What Happened Today: December 14, 2023

Supreme Court to hear Jan. 6 case; Hamas to recognize Israel?; Scroll podcast

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The Big Story

The Supreme Court announced Wednesday that it would hear arguments in United States v. Fischer, a case challenging one of the laws at the center of several hundred Jan. 6 cases and Special Counsel Jack Smith’s criminal indictment of Donald Trump. 

The law in question is 18 U.S. Code §1512(c), which reads:

(c) Whoever corruptly—

1. alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

2. otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

The law, part of the 2002 Sarbanes-Oxley Act, was passed in the wake of the Enron scandal to prevent corporate accountants from destroying evidence to impede a federal investigation. But under President Biden, the Department of Justice has argued that the second clause permits it to charge anyone who “attempts” to “obstruct” or “impede” any official proceeding—such as the Jan. 6 Electoral College certification—with a felony under the statute. More than 300 Jan. 6 defendants have been charged with violating §1512(c)(2); one of them, Matthew Perna, committed suicide last year. Two of the four counts in Smith’s prosecution of Donald Trump—obstruction of an official proceeding and conspiracy to obstruct an official proceeding—relate to violations of §1512(c)(2). 

The DoJ’s interpretation of the law has raised serious concerns among civil libertarians and some federal judges. In a dissent from a 2-1 decision in April upholding the DoJ’s interpretation, D.C. Circuit Court Judge Gregory Katsas wrote that the department’s construction of the law was “improbably broad and unconstitutional in many of its applications” and that it criminalize “advocacy, lobbying, and protest” as long as prosecutors could meet the vague standard that the defendants had acted “corruptly.” In the Jan. 6 cases, prosecutors established “corrupt” intent on the part of people who entered the Capitol by, in one case, citing their social media posts—such as “CNN and the Left are just mad because we actually attacked the government”—and, in another case, pointing to the defendant’s mere presence on restricted grounds and “disorderly” behavior there. 

The defendant in United States v. Fischer, Joseph Fischer, was charged with three counts for entering the Capitol on Jan. 6, including a §1512(c)(2) obstruction charge. His lawyers have sought to have that case dismissed by arguing that the law was intended to apply only to the destruction of documents and other evidence, not to generic disruptive behavior. One Trump-appointed federal judge agreed and dismissed the case, but that ruling was reversed by a split decision of the D.C. Circuit Court of Appeals in April, setting up the current case before the Supreme Court.  

A decision from the court is expected in June, and it looks likely that it will rule in favor of Fischer—thus voiding hundreds of Jan. 6 cases and significantly undermining Smith’s prosecution of Trump, which is set to go to trial in March. As Lawfare’s Roger Parloff wrote in October, on the legal wrangling over §1512(c)(2), “Judges’ acceptance of the Justice Department’s interpretations of that law have been 100-percent correlated with the political party of the judge’s appointer.” Given the Supreme Court’s current makeup, it’s a safe bet that the DoJ will lose. 

IN THE BACK PAGES: Tablet News Editor Tony Badran on Iran’s sponsorship of the Oct. 7th attacks—and the Biden administration’s increasingly absurd denials

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The Rest

→Hamas officials may finally be feeling some pressure, if their recent public comments are any indication. Late Wednesday, Hamas leader Ismail Haniyeh said he was open to talks to end the war and discuss a “political path that secures the right of the Palestinian people to their independent state with Jerusalem as its capital.” Haniyeh also said that it was a “delusion” to believe that Hamas could be excluded from any postwar settlement in Gaza. Then, in an interview with Al-Monitor published Thursday, Hamas official Mousa Abu Marzouk floated recognition of Israel as a potential step toward ending the war. “You should follow the official stance,” he said. “The official stance is that the PLO (Palestine Liberation Organization) has recognized the state of Israel.” But don’t get too excited. As Haviv Rettig Gur points out on X, we’ve been here before:

