so.

Though Roberts’ ruling was based largely on textualist arguments, one of the Court’s preeminent textualists, Justice Amy Coney Barrett, wrote the dissent, which was joined by Justices Sonia Sotomayor and Elena Kagan. “The Court,” Barrett wrote, “does textual backflips to find some way—any way—to narrow the reach of subsection (c)(2).” She chides the majority justices who, she concludes, “simply cannot believe that Congress meant what it said.”

At first glance, the majority ruling appears to preclude use of the statute against Jan. 6 defendants, who, like defendant Joseph Fischer, a then-Pennsylvania police officer, allegedly stormed the Capitol with intent to stop the electoral vote count through multiple unlawful means. (Fischer was charged in a seven-count indictment that included two other felonies, including assaulting a federal officer and impeding a law enforcement officer during a civil disorder.)

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NYT: Jamie Raskin--How to Force Justices Alito and Thomas to Recuse Themselves in the Jan. 6 Cases

Congressman Jamie Raskin, in a guest opinion for The New York Times, demonstrates how to force Justices Alito and Thomas to recuse themselves from the Jan. 6 cases.

"The constitutional and statutory standards apply to Supreme Court justices. The Constitution, and the federal laws under it, is the “supreme law of the land,” and the recusal statute explicitly treats Supreme Court justices like other judges: “Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The only justices in the federal judiciary are the ones on the Supreme Court." 

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Judge in Jan. 6 cases warns of future violent attacks after 2024 election

 A federal judge who has overseen numerous criminal cases against Donald Trump supporters who viciously assaulted police officers during the Jan. 6 attack on the Capitol expressed concern during a sentencing hearing that the former president could trigger another violent attack in the lead-up to or aftermath of the 2024 presidential election, reported NBC News.

U.S. District Judge Rudy Contreras voiced those concerns while sentencing Jeffrey Sabol, a Colorado geophysicist, to 63 months, or more than five years, in federal prison. Sabol had told the FBI that he believed there was no question the election was stolen and that Dominion voting machines had been tampered with. Sabol also told the FBI he was filled with “patriotic rage” on Jan. 6, that a “call to battle was announced” and that he “answered the call because he was a patriot warrior.”

Contreras said that Trump and his allies had “spurred” the attack on the Capitol, saying he was worried that Sabol would respond once again if a similar “call” was issued.

"It doesn't take much imagination to imagine a similar call coming out in the coming months," Contreras said Thursday.

Sabol, who repeatedly assaulted officers at the lower west tunnel during the Capitol attack, was one of a fraction of the Jan. 6 defendants who had been held pretrial, so he's already served the majority of his sentence. He was arrested on Jan. 11, 2021, just five days after the attack. Sabol destroyed his laptop in a microwave oven, dropped his cellphone in a body of water and tried to board a flight to Zurich, Switzerland, prior to his arrest, prosecutors said.

Contreras on Thursday also ordered Sabol to pay $32,165.65 in restitution and serve three years of supervised release.Jeffrey Sabol, center, seen during the Jan. 6 attack on the U.S. Capitol. U.S. District Court for the District of Columbia

In the lead-up to the Capitol attack, many Trump supporters saw the former president's Dec. 19, 2020 "will be wild" tweet encouraging people to come to Washington on Jan. 6 as a "call to arms." As criminal cases against hundreds of Trump supporters have made their way through federal court, Jan. 6 defendants have said time and time again that they took the actions they did because they believed the former president's baseless lies about the 2020 election.

Some Jan. 6 defendants have said they were duped and manipulated and expressed retroactive embarrassment about their lack of critical thinking skills, with some defendants even calling themselves idiots.

In the court gallery for Sabol’s sentencing was Micki Witthoeft, the mother of Jan. 6 rioter Ashli Babbit, who was shot and killed by a Capitol Police officer as she jumped through a broken window leading into the House Speaker’s Lobby. Witthoeft attended a vigil for Jan. 6 defendants outside a jail in Washington this week, which was livestreamed, saying that she had spoken with Trump on the phone earlier in the day and that the former president “talked about setting these guys free when he gets in,” a message he asked to be passed along to Jan. 6 defendants.

The former president was supposed to be currently standing trial in connection with his efforts to overturn his election loss. Instead, the Supreme Court will hear oral arguments on Trump's claims of total presidential immunity from criminal charges next month, and it is unclear if he will face trial before Election Day 2024.

Numerous members of the federal judiciary in Washington have indicated that they believe Trump is responsible for the events of Jan. 6. Contreras said at a prior sentencing against a Jan. 6 rioter that Trump and his allies “bear responsibility for what occurred that day.”

