With The New York Times, I have filed a new Freedom of Information Act lawsuit against the government. I am seeking the full aerial surveillance videos from three of President Trump’s boat strikes – the first one, and the two for which there were announced survivors (at least initially). My thanks to David McCraw, the NYT newsroom lawyer, and Jackson Busch, this year’s NYT First Amendment Fellow.
Here is the complaint.
Former Vice President Dick Cheney died last week. The morning his passing was announced, I wrote a piece for The New York Times about how Cheney’s efforts to expand presidential power paved the way for Donald Trump’s imperial presidency, even though the two men became political adversaries.
My first book, Takeover, was about the Bush-Cheney administration’s effort to expand presidential power. When I was writing it, my working title was “The Cheney Project,” because this was really a story about him. The Bush administration’s pursue of that agenda came from Cheney, its roots stretching back to his experiences in the Nixon and Ford administrations.
Walter Isaacson asked me to participate in an discussion of that topic for a segment on the PBS show Amanpour and Company which aired this evening:
Yesterday, Judge James E. Boasberg, the chief judge of the Federal District Court for the District of Columbia, made public some previously secret material about attorney-client privilege fights in the grand jury investigations that led to President Trump’s indictment for trying to overturn the 2020 election and for retaining classified documents. I wrote about it in this New York Times article, which is also about the Knight First Amendment Institute’s attempt to make public the hidden Jack Smith report in the documents case.
I had to do some work to assess what was new in this trove and am posting it below in case it is useful to anyone.
For background, normally grand jury rules require keeping secret information such investigations. But if the government acknowledges that certain matters surrounding a grand jury investigation happened, that rule no longer applies. The public knew from news reporting that there were extensive closed-door fights over grand jury subpoenas to associates of Trump for documents and testimony in 2022 and 2023, but the actual briefs, arguments and rulings were sealed.
In the fall of 2022, Kyle Cheney/Politico and I/The New York Times separately asked to unseal materials about Trump’s attempt to use executive privilege to block grand jury subpoenas in the election investigation. The chief judge at the time, Judge Beryl Howell, who had overseen that litigation, ruled against us in early 2023 on the ground that there had been no formal acknowledgement that such litigation had occurred. At that point, The Times dropped out of the effort, but Politico kept going by appealing her ruling. Before the appeals court could address the matter, the government acknowledged the executive privilege fights in open court. The appeals court said Judge Howell had been right at the time, but the subsequent acknowledgement changed matters and sent it back down. The Justice Department did not dispute that the grand jury secrecy rule no longer covered that material, and it curated a set of files — still heavily redacted in places — that it thought could now be made public. In October, Judge Boasberg ordered its disclosure. Here’s the Times’ story about that disclosure and Politico’s.
Then, earlier this year, I wrote to Judge Boasberg to make a similar request regarding materials from those fights over assertions of attorney-client and attorney work-product privilege in both the election and documents cases, citing similar official disclosures about their existence. Judge Boasberg ruled last month that there had been sufficient public acknowledgement of the former, though not of the latter, to warrant disclosure. The Justice Department again curated a set of files, which the judge ordered posted on the public docket. We have not yet decided whether we will challenge any of the redactions or whether there might be additional responsive files not in this trove.
Some of these files are new, while many are the same ones from the October trove but with previously blacked-out portions now visible.
Here is a quick and dirty guide I put together about what is in each.