Rather than a change of heart, what we’re seeing is likely a ploy by Hamas to bring the war to an end on favorable terms: Gaza under the control of a reunified Palestinian Authority, with Hamas—perhaps an allegedly “moderate” or “deradicalized” version of the group—as a junior partner. That would certainly fit with the messages coming out of the PA, whose prime minister said on Monday that the PLO’s “hearts and minds are open” to a reunion with Hamas, which he called a “basic pillar of the Palestinian national movement.” It could also be a tempting answer for the Biden administration, which has made clear that it expects a “revitalized” PA to govern Gaza on the way to a two-state solution when the war ends—and that it expects the war to end soon.

→Hamas’ claim to be the only legitimate governing force for the Palestinians may have received a boost from a new poll of Palestinian public opinion, which found that a majority of Gazans and an overwhelming majority of West Bank Palestinians still support the terror group. There’s a lot to explore in the poll, including that 57% of Gazans and 82% of West Bank Palestinians still view the decision to launch the Oct. 7 attacks as the “correct” one, and that Hamas leader Ismail Haniyeh would defeat PA President Mahmoud Abbas 78% to 16% in a potential election. But one thing jumped out at us: A nearly two-thirds majority of Palestinians still reject the two-state solution. 

That isn’t new but comes as the United States declares that a two-state solution is the only acceptable outcome of the conflict, and as the Western world is reacting with outrage to a statement by Israeli Ambassador to Britain Tzipi Hotovely, who told Sky News on Wednesday that Israel’s answer to the question of a state for the Palestinians was “absolutely no.” Excuse us while we faint. Of course, lost in the ensuing denunciations was a rather obvious question: If the Israelis don’t want a two-state solution and the Palestinians don’t want a two-state solution, then who is the two-state solution really for?

Read the poll here: https://pcpsr.org/sites/default/files/Poll%2090%20English%20press%20release%2013%20Dec%202023%20Final%20New.pdf 

→The IDF released video on Thursday of about 70 Hamas fighters surrendering to the IDF outside of Kamal Adwan hospital in northern Gaza, which can be viewed here:

Two things struck us. Number one is that the fighters all appear to be wearing civilian clothing. Number two is that 70 gunmen are emerging from a hospital. 

→In a new episode of The Scroll podcast, Scroll editors Jacob Siegel and Park MacDougald discuss the progressive NGO complex funding the United States’ anti-Israel protests:

How the NGO Complex Funds the Anti-Israel Cause

→Judge Tanya Chutkan indefinitely paused proceedings in Special Counsel Jack Smith’s obstruction case against Donald Trump, pending Trump’s appeal of a decision rejecting his presidential immunity claims. The case is scheduled to go to trial on March 4, but that date will become unworkable if the appeals process drags out. 

→The House Committee on Ways and Means published a transcript of the latest testimony of IRS whistleblowers Gary Shapley and Joseph Ziegler, who have accused the IRS and the DoJ of undermining their investigation of Hunter Biden’s tax crimes in order to protect President Biden. The testimony included this remarkable exchange between the witnesses and Congresswoman Terri Sewell (D-AL), highlighted by Miranda Devine in the New York Post:

Sewell: Can either of you point to information, facts, or information that you have uncovered as whistleblowers that directly prove[s] that Joe Biden has done something illegal, yes or no?

Shapley: There is evidence that exists.

Sewell: I just—it is yes or no.

Shapley: Yes, there is.

Sewell: Direct, direct evidence. Please show me the direct evidence that is not being refuted by your supervisor or by other people that actually proves that Joe Biden did something unlawful, illegal.

Ziegler obliged: So in exhibit 1I, Hunter Biden states in his email that his original agreement—

Sewell cuts Ziegler off and then reclaims her time, but Ziegler later goes on to cite a series of emails and WhatsApp messages that he believes implicate the president in Hunter’s dealings with Chinese energy giant CEFC. But, Ziegler says, “we were never allowed to go down those investigative routes.”