Judge Amy Berman Jackson, at a prior Jan. 6 sentencing, said that the Republican Party was "actively shunning the few who think standing up for principle is more important than power and have stepped forward to educate the public and to speak the truth." The threat to democracy, Berman Jackson said, did not evaporate or dissipate just because the 2020 election results were certified.

"The lie that the election was stolen or illegitimate is still being propagated. Indeed, it’s being amplified, not only on extremist social media sites, but on mainstream news outlets," she said. "And worse, it’s become heresy for a member of the former president’s party to say otherwise."

More recently, Senior U.S. District Judge Royce Lamberth expressed astonishment that Republican politicians had so readily latched onto "preposterous" claims about the events of Jan. 6 itself. He cited claims that criminals convicted in a court of law or ordered held until trial by federal judges because of their danger to the community or risk of flight were "hostages," a term Trump and his supporters like Rep. Elise Stefanik, R-N.Y., have used.

“The Court is accustomed to defendants who refuse to accept that they did anything wrong. But in my thirty-seven years on the bench, I cannot recall a time when such meritless justifications of criminal activity have gone mainstream,” Lamberth, who was appointed by former President Ronald Reagan in 1987, said.

“I have been dismayed to see distortions and outright falsehoods seep into the public consciousness,” Lamberth continued. “The Court fears that such destructive, misguided rhetoric could presage further danger to our country.”

Fani Willis hearing not a good look for DA's office or special county prosecutor

At some point in the coming weeks or months, the Georgia criminal case against former President Donald J. Trump and his allies will presumably focus once again on the defendants and whether they conspired to overturn Mr. Trump’s election loss there in 2020, reported The New York Times.

But the extraordinary detour that the case has taken, plunging into the intimate details of a romantic relationship between the two lead prosecutors and forcing them to fight accusations of impropriety, may have changed it fundamentally. Now it is unclear whether the case will even remain with Fani T. Willis, the district attorney of Fulton County, since lawyers for Mr. Trump and other defendants are seeking to have her entire office disqualified.

Even if the presiding judge allows Ms. Willis to keep the case, she is likely to face tough scrutiny from now on, including from a new state commission that will be able to remove prosecutors and from the Georgia Senate, which has opened an investigation.

The controversy has also provided fresh fodder for Mr. Trump and his allies, who are adept at exploiting their opponents’ vulnerabilities. Mr. Trump was already making inflammatory attacks on Ms. Willis even before her relationship with Nathan J. Wade, the lawyer she hired to help run the election interference case, came to light.

If nothing else, Ms. Willis’s decision not to disclose her relationship with Mr. Wade from its outset has created a messy diversion from an extremely high-stakes prosecution. Even if the revelations do not taint a jury pool in Fulton County, where Democrats far outnumber Republicans and Ms. Willis has many admirers, her world-famous case could face a lasting perception problem. And if the case gets taken from her, more serious problems may follow.

Judge Scott McAfee of Fulton County Superior Court suggested on Friday that he is likely to not rule next week on whether the relationship created a disqualifying conflict of interest. But already, state officials are considering what might happen if Ms. Willis, who has given no indication that she will step aside voluntarily, has to hand off the case to another district attorney in the state.

“You have to find an office that has the resources to handle this type of case, and there are less than a handful,” Pete Skandalakis, the executive director of the Prosecuting Attorneys’ Council of Georgia, said in an interview. “You can’t go to a rural D.A.’s office that only has seven or eight prosecutors and say, ‘Can you take on this case?’”

The Trump case is an expansive racketeering prosecution involving 15 defendants and a hive of assistant district attorneys who have been steeped in it for several years. One of the nation’s top racketeering experts works on Ms. Willis’s team and helped draw up the case.

Ms. Willis herself has years of experience in prosecuting racketeering cases, and has so far extracted guilty pleas from four of the initial 19 defendants. Before the conflict-of-interest allegations emerged, she had hoped to go to trial in August, a prospect that now seems less likely than ever.

Skandalakis would be in charge of reassigning the case, if it comes to that. Among the considerations, he said, would be “how far” from Fulton County a new prosecutor would be. That probably means that the case would fall to a district attorney’s office in the Atlanta region. A new prosecutor could essentially do as he or she pleased with the case, and could even decide to drop all the charges.

Flynn D. Broady Jr., the district attorney of Cobb County, next to Atlanta, and a Democrat like Ms. Willis, said that if he were asked to take over the Trump case, “I would review the case file, to make an informed decision” about moving forward with the prosecution.