What’s in the new material versus what was in released last fall
| # in new, more fulsome set | # in original | description | Discussion |
| 22-gj-25 USCA 22-3073 | Probably Marc Short and Greg Jacob, who testified Oct 13, 2022 | ||
| 1 | Docket in J6 grand jury case 22-gj-25, 6 pages | ||
| 2 | 1 | Sept. 28, 2022, order from Howell, 3 pages, 22-gj-25 | A few words about a-c priv |
| 3 | 2 | Sept. 28, 2022, opinion from Howell, 40 pages, 22-gj-25 | Extensive discussion of a-c priv, esp pgs 30-36 which were blacked out in earlier version |
| 4 | 3 | Oct. 6, 2022 order, 2 pages, 22-gj-25 | A few words about a-c priv |
| 5 | 4 | Oct. 6, 2022, ruling, 8 pages, 22-gj-25 | |
| 22-gj-33 USCA 23-03002 | probably Cipollone and Philbin, who testified early Dec | ||
| 6 | Docket for a J6 grand jury case 22-gj-33 | ||
| 7 | 5 | Nov. 19, 2022, order, 4 pages, 22-gj-33 | A few words about a-c priv |
| 8 | 6 | Nov. 19, 2022, opinion, 41 pages, 22-gj-33 | Extensive discussion of a-c priv |
| 9 | 7 | Dec. 18, 2022, order, 2 pages, 22-gj-33 | A few words about a-c priv |
| 10 | 8 | Dec. 18, 2022, opinion, 10 pages, 22-gj-33 | Extensive discussion of a-c priv |
| 11 | 9 | Jan. 23, 2023, opinion and order, 6 pages, 22-gj-33 | A few words about a-c priv |
| 22-gc-39 USCA 23-3003 | One witness, maybe Ken Cuccinelli, who reportedly testified Jan 26? | ||
| 12 | Docket for grand jury 22-gc-39, 5 pages | ||
| 13 | 10 | Dec. 9, 2022, order, 2 pages, 22-gc-39 | A few words about a-c priv |
| 14 | 11 | Dec. 9, 2022, opinion, 40 pages, 22-gc-39 | Extensive discussion of a-c priv |
| 15 | 12 | Jan. 10, 2022, order, 2 pages, 22-gc-39 | A few words about a-c priv |
| 16 | 13 | Jan. 10, 2022, opinion, 10 pages, 22-gc-39 | Extensive discussion of a-c priv |
| 23-GJ-10, USCA 23-3035 and 23-3036 | docs case subpoenas to Corcoran and Little | ||
| 17 | Docket for subpoenas GJ42-17 and GJ42-69, 11 pages | ||
| 18 | March 20, 2023, hearing transcript, 38 pages, 23-gj-10 | mostly redacted but passage with a ruling from the bench denying stay pending appeal | |
| 23-gj-12 Smith report says this is 23-3043 | Post Jack Smith, one of two bulk cases for eight total remaining J6 executive branch witnesses | ||
| 14 | March 15, 2023, order, 3 pages, 23-gj-12 | ||
| 15 | March 15, 2023, opinion, 46 pages, 23-gj-12 | ||
| 16 | April 3, 2023, hearing transcript, 38 pages, 23-gj-12 | ||
| 23-gj-13 Smith report says this is 23-3049 | Post Jack Smith, the other of two bulk cases for eight total remaining J6 executive branch witnesses | ||
| 17 | March 25, 2023, opinion 18 pages, 23-gj-13 | ||
| 18 | April 10, 2023 hearing, 10 pages, 23-gj-13 |
With The New York Times, I have filed a Freedom of Information Act lawsuit in the Southern District of New York against the Justice Department seeking disclosure of the letters Attorney General Pam Bondi sent to Apple and Google assuring them that they would not be prosecuted for violating the law against providing support to TikTok unless its Chinese owner sells it. The letters prompted the two companies to restore access to TikTok in their smartphone app stores.
Notably, the executive order by President Trump declaring an enforcement delay and requiring DOJ to send those letters did not merely direct the government, as a matter of prosecutorial discretion, to not charge the companies with breaking that law. Trump also required Bondi to tell the companies that — somehow — “there has been no violation of the statute” for any activity that contravenes the statute during the enforcement delay period.