Read Devine’s column here: http://tinyurl.com/3dmrvbum

→Spot the difference:

Passage 1:

While the Biden administration has historically maintained a steadfast commitment to Israel’s security, Harris’s recent discussions with friends who have personal ties to Gaza have prompted her to call for a more balanced and compassionate approach.

Passage 2:

Harris has suggested that conversations with friends have influenced her thinking about the war. In London last month, she told reporters that she had a friend who had lost relatives in Gaza to the war.

The first is from ChatGPT, the second is from a Thursday article in Politico, “Kamala Harris pushes White House to be more sympathetic towards Palestinians.” On Wednesday, Politico publisher Axel Springer announced a deal with OpenAI that will allow ChatGPT to train on content from the company’s various media properties, which include Business Insider and German tabloid Bild. The deal will provide Axel Springer with “tens of millions of euros a year,” according to a report in the Financial Times. 

→Federal Reserve Chair Jerome Powell signaled on Wednesday that the Fed would begin cutting interest rates in 2024, saying that the benchmark rate was “at or near its peak for this tightening cycle.” The comments came after the Fed published its latest “dot plot,” which showed that Fed officials expect about 75 basis points’ worth of rate cuts by the end of next year. In plain English, that means that the target band will go from 5.25% to 5.5% today to between 4.5% and 4.75% in 2024, with further cuts expected in 2025. 

→Last week, a group of anonymous White House interns signed a letter criticizing Joe Biden for supporting the “ongoing genocide of the Palestinian people.” But who was actually behind the letter? According to a Wednesday report in Politico, a woman named Thara Nagarajan dropped a link to a Google Form for the letter into a group chat for White House interns, urging those who “stand with Palestine” to sign the form and promising that their identities would be protected. After sharing the link, Nagarajan immediately left the chat. Here’s the weird part: There is no White House intern named Thara Nagarajan, and none of the other interns knew who she was or how she got in the chat. Politico was unable to confirm her identity. 

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TODAY IN TABLET: 

The Brief Reign of ‘King Dropper,’ the Lower East Side Gang Leader, by Allan Levine

At 28, Nathan Kaplan was a legend. Four years later, he was dead.

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SCROLL TIP LINE: Have a lead on a story or something going on in your workplace, school, congregation, or social scene that  you want to tell us about? Send your tips, comments, questions, and suggestions to scroll@tabletmag.com.

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Iran Sponsored the October 7 Massacre. America Paid for It.

A chronicle of the Biden administration’s increasingly absurd attempts to hide its complicity in the worst mass killing of Jews since the Holocaust

By Tony Badran

It may strike some observers as curious, and others as unimaginably evil, that only weeks after Hamas slaughtered over 1,200 Israelis on Oct. 7, the Biden administration awarded sanctions waivers worth $10 billion to Iran, the primary external sponsor of those attacks. The waiver, which allows Iran to collect money from the sale of electricity to Iraq, an arrangement that further deepens Iranian control of that country, came with an added bonus: Iran would be allowed to convert the funds into euros which it could spend immediately, without the usual requirement that the money remain in escrow inside Iraq. The prospect that Iran might immediately spend the money it receives on continuing to target U.S. bases in Iraq and Syria doesn’t appear to have disrupted the deal, either.

Which is strange. In the informal but apparently binding relationship between the Biden administration and the Iranians, minor events like a horrific, large-scale terror assault on a close ally, the kidnapping of American children and burying them in underground tunnels, and the regular maiming and occasional killing of U.S. military personnel on American bases in the region can hardly be permitted to interfere with the goal of ensuring that billions of dollars reach Iran every month, in order to buttress the world’s largest state sponsor of terrorism.