Underscoring the risks for Ms. Willis, Judge McAfee has said that even the appearance of a conflict could lead to disqualification. The fact he allowed an evidentiary hearing on the allegations against her revealed that he viewed the matter seriously.

The crux of the defense team’s argument is that the romantic relationship between Ms. Willis and Mr. Wade presented an untenable conflict of interest, because it gave the two prosecutors a financial incentive to draw out the case. Ms. Willis’s office has paid Mr. Wade more than $650,000 since his hiring in November 2021.

Both Ms. Willis and Mr. Wade have denied that she benefited financially from his hiring. They have said that their relationship started in early 2022, after she hired him, and that it ended last summer. But in court this week, a former friend of Ms. Willis testified that the relationship had started much earlier. (The witness, Robin Bryant-Yeartie, had worked in Ms. Willis’s office, but they stopped speaking after Ms. Bryant-Yeartie resigned in 2022 to avoid being fired.) 

If nothing else, the hearing created a spectacle, not least when Ms. Willis took the witness stand for several hours on Thursday.

There were furious volleys among lawyers, spiced with accusations of lies and perjury, and details about the onetime couple’s travels to vacation destinations like Belize, where they may or may not have visited a tattoo parlor. There was Ms. Willis’s tart assessment of their breakup. Her office even called her 79-year-old father to the stand to corroborate his daughter’s assertions that she reimbursed Mr. Wade with thousands of dollars in cash for their trips; he said storing up large amounts of cash was “a Black thing.”

Ms. Willis did try at one point during the melodramatic hearing to remind those tuning in of her case against Mr. Trump, which at times has seemed a distant memory since the conflict-of-interest allegations came about. “These people are on trial for trying to steal an election in 2020!” she exclaimed at one point. “I’m not on trial. No matter how hard you try to put me on trial.”

There is already precedent within the Trump case for disqualification. In July 2022, a judge blocked Ms. Willis from developing a case against Burt Jones, a fake Trump elector in Georgia 2020, because Ms. Willis had hosted a fund-raiser for one of Mr. Jones’s political rivals.

A year and a half later, no replacement prosecutor has yet been named to look into a potential case against Mr. Jones, now Georgia’s lieutenant governor.

But Mr. Skandalakis noted that unlike back then, indictments have been handed up. “That makes it different,” he said.

A weakened or deposed Fani Willis is a win for Mr. Trump. Half a dozen swing states are now conducting criminal investigations of the 2020 plot to keep the former president in power, but Ms. Willis remains the only one of those prosecutors who has brought charges against Mr. Trump himself.

Sherry Boston, the district attorney of DeKalb County, in suburban Atlanta, declined to comment on whether she would consider taking the case should Ms. Willis be disqualified. Patsy Austin-Gatson, the district attorney of Gwinnett County, also outside Atlanta, said in an email, “We of course do not have a predisposition about whether our office would consider accepting the case.”

Richard Painter, a law professor at the University of Minnesota and a former White House ethics lawyer, said he did not think the evidence so far met Georgia’s legal standard for disqualifying Ms. Willis.

Still, he said he thought it would be “best for the case that Willis voluntarily resign and that Wade also not continue to work on the case.”

Finding another prosecutor willing to take over her case will not be easy, particularly given the menacing threats that led Ms. Willis to abandon her house and require constant security.

Testifying at the hearing this week, Roy Barnes, a former governor of Georgia, recounted what he told Ms. Willis when she asked him, early on, to help lead the Trump prosecution.

“I’d lived with bodyguards for four years, and I didn’t like it,” he said. “I wasn’t going to live with bodyguards for the rest of my life.”

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Book review of 'The Undertow: Scenes From a Slow Civil War' by Jeff Sharlet

 Adam Fleming Petty is a writer in Grand Rapids, Mich.wrote this review of Jeff Sharlet book, “The Undertow: Scenes From a Slow Civil War” in the Washington Post.

The future belongs to crowds,” Don DeLillo wrote in his 1991 novel, “Mao II.” Massive crowds of faceless people banding together to heave their collective shoulder against the wheel of history. In DeLillo’s telling, those crowds existed elsewhere — in the Mideast, in Southeast Asia. Places where American individualism found less purchase. Decades later, in an irony DeLillo might appreciate, they’re coming home.

Maybe not entirely faceless, though. One face, sporting a pale forelock, looms large. One name, deployed as a verb, whips and snaps. You know it, I know it: Trump. I’m writing this in rural Indiana, where I’m visiting family. Out the window I can see the neighbor’s house, where a TRUMP flag flies at full-staff. Even a house on a country road can become part of a crowd.