Trump cited no legal rationale for how he has the authority to actually nullify a law that Congress enacted and the Supreme Court unanimously upheld – a kind of monarchical prerogative power to suspend a law when the king decides that doing so would be in the public/Crown’s interest. The founders seemingly rejected the idea that American presidents would have such a power when they imposed upon that office a duty to take care that the laws be faithfully executed. So it will be interesting to see what Bondi actually told them.
The case has been docketed at 25-cv-4199. My thanks to David McCraw and Timothy Tai for their legal representation.
UPDATE: “Trump Claims Sweeping Power to Nullify Laws, Letters on TikTok Ban Show”
I have formally asked Judge James Boasberg, the chief judge of the Federal District Court in Washington, to unseal dockets, filings and judicial opinions related to fights over attorney-client privilege and attorney work product privilege during the investigations that led to Trump’s indictments in the election case and the classified documents case. My request has been docketed as a Miscellaneous matter, in re Donald J. Trump, at 25-misc-00008.
[cross-posted from the Facebook group True Fort Wayne History, from January 2024]
On the portage and “Glorious Gate”–
I’d like to pull something out of a friendly conversation I had with Steve Oberlin deep in the comments under his post about the watershed, because maybe it will be interesting to a wider audience. It is commonly said — including on the historical marker downtown on the site of the original Fort Wayne, which the Daughters of the American Revolution installed in 1934 — that the Miami called the portage “Glorious Gate.”
But that seems to be misleading to the point of being false.
There’s no historical evidence I am aware of that the tribe had any general habit of referring to the portage by that phrase. Rather we have a record of that phrase being used once: when Little Turtle was waxing a bit poetic about Kekionga, the longtime Miami capital village that had controlled the portage until 1791, when the US military destroyed it during the Northwest Indian War. The town was not on the portage itself, but rather downstream from it in what is now the city of Fort Wayne’s Lakeside neighborhood. The occasion of Little Turtle’s remark was during the 1795 “negotiations” for the Treaty of Greenville after Anthony Wayne’s conquest brought the war to an end.
In that treaty, Wayne forced the Algonquin tribes to cede most of what is now Ohio and various strategic points west of there for white control/settlement. The minutes record how Little Turtle fruitlessly implored Wayne not to force his tribe to cede a particular swath of land around the fort that Wayne had just built; the area Wayne wanted the US to formally takeover included the site of Kekionga, just across the river confluence from the new military outpost. Little Turtle told Wayne that the village had long been an important tribal crossroads — a “glorious gate” — as part of pointing out that when the French had earlier erected their own short-lived fort near the river confluence, the French didn’t ask the Miami to sell that land.
Wayne was unmoved and the final treaty included the Miami giving up ownership of the spot: “One piece six miles square, at or near the confluence of the rivers St. Mary’s and St. Joseph’s, where Fort Wayne now stands, or near it.”
As a phrase with historical roots, “glorious gate” is so evocative that people have clearly wanted to use it in positive settings — like a historical marker crafted with an agenda of promoting civic pride. But the actual circumstances in which it was uttered were obviously kind of ugly, so people have taken it out of context it to obfuscate those overtones.
[Cross posted from the “True Fort Wayne History” Facebook group]
On Swinney Park and whether it was the ritual site for Miami tribe “cannibalistic orgies” or was the “old torture ground” —
[ADDED for TLDRers: My tentative conclusion is that this local lore appears to be a myth which traces back to a speech delivered at that spot in 1843 for unrelated reasons, some b.s. embellishment the speaker made up to thrill his audience.]
A couple days ago Becky Osbun posted the century old pamphlet “Trip to Some of the Historic Spots of Fort Wayne” and in the comments several people raised eyebrows at the claim that Swinney Park “is on the site used by the Indians for their cannibalistic orgies in days of long ago.”
Also, I’ve got a copy of the 1933 News Sentinel drawn map of Fort Wayne on my wall and it labels the peninsula in the bend of the St. Mary’s River that is now Swinney Park as the “old torture ground.”