Showing its awareness that there is something obviously bizarre—not to mention hideously amoral—about this relationship, the administration has gone to absurd levels to downplay Iran’s role in the massacre. According to The Wall Street Journal, hundreds of Hamas terrorists who took part in the attack received specialized training in Iran. Meanwhile, reporting in Israel indicates that Tehran was involved at the operational level to the extent that it determined the actual timing of the operation, moving it to October from its originally planned date during Passover. These reports are the latest in a series that began to come out immediately after Oct. 7, that have directly implicated Iran in various stages and aspects of the terrorist onslaught, in addition to its already well-understood role as Hamas’ main funder, arms supplier, and political sponsor.

The detailed reporting on Iran’s direct involvement in the Oct. 7 massacre that has appeared in The Wall Street Journal, The New York Times, and in the Israeli press stands in stark contrast with the public assertions of the Biden administration about the lack of any Iranian involvement. The administration staked out its position on the matter from the very day of the assault, which ostensibly took both Israel and the U.S. entirely by surprise: “On Iran’s involvement, I mean, look, specifically about what happened today, it’s too early—too early to say whether, you know, the state of Iran was directly involved or planning and supporting,” a senior administration official told reporters on a background call on Oct. 7. Asked again, the senior official gave a more specific answer: “Again, on that question, what I said: We don’t have anything to indicate Iran was involved in this specific—what is unfolding now.”

The weasel language the senior official used in both answers set the tone for subsequent pronouncements and leaks on the subject. Namely, that no “direct” evidence whatsoever existed that suggested “the state of Iran” was “directly” involved in planning and supporting this “specific” attack. In other words, the Biden administration understood from the day of the attack onward that its role was to serve as Iran’s lawyer, minimizing Iran’s involvement at every turn, in order to protect the U.S.-Iranian relationship from American legislative and public opinion.

So when the WSJ reported on Oct. 8 that Iran helped plan the operation—including in multiple meetings in Beirut with senior Revolutionary Guard (IRGC) officials, all the way to giving the green light a week before the attack—administration officials sprung into action, like any hardened Bronx defense lawyer would when informed that a notorious client with a rap sheet as long as your arm had apparently gone on a wild rampage, murdering well over a thousand perfectly innocent people in cold blood. “We don’t have any information at this time to corroborate this account,” one official told the paper. In an interview with CNN, Secretary of State Antony Blinken robotically played back the buzzwords from the day before: “In this specific instance, we have not yet seen evidence that Iran directed or was behind this particular attack, but there is certainly a long relationship.” (Emphasis added.)

Over the week following the WSJ report, administration officials drilled these stock talking points at every opportunity. They also began adding color to their story. Asked on Oct. 9 if the administration has any evidence to support the report’s revelations, NSC spokesman John Kirby jumped straight into his Sgt. Schultz routine: “Right now, none. We're looking very hard to see if there is corroborating evidence that proves that Iran was a participant in these attacks, but we just haven’t seen it.”

Then Kirby leaned on a talker the administration deemed ultraclever: “But, look, I mean, make no mistake, there's a degree of complicity here just because Iran's been supporting Hamas now for many, many years, weapons, tools, capabilities, training.”

Sure, there’s a “degree of complicity” when a state sponsor, for the last 30 years, has financed, armed, trained, and hosted the leadership of a Palestinian terror army, including by establishing a joint operations room in Lebanon which oversaw the last war in Gaza in 2021. But, Kirby added, “in terms of the specific series of attacks we have seen … we just don’t have direct evidence.” (Emphasis added.)

I see nothing! Nothing!

Because that’s how the patron-client relationship works, you understand. Iran, the state sponsor without whose material and logistical support Hamas would not be able to function, is naturally kept in the dark on the most sophisticated and consequential terrorist operation of the group’s entire existence; an attack that has a very direct bearing on the state sponsor’s regional position.

Yes, that’s definitely how it all went down. In all those meetings in Tehran, Beirut, and Damascus with senior IRGC and Hezbollah officers—that is, the people who pay, train, equip, and host the Hamas cadres—the leadership of the Palestinian group hid this massive operation from everyone they talked to, including Esmail Qaani, the head of the IRGC-Quds Force, who just happened to be in Beirut days before the attack and then traveled there again the day after it was executed. That was just another in a series of extraordinary coincidences that together suggest, well, absolutely nothing.

In fact, it was just the tail wagging the dog, Team Biden retorted. A senior Biden administration official, reacting to the WSJ article, which cited Hamas and Hezbollah sources, broke down the 3D chess move: “Hamas and Hezbollah have an interest in getting Iran involved, so you can’t necessarily take what they’re saying at face value.” Dig? Not just Hamas, mind you, but Hezbollah, too. Hezbollah, the extension of Iran in Lebanon, was trying to embroil Iran. Circles within circles, my friends.

But just because we see nothing and know nothing doesn’t mean we’ll stop looking, Kirby reassured the press—even though, to be honest with you, so far, despite looking at “all the information streams” of the U.S. government, nothing has turned up. “We haven’t seen hard, tangible evidence” that Iran was “directly involved in participating in or resourcing and planning these sets of complex attacks,” Kirby said (emphasis added); at least not “wittingly involved.” Hell, even the Israelis “have publicly said they don’t see the—quote, unquote—smoking gun,” the NSC spokesman added, with what the administration clearly believed was a winning talking point.

And what would that “smoking gun” look like? Kirby helpfully explained: “We haven't seen anything that tells us they knew specifically date, time, method, that they were witting to this. We haven't seen anything that tells us they specifically cut checks to support this set of attacks or that they were involved in the training and that obviously this required quite a bit of training by these terrorists or that they were involved in any directing of the operation.” We haven’t seen any check with Khamenei’s own signature on it, or a memo in his handwriting that the tens of millions of dollars that Iran sent Hamas were meant specifically for this specific attack. I can categorically tell you that none of the receipts in our intelligence streams has “Al-Aqsa Flood murder expenses, 10/7” stamped on it. Sorry.

The White House couldn’t catch a break. Just barely a week after the WSJ report, a second report came out, this time in The New York Times, corroborating the Journal’s reporting: The Iranians “helped plan the attack starting over a year ago, trained militants and had advanced knowledge of it.” The NYT added that Hezbollah trained Hamas paragliders in Lebanon, while in Syria, the Hamas members were given training on raiding Israeli communities and taking civilian hostages.

Proof? By then, the Biden administration had rolled out another talker. They were so pleased with this one they even took it to brief members of Congress. Morgan Muir, a deputy director at the Office of the Director of Intelligence, told lawmakers the administration had gone back and taken another look at the intelligence, and they collected “multiple pieces of intelligence”—“good intelligence,” no, make that, “exquisite intelligence”—contradicting the news reports about Iranian involvement. Not only did the Iranians not “direct” or “orchestrate” the attack, but, in fact, “key Iranian leaders” were surprised by it.

To be clear, the intelligence assessment did say that “Iran likely knew that Hamas was planning operations against Israel.” But it had no idea about “the precise timing or scope of what occurred,” which is something the administration was looking into, as State Department spokesman Matt Miller reassured reporters, in order to determine, “whether at least there were some in the Iranian system who either had a clear sense of what was coming or even contributed to aspects of the planning.”

The tell was the term “scope,” which was transparently a way for the administration to give itself some additional cover. Paying billions to the regime behind the attack that resulted in the barbaric massacre of more than 1,200 Israelis and more than 30 Americans—many of whom, including babies, were beheaded, burned, baked, tortured, raped, and taken hostage—is an embarrassment for the administration, to be sure. But their reaction would have been different had the attack resulted, say, in the killing and kidnapping of IDF soldiers, or even the murder of a few “settlers.” By introducing the category of “scope,” the administration was distancing the Iranians from their client’s barbarism, and in so doing, clearing themselves of the stain.