That’s the phenomenon Jeff Sharlet captures in his new book, “The Undertow: Scenes From a Slow Civil War.” Sharlet has spent much of his career covering the intersections of religion and right-wing politics, most famously in “The Family: The Secret Fundamentalism at the Heart of American Power.” A look at the Christian organization that hosts the National Prayer Breakfast, among other activities both domestic and international, “The Family” found new life during the early Trump administration, when a documentary based on the book aired on Netflix.

Trump, and Trumpism, benefited more than anyone could have guessed from this fusion of personal faith and political action. Sharlet has chronicled that rise in his dispatches for Vanity Fair, traversing the country to visit the faithful. “The Undertow” gathers that writing, along with some new material, to form a travelogue that tarries with furious people in forgotten places, all of them convinced that civil war of some sort is in the offing. This marks a difference between his earlier work on “The Family,” which involved deep dives into the organization’s history and hierarchy, and “The Undertow.” To put it in religious terms, one could say he’s turned his attention from the pulpit to the congregation. Less the leaders and more the crowds, whether physical or virtual, sitting in pews or staring into screens.

It’s almost too easy to mock those who join such gatherings. I know I’m guilty of that. But Sharlet urges the reader to take their fantasies seriously, as they have produced consequences that are all too real. The realest, of course, arrived on Jan. 6, 2021. At the time, the storming of the U.S. Capitol felt unbelievable. Reading “The Undertow,” it feels inevitable.

A hipster megachurch in Miami fills the sanctuary to capacity with a message of prosperity, and nothing else. A men’s rights conference held outside Detroit draws a host of men, and a surprisingly formidable contingent of women, to discuss the supposed dangers of feminists entrapping men with false accusations of sexual assault. The women’s presence highlights a running theme of the book: Look at these crowds, and you will see faces you never expected to find there. A bravura sequence finds Sharlet in Sacramento at a rally for Ashli Babbitt, the woman shot and killed by Capitol police on Jan. 6. He then journeys across the country, from churches to American Legion posts to Shooters, the now-defunct “open-carry” restaurant owned by Republican Rep. Lauren Boebert of Colorado. Everywhere, from everyone, he hears talk of civil war, the term never quite achieving definition. “When I asked, civil war, when the believers answered, civil war, we were speaking in metaphors we could barely comprehend. We were describing a feeling that frightened or exhilarated us: a body coming apart.”

But if a war is coming, even a metaphorical one, what are its terms? What are the grievances these crowds seek to address? Based on the signs waved at rallies and the hashtags gone viral on social media, their complaints include, but are not limited to, immigration, mask mandates, gun rights, gender identity, abortion. But there’s not even consensus on which of these issues matters most or in what way. One darkly funny scene finds a Trump-flag-waving homeowner in Wisconsin incensed with the Democrats for overturning Roe v. Wade. Anger searching not for a target but a pretext.

Yet Sharlet believes there is a deeper fear, a deeper grievance, roiling beneath the copy-pasted outrage. The underlying cause of this potential civil war is not so different from that of the actual civil war of the not-so-distant past: race.

 “They are angry about their own bodies, about how other people’s bodies make them feel,” Sharlet writes about these mostly White crowds. And how do other bodies make them feel? In a word, uninnocent. The very awkwardness of that term suggests the mental gymnastics these crowds struggle to perform. The crowds revere innocence, purity, blamelessness. Ashli Babbitt is transformed from a troubled young woman into a flawless saint, a martyr for the cause of freedom. “Be proud White Americans!” Babbitt’s mother exhorts the crowd at a rally for her daughter. Proud they are innocent of racism, prejudice, guilt. Yet even the presence of non-White people is a reminder of the bloody, guilt-ridden history of the land they live on. None can escape it, no matter how hard they might try, no matter how much of the past they forget.

If “The Undertow” lacks anything, it’s a sense of the grim economic landscape. Prices are going up everywhere while wages are going down. Many of the people at these crowds — the “beautiful ‘boaters,’” as Trump so appositely calls them — are quite prosperous, yet they live in the least-prosperous areas, the exurbs and the small towns of flyover states. Such proximity to immiseration probably contributes to the sense of desperation on display at these gatherings. The blight is at the door, and they raise their flags to keep it at bay.

But that’s a minor quibble. I deeply appreciate Sharlet’s mythic-religious approach and how it enables him to capture what other journalists miss. Data can tell only half the story, and usually the half that’s less interesting. Add to that the book’s welcome ambition, both as journalism and literature. This is no mere compilation of bullet points. This is journalism-as-art, attempting to capture the mood of the nation at this fraught moment, so that others in the future may know how it felt to live through the present. Hopefully there will still be readers then.

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