I wondered what the source is for these dark attributions and raised the q in the comments, but thought I’d post this here to get more attention.
I decided to see what I could find, and started by looking up terms like “Swinney,” “cannibalism” and “torture” in the index of Burt Griswold’s 1917 “Pictorial History of Fort Wayne,” which is the generally best and most comprehensive available compilation of historical materials. There was nothing about torture.
Griswold did cite accounts by several early European visitors to the area who recorded having heard about incidents of cannibalism. But all of them were in places other than what is now Swinney Park – for example, in Kekionga (Lakeside neighborhood) or outside one of the French forts. There was also one reference to the future Swinney Park that may be the origin story of this local lore, but the account was heard long after the fact on its own terms. If this is all there is behind the claim that that spot in particular was used for torture/cannibalism rituals, I am skeptical that it is true.
Specifically, in a footnote on Page 111, Griswold talks about “tales of cannibalism among the savages of the Maumee-Wabash valley” that were obtainable, and one of those he cited was the following: “During the course of his speech in Fort Wayne at the time of the opening of the Wabash and Erie canal in 1843, General Lewis Cass stated that the present Swinney park was the scene of cannibalistic feasts.”
I looked up Cass. He was born in 1782 in New Hampshire, but moved to Ohio as a young man and later was based in Michigan. He fought in the war of 1812, was appointed governor of Michigan and later was secretary of war under President Andrew Jackson. Cass then served as as a senator from Michigan and became the 1848 Democratic presidential nominee. He was big into Indian removal, and earlier in his career he had been involved in negotiating some treaties with tribes in what we now call the Midwest.
I looked up Cass’s speech celebrating the opening of the canal and found a copy here: https://ia800903.us.archive.org/…/canalcelebration00pub…
[here’s a picture from that file, and I’ll post the relevant excerpt from his remarks at the bottom of this post]
It was delivered at an event at “a shady grove on the farm of Colonel Sweeney.” At one point, he goes into a lurid aside about how the Miami tribe once had a “man-eating society” consisting of members of “a particular family” whose duty was “to eat such prisoners” the tribe handed over to them for that purpose, and he then says “its orgies were held upon the very spot where we are now.” While this practice eventually lapsed, he goes on to say, he once spoke to a Canadian who had witnessed the last such episode toward the end of the Revolutionary War; the supposed victim was a Kentucky settler the tribe had captured. Cass then says again that this event had taken place right where his audience was now standing: “Here where we are now assembled in peace and security, celebrating the triumph of art and industry, our countrymen have been thus tortured and murdered and devoured.”
So is that true? It’s 1843 and he’s making the claim that Colonel Swinney’s farm — where he just happened to be ask to deliver his remarks about the canal — was the specific site of cannibalistic rituals. By his account, he was not only not personally a witness to any such ritual there, but the last such purported incident had happened some 60 years earlier. If this dusty hearsay is the only account in the historical record that puts what is now Swinney Park as the specific site, I think we have to consider the strong possibility that he just made it up to embellish his speech and give his audience a little extra thrill.
Notably, Cass also claimed that during some earlier visit to the Fort Wayne area, he had personally conversed with the head of the man-eating family/society, whose name, he said, was White Skin. Griswold’s footnote suggests some corroboration for the idea that around this time — that is, around the 1830s/1840s — there was talk of how there had once been a cannibal native in the area named White Skin, although this citation does not say that White Skin lived or did his dining on what became Swinney Park specifically.
Specifically, Griswold quoted someone named E.F. Colerick, who wrote about the early days of Fort Wayne, as recalling that in 1836, he and an old Indian trader named Jean Baptiste Bruno had run across an elderly native woman whom Bruno told him was White Skin’s daughter, and they were “known as the man-eating family.”