Within a week, the administration was peddling this gibberish as established fact: There was now “a growing body of evidence that neither Hezbollah nor Iran helped plan such a major attack by Hamas.” (Emphasis added.) This is also what the administration was telling European countries. According to a French press report, the American debriefing “repudiates the existence of any co-organization of the October 7 offensive with Iran and the Lebanon-based Hezbollah.”

Weirdly, despite the administration’s supposed tsunami of evidence clearing Iran, on Oct. 25 the WSJ reported that in the weeks leading up to Oct. 7, some 500 members of Hamas and Palestinian Islamic Jihad “received specialized combat training in Iran.” The training was overseen by officers of the Quds Force, the external operations arm of the Revolutionary Guard. “Senior Palestinian officials and Iranian Brig. Gen. Esmail Qaani, the head of the Quds Force, also attended.”

Look, retorted U.S. officials on background: Iran trains its proxies all the time, both in Iran and elsewhere in the region. Listen to me when I tell you there are “no indications of a mass training right before the attack.” (Emphasis added.) So, maybe the Iranians did train 500 Hamas and Islamic Jihad fighters in the weeks before the attack. But so what? Who is to say that this training was “specifically” for the Oct. 7 attack. Perhaps the Iranians believed that they were training Hamas for a different attack. Perhaps they were simply eager to introduce the young men of Hamas to the healthy recreational activity of paragliding, which is also enjoyed by U.S. Ambassador to Lebanon Dorothy Shea. Without a signed check from Khamenei, it’s impossible to be absolutely, 100% sure, right?

That Qaani reportedly supervised the training is in line with his public itinerary in Lebanon and Syria in the months and weeks preceding the attack. In late September, Qaani made a stop in Syria, where he oversaw a joint military drill with the Syrian army. Then, on Oct. 2, he reportedly entered neighboring Lebanon, where he held the meeting with Hezbollah and Hamas, in which he was reported to have given the go-ahead for the attack.

What’s notable about the reporting on Qaani’s role is the picture it paints of Iran’s hands-on involvement during all stages of the planning down to the timing of the attack. That picture contrasts with the administration’s insistence on only a “broad complicity” and general Iranian support. One might assume, perhaps not unreasonably, that Iran would be involved at the level of strategic decision-making, resourcing, planning, and giving the final approval for an operation (like, say, the 1983 Beirut bombings) to proceed within a certain timeframe, while leaving the determination of the exact day to the tactical commanders. That the signs point to close Iranian involvement even at the tactical level shouldn’t be surprising. After all, that level of Iranian participation is the point of the IRGC-led Joint Operations Room in Lebanon, where Qaani is said to have been constantly present since Oct. 8.

In November, an Israeli news report claimed that the Iranians determined the date of the Oct. 7 attack. Initially, it said, the plan was for it to take place during Passover. However, the Iranians made the call to move the date closer to the anniversary of the Yom Kippur War. The information was obtained from interrogations of Hamas prisoners who took part in the attack, although the degree of its reliability is not yet clear. The author of the report speculated that the reason the Iranians pushed back the date had to do with then-ongoing hostage ransom negotiations with the Biden team, and the unfreezing of $6 billion to Iran as part of the deal.

What this speculation overlooks, however, is that, in the end, Iran greenlighting the attack did not in fact hinder further payments by the Biden administration. The same goes for Iranian-commanded attacks against U.S. bases and facilities in Iraq and Syria, which have only increased. By March 2023, there had been 83 attacks since the Biden team came to power. Since mid-October, there have been 82 attacks.

Team Biden’s overriding concern since Oct. 8 has been to safeguard its arrangement with Iran, which means extending a protective umbrella to Tehran’s Lebanese equity and working to pause the Israeli operation in Gaza—an explicit Iranian demand. That the price of this arrangement has been paid in Israeli and American blood doesn’t seem to bother the Biden administration one bit, even if the quantities of blood might have been a bit higher than expected.