The man who allegedly planted two pipe bombs in Washington, D.C. the night before the Jan. 6 Capitol riot told investigators after his arrest earlier this month that someone needed to “speak up” for people who believed that the 2020 election was stolen, according to a court filing on Sunday.  Federal prosecutors said that the defendant Brian Cole felt “extreme acts of violence” were necessary as Cole told them he placed the bombs near the RNC and DNC headquarters because “they were in charge.”  The bombs were not discovered the afternoon of Jan. 6 and did not detonate. Following his arrest this December, Cole initially denied making or planting the bombs but later confessed to transporting and planting two improvised explosive devices when presented with evidence of himself on surveillance video. In the filing, the Justice Department requested that Cole be detained until his trial, as his offense is listed as a federal terrorism crime.  Cole told investigators that although he “has never really been an openly political person,” he felt “like something was wrong” in the 2020 election and began following discussions on YouTube and Reddit. He said that “the people up top,” including “people on both sides, public figures,” should not “ignore people’s grievances” or call them “conspiracy theorists,” “bad people,” “Nazis,” or “fascists.” “If people feel that their votes are like just being thrown away, then…at the very least someone should address it,” Cole was quoted as telling investigators.  These events came as Trump repeatedly lied about winning the presidential election.  Cole denied that his actions were “directed toward Congress or related to the proceedings scheduled to take place on January 6.” The election was being certified that day when rioters stormed the Capitol building, halting the count of Electoral College ballots. According to the court filing, Cole bought many items needed to construct the bombs between 2018 and 2020. He told investigators that the idea to use pipe bombs came from his interest in the Troubles, a three-decade conflict in Northern Ireland beginning in the 1960s over whether it would remain within the United Kingdom or unite with Ireland as a single state. Bombings of public places, including detonating pipe bombs, were common. Cole drove about 25 miles to Washington from his home in Woodbridge, Virginia, on January 5, 2021, with the bombs. He said that he planted them at night because he did not want to kill or seriously injure people and was “pretty relieved” that they did not detonate.  “Ultimately, it was luck, not lack of effort, that the defendant failed to detonate one or both of his devices and that no one was killed or maimed due to his actions,” Assistant US Attorney Charles Jones wrote in the filing. “His failure to accomplish his objectives does not mitigate the profoundly dangerous nature of his crimes.” Jones highlighted that “the Vice President-elect and Speaker of the House,” as well as law enforcement, first responders, and political leaders, drove by the pipe bombs before they were discovered.

Jack Smith‘s final report on Donald’s Trump’s attempt to steal the 2020 election doesn’t contain much new information, but what timing it has. Released around 1 a.m. Tuesday—less than a week before Trump’s inauguration—the document takes aim at Trump’s and his lawyers’ contention that the end of Smith’s prosecution amounts to the “complete exoneration” of the president-elect. “That is false,” Smith writes in a letter included with report, pointing out that the cases against Trump were dismissed not because he was acquitted, but simply because he won an election. Smith makes it as clear as he can that the sole reason he dropped the January 6 case—along with the separate case regarding Trump’s attempts to hang on to classified documents he removed from the White House—was a Justice Department policy that bars prosecuting a sitting president. “The Department’s view that the Constitution prohibits the continued indictment and prosecution of a President is categorical and does not turn on the gravity of the crimes charged, the strength of the Government’s proof, or the merits of the prosecution,” the special counsel, who resigned last week, wrote in the concluding lines of the report. “Indeed, but for Mr. Trump’s election and imminent return to the Presidency, the Office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial.” It’s normal for federal prosecutors to determine they can convict people they charge; they rarely bring cases they expect to lose. But this is the first time that prosecutors have asserted, just days before inauguration, that they would have been able to convict the incoming president of felonies. Trump clearly hopes that his return to power marks the end of January 6 as a blight on his record. He even seems to view his reelection as validating his lies about his 2020 defeat. Smith’s report reads like an attempt to ensure that Trump, despite avoiding criminal conviction in the matter, will never be free of responsibility for causing a violent attack on Congress in an attempt to illegally retain power. Even in a footnote explaining why he decided not to charge Trump with violating an anti-riot law or conspiring to impeded or injure an officer of the United States, Smith states: “The Office also had strong evidence that the violence that occurred on January 6 was foreseeable to Mr. Trump, that he caused it, and that he and his co-conspirators leveraged it to carry out their conspiracies.” The report also suggests that Smith was eyeing criminal charges against some of the six co-conspirators mentioned, but not named, in Smith’s August 2023 indictment of Trump. “The Office’s investigation uncovered evidence that some individuals shared criminal culpability with Mr. Trump,” the document says. It also notes that the investigation found one of the conspirators “may have committed” unrelated crimes, which it referred to a US attorney’s office. While not named by Smith, the alleged co-conspirators are identifiable. They include Rudy Giuliani, Mr. Trump’s former personal lawyer; Jeffrey Clark, a former Justice Department official; and former Trump lawyers John Eastman, Kenneth Chesebro, and Sidney Powell. Media reports have also identified Trump adviser Boris Epshteyn as another uncharged co-conspirator. All have denied wrongdoing in the case. It’s not clear which of these individuals Smith considered charging or which he believes may have committed unrelated crimes. Smith wrote that his report “should not be read to allege that any particular person other than Mr. Trump committed a crime, nor should it be read to exonerate any particular person.” Trump responded to the report in series of posts early Tuesday morning that called the findings “fake” and attacked Smith. “Jack is a lamebrain prosecutor who was unable to get his case tried before the Election, which I won in a landslide,” Trump wrote in one of his early morning posts. “THE VOTERS HAVE SPOKEN!!!” It’s possible to argue that it’s unfair for Smith to insist he would have convicted Trump at trial, when he was unable to actually get either case before a jury. That complaint would be stronger if Trump had not worked so openly and aggressively to delay his trials until he could avoid them entirely by winning the election. Still, Smith’s report, in asserting Trump’s guilt, highlights the epic failure by the federal justice system to resolve the issue of Trump’s criminal responsibility for subverting the 2020 election before the next one was held. Critics can fault Attorney General Merrick Garland’s slow start on a high-level January 6 investigation, the partisan Supreme Court’s wish to create a presidential immunity doctrine that served Trump’s interests, or the ease with which rich defendants can slow cases. In any event, the system failed. The result is a tragedy for American politics.

Fulton County District Attorney Fani Willis has been disqualified from the Georgia case against Donald Trump. The ruling, issued Thursday morning by a panel of the state’s appellate court, deals what could be a fatal blow to the one remaining bid to hold the incoming president criminally liable for trying to steal the 2020 election. Willis began the year as a Democratic superstar who had already secured several guilty pleas in the sprawling RICO case against Trump and his allies—all while being bombarded with racist and misogynistic threats and abuse. But her legal efforts were derailed when lawyers for one of the defendants, Trump aide Mike Roman, uncovered a romantic relationship between Willis and Nathan Wade, the outside attorney she’d hired to manage the case. Among other allegations, the defendants alleged that Willis had a financial conflict of interest. After days of publicly televised, salacious hearings, trial Judge Scott McAfee ruled that Willis could continue leading the prosecution so long as Wade agreed to step down, which he quickly did. McAfee’s opinion was, nonetheless, scathing, raising serious concerns about Willis’ and Wade’s conduct. As I wrote at the time: > McAfee rejected the defendants’ argument that the DA’s romantic > relationship…amounted to an “actual conflict of interest” under which Willis > had supposedly benefited financially. Even so, McAfee found that there was > still a “significant appearance of impropriety”…He wrote that while the > defense had failed to prove that Wade and Willis had been romantically > involved before Wade’s hiring, “the District Attorney chose to continue > supervising and paying Wade while maintaining such a relationship.” McAfee > opined that Wade’s “patently unpersuasive explanation” for inaccurate > statements he had made in his own divorce case “indicates a willingness on his > part to wrongly conceal his relationship with the District Attorney.” All this > could leave Georgians to “reasonably think that the District Attorney is not > exercising her independent professional judgment totally free of any > compromising influences” were Wade to continue on the prosecution team, the > judge found. > > “An odor of mendacity remains,” wrote McAfee, prompting “reasonable questions” > about whether Willis and Wade “testified untruthfully about the timing of > their relationship.”  > > > > McAfee’s order, the judge wrote, “is by no means an indication that the Court > condones this tremendous lapse in judgment or the unprofessional manner” of > Willis’ testimony during a hearing on the matter. Georgia law, he explained, > simply did not “permit the finding of an actual conflict for simply making bad > choices—even repeatedly.” The judge went on to say that televised remarks > Willis had recently made about the case were “legally improper,” and he > threatened to bar prosecutors from further discussing the case in public. But the appeals court on Thursday disagreed—not with McAfee’s criticism of Willis, but with his legal conclusion that she could continue prosecuting Trump and the other defendants. “This is the rare case in which disqualification is mandated and no other remedy will suffice to restore public confidence in the integrity of these proceedings,” the court’s majority wrote in a 2-1 decision. Under Georgia law, this means the entire Fulton County DA’s office will be removed from the case. While the court declined to dismiss the indictment altogether, in practice, the case seems unlikely to move forward unless the ruling is overturned on subsequent appeal. As the judges noted, this isn’t the first time Willis has been disqualified from overseeing a matter related to the plot to steal the 2020 election. While she was still investigating the case, she hosted a 2022 political fundraiser for a candidate running for lieutenant governor against Republican Burt Jones, whom she subsequently named as a target of the investigation. A different judge, Robert McBurney, disqualified Willis from investigating or prosecuting Jones. “It’s a ‘What are you thinking’ moment,” McBurney said at the time, according to CNN. “The optics are horrific.” In September 2024, the Georgia prosecutor who leads a state panel responsible for reassigning the case announced that Jones would not be charged. The Trump prosecution appears destined for a similar fate.

On Friday evening, just as reporters were logging off, the Supreme Court let slip a clue about whether it would take up cases that could determine the outcome of a close election in the coming weeks. Specifically, the hint came in a statement from Justice Samuel Alito. Spoiler: He’s open to it. Alito’s missive came as the Supreme Court declined to take up a case over mail-in ballots in Pennsylvania. The Republican National Committee had asked the court to throw out a Pennsylvania Supreme Court decision allowing voters who had forgotten to place their mail-in ballot into a secrecy envelope to vote a provisional ballot. By declining to weigh in, the Supreme Court allowed some valid Pennsylvania voters who made a mistake in returning their mail-in ballots to still vote. The RNC had asked the US Supreme Court to stop them. In response, the justices unanimously declined to disenfranchise these voters and created the impression of a win for Democrats and more expansive voting rights. Technically, this is true. But as a signal of whether the justices intend to meddle in the outcome of the election, the message was muddled by Alito’s writing. Typically, the justices wouldn’t have considered such a case, because the Supreme Court isn’t supposed to second guess state court interpretations of a state law. But these are not normal times. Last year, the justices decided that second-guessing state courts was within their remit if the state law they were interpreting was election-related. In Moore v. Harper, the Supreme Court gave itself the authority to intervene in state election law matters if a state court’s decision “transgress[ed] the ordinary bounds of judicial review” at the expense of state legislative power. It’s a vague and untested standard, and this is the first election under this new precedent. The Supreme Court now has become a Sword of Damocles hanging over every state court decision concerning election procedures. > The Supreme Court now has become a Sword of Damocles hanging over every state > court decision concerning election procedures. In a statement accompanying the court’s order, Alito agreed with the rest of the justices not to take the case but chalked it up to the facts of the case, which he said constrained the court’s ability to give the RNC their requested relief of banning provisional ballots for spoiled mail-in ballots. Justices Clarence Thomas and Neil Gorsuch joined Alito’s statement. In the past, problems with the facts have not stopped the court’s conservative wing from taking on and deciding any case it wanted to. There’s the website designer who wanted to discriminate against a client who didn’t exist; the football coach who claimed he prayed alone when pictures showed him surrounded by players; and the case against President Joe Biden’s student loan forgiveness plans on behalf of an entity that wanted nothing to do with the case. The Robert’s court’s forbearance is not something to take for granted. So was the show of restraint with the Pennsylvania case a sign that the justices will not become involved in the 2024 election? Probably not. Alito signaled that he and his two colleagues might reopen this specific dispute and others like it in the coming weeks if another case were presented. He called the Pennsylvania Supreme Court’s decision “controversial” and the issue at stake “a matter of considerable importance.” As legal journalist Chris Geidner noted, this language is “a sure signal from the trio to the RNC, Donald Trump, and other possible litigants” and “clearly a set up.” Should Trump or his allies want to bring a new suit after the election, at least three justices would be open to taking the case. The question is, would a majority be willing to, as this case asked, deny people the right to vote? One framework for looking at a possible answer is by comparing the 2000 election to the 2020 election. In 2000, the presidential election came down to a few thousand votes in Florida. It wasn’t clear who the winner would ultimately be if all of Florida’s votes were counted, but by mid-December, George W. Bush held a lead of 537 votes. The Florida Supreme Court had ordered a statewide recount of certain ballots, so the Bush campaign asked the Supreme Court to intervene. So when the justices halted the recount in a 5-4 decision, they handed the election to Bush in Bush v. Gore. In effect, they picked the president in what was a tossup situation. In 2020, on the other hand, there were many entreaties for the federal courts, including the Supreme Court, to throw out ballots and hand the election to President Donald Trump. The efforts to contest the election were coming days and even weeks after it was clear that, with almost every swing state declaring Joe Biden the winner, this was not an undecided election. It was, barring very significant judicial meddling, an insurmountable lead, and despite his protestations, Trump had lost. In such a situation, the Supreme Court stepping in would have risked the court’s reputation. Why help Trump when it would only have given Biden, who would become president, a very good reason to consider court reform? If tomorrow’s results look like a Bush v. Gore scenario, particularly if the single swing state of Pennsylvania looks like the new Florida, the court’s right flank may be faced with the opportunity to help in Trump’s election. After all, the court has taken multiple steps to help Trump retake the White House, most notably by scuttling his criminal trial over his involvement in the January 6 insurrection. They have also shown a willingness to help the Republican Party in their recent decision to allow Virginia to remove voters from the rolls in a manner contrary to federal law. Interfering again would be a continuation, not an aberration. But if tomorrow’s results look more like 2020’s, and within a few days, Harris is the clear winner, a majority of the justices might find it unwise to stick their necks out for Trump. Famously, Trump doesn’t like to be associated with “losers.” The justices may feel the same way.