I went looking for Colerick’s full account and found a slightly different version — published in 1891 — in which Colerick also said that White Skin and his family had lived on the Eel River, and described their last cannibalistic ritual as having taken place on a plateau on the east bank of the St. Joseph River, about a mile upstream from Fort Wayne and Kekionga. By this account, unlike Cass’s, that last event was around 1765, not toward the end of the Revolutionary War, and with a native victim, not a white settler victim. There’s no mention of the St. Mary’s river or the Swinney farm site in Colerick’s account of what Bruno told him.
https://archive.org/…/cannibalsofindia00grim_djvu.txt
I was skeptical at this point that Cass had even met White Skin, but then I found that that Cass had helped negotiate a treaty in 1814 that was signed by, among others, “Wabsea, or White Skin.”
https://treaties.okstate.edu/…/treaty-with-the-wyandot…
Still, based on all this, I don’t see any reason to credit the claim that what is now Swinney Park, specifically, was a designated torture ground or a site for cannibalistic rituals. However, if someone is aware of additional sources, I’d be interested in hearing about them! It’s a good (if that’s the right word for it) story, which would be consistent with Cass making it up to keep his audiences enraptured and then people repeating it until it took root as local lore. But for now it looks like this story about the park is a myth.
*
The excerpt from Lewis Cass’s speech:
Just after midnight this morning, the New York Times and I filed a lawsuit under the Freedom of Information Act seeking disclosure of the volume of former Special Counsel Jack Smith’s report about the Trump classified documents case. Here is the complaint.
Like many people, I have found zombie Twitter — Elon Musk’s X — to be increasingly unusable for the purposes that originally attracted me to it. Among many other degradations of the former Twitter experience, its algorithmic suppression of posts with news links significantly impedes my ability as a journalist to get a broader audience for and engagement with posts about my stories. This has been a problem for a couple of years, but only in the last month has a viable alternative emerged with the explosive growth of Bluesky. So for now I’ve shifted to that place, where my handle @charliesavage.
This move raises the question of what, if anything, to do about my now-dormant X account. I started posting on Twitter in 2008, and even if a lot of that was just ephemeral blather about sports or whatever, it feels weird to just nuke 15 years worth of posts that also contain discussion of news articles, detailed responses to critics whose attacks are still floating around the web, etc. Someone on Bluesky brought to my attention an open-source Github project, Tweetback, that allows one to post one’s downloaded archives. So I’ve done that here. Thanks to Zach Leatherman, the primary creator of that project, and to my son, a computer science major who helped me fix some glitches when rolling it out. (If you are thinking of trying this, here is the list of little problems we encountered, all of which were quick fixes once recognized.)
This is the next step in the ongoing experiment of stepping away from Twitter/X. I may eventually also delete all my posts there and shut down my account, but for now I’m leaving it up for three reasons. First, this will make it harder for anyone to successfully impersonate me on that platform, a real risk since the destruction of its verified identity system. Second, there is utility in keeping some original posts there to show their context — the downloaded archive does not show other people’s posts I was responding to or other people’s replies to my posts, and it cuts off the back ends of other people’s posts that I RT’d. Finally, there are on increasingly rare occasions still newsworthy posts there amid all the dreck, and having an open account can make it easier to see them.
Back in December 2020, the Privacy and Civil Liberties Oversight Board completed a report on the National Security Agency’s XKEYSCORE system, whose existence had come to light as part of the Snowden leaks. XKEYSCORE is a software program that N.S.A. analysts use to query the vast repository of stuff that the agency has sucked up, including through bulk collection of communications abroad or foreign-to-foreign stuff transiting the U.S. network under Executive Order 12333. The report was entirely classified at the time, but a few months later a Democratic PCLOB member, Travis LeBlanc, got declassified and released a lengthy statement basically saying the report was garbage, which I wrote about for the New York Times. Anyway, the agency has now released a declassified version of the report itself, though it is so heavily redacted that I don’t see anything newsy to write about in it that wasn’t brought to light in the flap over the LeBlanc statement in 2021. Here it is: