The indictment is here. The defendants, including Trump, have until August 25 to surrender for arraignment.

Along with Trump, 18 other coconspirators are also charged for various sub-schemes within the overall attempt to corruptly overturn the Georgia presidential election in 2020, so I’ll take them as a few different sections.

Trump’s charges

Trump gets 13 charges in this document. Here’s what they are:

1. Violation of the Georgia RICO Act (count 1)

This is basically an umbrella charge that covers the whole corrupt scheme. Everyone charged in this indictment is also charged with this offense.

2. Solicitation of violation of oath by a public officer (count 5)

This charge is for pressuring the Speaker of the Georgia House of Representatives to call for a special session to appoint false electors on December 7, 2020.

3. Conspiracy to commit impersonating a public officer (count 9)

This is for causing various individuals to falsely represent themselves as presidential electors with the intent to misdirect the January 6 count.

4. Conspiracy to commit forgery in the first degree (count 11)

This is for the document "Certificate of the votes of the 2020 electors from Georgia" fraudulently certifying a set of Trump electors for the state, to be sent to the Electoral Count in the Joint Session of Congress.

5. Conspiracy to commit false statements and writings (count 13)

This relates to the same document, but this charge is specifically for the false attestation in it: "we the undersigned, being the duly elected and qualified Electors for President and Vice President of the United States of America from the State of Georgia, do herby certify the following".

6. Conspiracy to commit filing false documents (count 15)

For conspiring to file that false certification with the Chief Judge of the Northern District of Georgia (as required by the certification process), which is the overt act required for that charge.

7. Conspiracy to commit forgery in the first degree (count 17)

For the commissioning and creation of a document titled "RE: Notice of Filling of Electoral College Vacancy", to be submitted to the electoral count process, to falsely claim and co-opt the authority of the elected presidential electors

8. Conspiracy to commit false statements and writings (count 19)

This is for the same document, but this charge attaches to false elector David Shafer and Shawn Still’s titles as represented on that document. The document named Shafer as “Chairman of the 2020 Georgia Electoral College Meeting”, and named Still as “Secretary of the 2020 Georgia Electoral College Meeting”.

9. Filing false documents (count 27)

For causing the creation of a document by John Eastman, titled "Verified complaint for emergency injunctive and declaratory relief", which was filed in Trump v Kemp. That document contained multiple knowingly-untrue statements, including:

• "as many as 2506 felons with uncompleted sentences voted"

• "at least 66,247 underage people voted”.

• “as many as 10,315 or more dead people voted”

10. Solicitation of violation of oath by public officer (count 28)

Pressuring Georgia Secretary of State Brad Raffensperger (specifically, the Trump phone call asking him to find votes), and asking Raffensperger to send a falsely certified set of Trump electors to the Joint Session of Congress.

11. False statements and writings (count 29)

Various knowingly false statements made to Raffensperger and his staff during those calls

12. Solicitation of violation of oath by a public officer (count 38)

For sending Raffensperger a letter on 17 Sept 2021 (months after Biden was inaugurated) soliciting him to "decertify the Election, or whatever the correct legal remedy is, and announce the true winner"

13. False statements and writings (count 39)

This is for that same letter, but specifically for this false claim inside it: "As stated to you previously, the number of false and/or irregular votes is far greater than needed to change the Georgia election result".

Who else was charged?

Along with Trump, 18 other codefendants are charged. Some of these names are fairly well known. Others a bit less so.

Let’s break them down by group. (Some names appear in multiple groups):

The Core Conspirators:

• Rudy Giuliani (lawyer)

• John Eastman (lawyer)

• Ray Smith III (lawyer)

• Kenneth Chesebro (lawyer)

• Jenna Ellis (lawyer)

• Robert Cheeley (lawyer)

• Sidney Powell (lawyer)

Corrupting the U.S. Department of Justice to falsely allege election fraud:

• Jeffrey Clark (ex-assistant attorney general)

• John Eastman (lawyer)

The Fake Elector schemers:

• Michael Roman (GOP strategist)

• David Shafer (GA Republican Party Chair)

• Shawn Still (Georgia State Senator)

• Cathleen Latham (former Coffee County GOP chairwoman)

The Raffensperger call:

• Mark Meadows (Former White House Chief of Staff)

Attempts to corruptly influence Ruby Freeman:

• Stephen Lee (Illinois pastor)

• Harrison Floyd (“Black Voices for Trump” leader)

• Trevian Kutti (publicist)

Stealing the ballot machines from Coffee County:

• Sidney Powell (lawyer)

• Cathleen Latham (former Coffee County GOP chairwoman)

• Scott Graham Hall (bail bondsman)

• Misty Hampton (former Coffee County elections supervisor)

The Main Events

The first charge is under Georgia’s RICO law, which acts an umbrella charge for the whole scheme. Everyone is charged with it, and it details everything. But the other charges break down by law, rather than by event, and apply only to subsets of the alleged conspirators per charge, so let's regroup them to make them a bit more understandable:

1.False testimony to the Georgia Senate (counts 2-4)

This was at the Georgia Senate Judiciary Committee on 3 Dec 2020. This intended to influence the proceeding (count 2), and was attended by Rudy Guiliani, John Eastman, Jenna Ellis, Ray Smith III. Giuliani made false claims about mail-in ballot fraud and Dominion Voting Systems (count 3). Ray Smith III made false statements about how many felons, underage people, unregistered voters, and dead people voted in the election (count 4).

2.Pressuring the Georgia Speaker of the House to call for a special session to appoint presidential electors (counts 5)

On the 7th of December, 2020, Trump placed a call to Georgia Speaker of the House of Representatives David Ralston and discussed holding a special session of the Georgia General Assembly, whose purpose would be to falsely certify a new set of electors to be submitted to the U.S. Electoral Count Joint Session in Congress.

3.False testimony to the Georgia House (counts 6-7)

There was also hearing at the Georgia House Governmental Affairs Committee (charge 6), where Giuliani made false claims that Fulton County election workers were stealing votes and passing around USB sticks (count 7)

4.The False Electors (counts 8-19)

David Shafer, Shawn Still, and Cathleen Latham are all indicted for their role in the scheme to have 16 false electors (of which Shafer, Still, and Latham were three) to falsely certify the Georgia presidential election for Donald Trump and to fraudulently submit that certification to the Electoral College. Michael Roman, a political consultant, is also indicted for his role in it.

The false electors represented themselves as real electors (count 8) and created a false election certificate (count 9, 10, 11, 12, 13) to send to be counted at the January 6 tabulation at the Joint Session of Congress (count 14, 15), as well as a document titled “RE: Notice of Filling of Electoral College Vacancy“ (count 16, 17, 18, 19).

The certificate and accompanying document can be read here.

5.The attempt to influence Ruby Freeman’s testimony (counts 20-21, counts 30-31)

Ruby Freeman, an election worker, and her daughter Wandrea ArShaye “Shaye” Moss were substantially harassed through lies spread by Donald Trump and his associates. This harassment originated with false social media claims that Freeman had stayed to count ballots on election night after observers had left, identifying Freeman. The claims were investigated by Georgia and found to be unsubstantiated.

Stephen Lee tried to influence Ruby’s witness testimony (count 20, 21). Later, Stephen Lee, Harrison Floyd, and Trevian Kutti tried again (count 30, 31)

6.The (unsent) DOJ letter claiming fraud in the Georgia election (count 22)

Between 28 Dec 2020 and 2 Jan 2021, Jeffrey Clark wrote a letter saying DOJ had “identified significant concerns that may have impacted the outcome of the election in multiple States, including the State of Georgia“. He sent this to then acting-attorney general Jeffrey Rosen (count 22), who did not allow it to be published.

This letter can be read here.

7.False Testimony to the Georgia Senate (counts 23-26)

Another hearing on 30 Dec, attended by Rudy Guiliani, Ray Smith III, and Robert Cheeley (count 23). Guiliani said false things about how many felons and dead people voted (count 24). Ray Smith said false things about how many people had voted illegally (count 25). Robert Cheeley said false things about ballots being multiple-counted, and poll workers leaving because of a watermain break at the State Farm Arena (count 26).

8.False statements in Trump v Kemp (count 27)

During the Trump v Kemp lawsuit, Eastman wrote a document titled “Verified Complaint for Emergency Injunctive and Declaratory Relief” alleging major fraud in the Georgia election. It contained a lot of false statements (count 27).

The Trump v Kemp documents can be read here.

9.The Raffensperger call (counts 28-29)

In a call on Jan 2, Trump called Georgia Secretary of State Brad Raffensperger to ask him to “find” 11,780 votes (count 28). The audio was later leaked. This charge is the only charge (other than the RICO charge) that applies to former White House Chief of Staff Mark Meadows. Trump made lots of false statements on the call (count 29).

The full audio of this call can be heard here. A transcript of it can be found here.

10.The ballot machine theft from Coffee County (counts 32-37)

Sidney Powell commissioned and paid for SullivanStrickler LLC to travel to Coffee County for the purpose of tampering with the ballot machines. When they got there, Cathleen Latham (Coffee County GOP chairwoman), Scott Hall (bail bondsman), and Misty Hampton (elections supervisor) aided and abetted that effort (count 32, 33, 34, 35, 36, 37).

A detailed description of the charged events in Coffee County is available here.

11.Hoping to rollback the election long after Biden was inaugurated (counts 38)

On 17th September 2021, Trump wrote and published a letter to Raffensperger that claimed the number of irregular votes was enough to change the result (count 39) and that he should “decertify the Election, or whatever the correct legal remedy is, and announce the true winner“ (count 38).

This letter can be read here.

12.Perjury during investigation of the false electors

The District Attorney interviewed at least two of the false electors. David Shafer made false statements during his interview in April 2022 (count 40). Robert Cheeley made false statements during his interview in September 2022 (count 41).

NBC news has a new story: “Former U.S. officials have held secret Ukraine talks with prominent Russians”, including Russian Foreign Minister Lavrov.

The lede reads as follows:

A group of former senior U.S. national security officials have held secret talks with prominent Russians believed to be close to the Kremlin — and, in at least one case, with the country’s top diplomat — with the aim of laying the groundwork for potential negotiations to end the war in Ukraine, half a dozen people briefed on the discussions told NBC News.

In a high-level example of the back-channel diplomacy taking place behind the scenes, Russian Foreign Minister Sergey Lavrov met with members of the group for several hours in April in New York, four former officials and two current officials told NBC News.

On the agenda of the April meeting were some of the thorniest issues in the war in Ukraine, like the fate of Russian-held territory that Ukraine may never be able to liberate, and the search for an elusive diplomatic off-ramp that could be tolerable to both sides.

Sitting down with Lavrov were Richard Haass, a former diplomat and the outgoing president of the Council on Foreign Relations, current and former officials said. The group was joined by Europe expert Charles Kupchan and Russia expert Thomas Graham, both former White House and State Department officials who are Council on Foreign Relations fellows.

The story is getting a lot of traction online, but it’s mostly getting traction for the wrong reasons.

First things first, this is not real backchannel diplomacy. As Dan Drezner notes in his excellent post “Please Stop Breathlessly Reporting Every Unofficial U.S. Interaction with Russia, Please”, the former U.S. officials here are not particularly close to the current U.S. administration. As Drezner writes: “Graham, Long, and Haass are Republicans who have served in GOP administrations; Kupchan is an academic”.

Second, although the participants apparently briefed the White House National Security Council after the talks, the NSC has explicitly disavowed the talks:

The discussions have taken place with the knowledge of the Biden administration, but not at its direction, with the former officials involved in the Lavrov meeting briefing the White House National Security Council afterward about what transpired, two of the sources said.

At best, the White House seems pretty annoyed at the whole thing. The U.S. can’t stop U.S. citizens talking with foreign governments1, but that doesn’t mean they like or endorse those interactions either.

Drezner is right: the talks are not backchannel diplomacy, and folks should, for the most part, calm down about it.

But if the talks are not backchannel diplomacy, why did Lavrov agree to it? And this, to me, is the much bigger story here, and one that everyone seems to be missing: This isn’t diplomacy. It’s Haass and his colleagues being played by the Russian Ministry of Foreign Affairs in a game they don’t seem to fully understand.

First things first, these talks have directly caused headaches for the U.S. in two separate directions. For people reading the story who (wrongly) read it as Haass et al speaking for the U.S. administration, this leads to the mistaken impression that the U.S. is quietly abandoning its loud commitment to not hold “talks about Ukraine without Ukraine”. Several Ukrainians have clearly have read the story this way, and are now (wrongly) upset at the U.S. administration for holding talks about their future behind their backs.

Correctly reading the story as Haass et al speaking despite the U.S. administration also invites two different cognitive traps. It encourages the (misleading) impression that a diplomatic solution to the conflict is just around the corner, if only the Biden administration would permit it—after all, here are some other prominent Americans able to “negotiate”. And it gives the mistaken impression that the Biden administration is not talking to Russia, thereby encouraging the Russian-sponsored narrative that the U.S. is belligerently opposed to peace when Russia is amenable to it; a bizarre inversion of the reality. On that second point specifically, the U.S. maintains regular open communications with its counterparts in Moscow. Politico recently reported, for example, that “[a]n administration official confirmed the backchanneling with Moscow to West Wing Playbook, emphasizing that such open channels are routinely used when officials on either side have important messages to convey” (emphasis added).

But there’s a deeper reason why Lavrov was so willing to take this meeting, and it’s a risk inherent to “Track 1.5” meetings between official delegations and unofficial ones. It’s that fake negotiations operate in a framework that is deceptively unrepresentative of real negotiations, and which consistently lead to the official side steamrolling the non-governmental side, and the non-governmental side going home and immediately laundering an unusually friendly paper or article under their supposedly neutral and well-credentialed titles.

And that’s exactly what’s happened here. Shortly after their meeting with Lavrov, Haass and Kupchan cowrote an article for Foreign Affairs, titled “The West Needs a New Strategy in Ukraine: A Plan for Getting From the Battlefield to the Negotiating Table”. The article did not mention their meeting with Lavrov, and despite a brief overture in support of increased equipment transfers to Ukraine at the start, the article lays out a “peace plan” for Ukraine and Russia that is (unwittingly) heavily distorted towards Russian talking points and dismissive of Ukrainian redlines.

It’s a bit complicated to parse out exactly why that is, so let’s unpack it a bit.

Ceasefire agreements are always rough. Except in the vanishingly rare cases of unconditional surrender and total defeat of one side, ceasefires always strike a difficult bargain where all parties to the conflict are unhappy but can ultimately live with the result. Both sides have to make tough decisions about previously-unacceptable terms to trade in exchange for peace, and both sides have to weigh the emotional, political, and actual costs of the aggregate concessions on their side versus the other. That’s heavily shaped both by battlefield realities and by political priors brought into the negotiating room.

When Ukraine, supported by the United States and its other allies, eventually sues for peace against Russia, the Russian delegation will try to minimize its own concessions and extract maximal concessions in response. The Ukrainian delegation will do the reverse. The negotiations will iterate over several rounds towards a middle-ground, trading terms until all sides are able to stomach the result. This is hopefully not a controversial observation: It’s true of all ceasefires, regardless of the participants.

That eventual agreement will be emotionally, politically, and actually costly for Russia. It will also be costly for Ukraine. Ukraine will propose one settlement. Russia will propose another. Ukraine will counteroffer; Russia will counter-counter offer, and so on, iterating inwards. If a middle ground is reachable, it will be signed. If it is not, the war will continue until a later date when the process can continue with the benefit of updated battlefield- and political-realities in the next iteration.

I cannot stress this enough: It’s very easy to get to a ceasefire if you don’t care about the terms, or are unwilling or unable to accurately weigh them for both sides. The terms of the eventual ceasefire are the whole enchilada. Gaming your way to a peace deal is not impressive or useful absent a robust analysis of whether the terms are actually acceptable to the actual parties to the conflict in the real world. To belabor this point, here’s a dumb peace deal that would end the war tomorrow with obviously unacceptable terms: Ukraine surrenders unconditionally, and while we’re at it, so does every other country in Europe, all agreeing to replace their governments with ministers appointed in Moscow. And for good measure the United States gives them Alaska and hands over 80% of its GDP for the next decade too, why not. See? Super easy. War over in an afternoon. But obviously also very stupid. It’s easy to come up with terms acceptable to one side and declare the project for peace a big success. It’s far harder to come up with terms that hold weight in the real world, especially without the state apparatus to fire-test them accurately.

And this leads us to the problem here. Haass et al are not actually negotiating with Russia. They are negotiating against themselves. They do not speak for Ukraine or for the United States. Lavrov has no incentive to moderate any of his country’s terms in response to their hypothetical concessions, and every incentive to talk up their own advantages and the non-negotiability of their own terms. Lavrov knows this fake negotiation isn’t going to lead to an actual peace deal, so playing a maximalist hardball game is free and easy. Moreover, fake-negotiating in good faith yields a later advantage against Moscow in the real negotiation by revealing their hand too early. So of course he will fake-negotiate in bad faith. It’s the only sensible thing to do in that situation.

For the non-governmental delegation the opposite incentive plays out. To be seen as master diplomats, the non-governmental delegation needs to get a deal! Outsiders will be very impressed at their diplomatic skills of scoring a fake ceasefire, and most observers won’t pay too much attention to the proposed terms. After all: the resulting agreement will always be couched as what’s acceptable for Russia, so readers will look less closely at whether the proposed terms are actually acceptable for Ukraine. So where the governmental delegation has incentives to concede nothing, the non-governmental delegation has incentives to over-concede.

But wait, it gets worse: Not only do fake diplomats come to the fake negotiation against an opponent six-feet taller than reality, they also come into the fake negotiation with one arm tied behind their back. Real diplomats benefit from extensive prior knowledge about the flexibility of the terms on their own side, and national support to help shape those negotiations. Terms made in a hypothetical are easier to concede than equivalent terms in a real negotiation. Fake diplomats don’t have to actually pay the terms they hypothetically concede, nor do they have to deal with the messy realities of real politics, real victims, or real territory. This effect is further pronounced when the fake diplomat has little direct emotional attachment to the conflict. As a concrete example, Ukrainian diplomats will have a very different emotional and practical problem trading real Ukrainian territory for concessions to end a very real war than a fake American diplomat would have trading imaginary Ukrainian territory as part of a game.

All of which is to say, “Track 1.5” negotiations might be superficially similar to real negotiations, but they are structurally imbalanced towards the governmental participant in a way that is non-obvious to the non-governmental delegation. They will often end up with an outline for a fake deal, but that fake deal will skew wildly in favor of the governmental delegation—in this case, to Russia’s advantage.

But Lavrov didn’t meet Haass and his friends just to win in a fake game of diplomacy. He met them because of what comes next.

Newly armed with a hard-won “plan for peace”, the academics go home with seemingly-sensible terms that everyone could just about agree to: A brilliant show of diplomacy by a truly esteemed diplomat! The war is solved! Hooray! All that’s left is to publicly write up their ingenious plan under their own names and be celebrated for their hard-nosed diplomatic prowess. Other people—including current officials—who take those former officials seriously then read their article. It reads like a serious and sober analysis of the war as a whole, and provides a seemingly-workable plan to peace. And that shifts the perception of the relative value of the concessions Ukraine is advised to make, as well as inflating the relative value of concessions that Russia might have to make and advising the later real delegations away from requesting them, or at least expecting them to come at a far higher price.

That’s the game Lavrov is playing here.

Fake diplomacy isn’t real diplomacy. It’s a game of influence, and of laundering talking points through the academics who play it. It’s a simple trade: the academics get to meet some important people, get treated like very important diplomats, and get to be celebrated by influential people back home for their amazing diplomatic skills once they publish their negotiated “deal”. And in response, Russia gets to launder its talking points and throw Ukraine under the bus, all hidden under the credentials of those academics.

That’s the game Lavrov played. Haass and his colleagues should have known better than to play it.

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In the past week, many supporters of former President Trump have made an argument in his defense that his indictment violates the norm against prosecuting former presidents.

There is no such norm, and there never was.

Norms have gotten a bit of a bad reputation in recent years, and are not especially well understood by the public as a whole. So I want to start with a quick exposition of what norms are. This exposition is important because, among other things, there are actually a few subtly different claims being made for the proposition that there is a norm against prosecuting a former president: One is that it is a fundamental norm rooted in the rule-of-law; another is that it is an emergent norm rooted in historical practice, either since the beginning of the Republic, or in some alternative formulations, a modern emergent norm that has been U.S. practice since the pardon of Nixon.

All of these claims are wrong, but it’s nevertheless important to distinguish them early, because they’re wrong for different reasons.

So we’re going to need to start at the top: what is a norm?

At a high-level, norms are just widely accepted expectations about what constitutes appropriate behavior by various actors within a system. International norms, for example, focus on how countries should behave with respect to each other; legal norms relate to how actors should behave within a legal system; social norms cover how individuals should behave with respect to each other in a society; and so on.

Norms subdivide into fundamental norms, derived norms and emergent norms.

Fundamental norms are those which are structural to the system itself, and which are necessary for the system to function. Emergent norms are those which became established simply through longstanding historical practice. Derived norms are those which are logically derived from more fundamental principles, and which act as helpful “short-cuts” to avoid needing to continuously derive concepts from first principles.

That’s all very abstract, so let’s just give a couple of examples to nail it down before we go further, and to make the point that norms are not all equal, nor equally formalized or enforced.

In the legal system, the right to a fair trial is a fundamental norm for the rule-of-law, requiring that criminal trials are fair, impartial, and consistent. This norm is structural because fair trials ensure that state penalties are established on the basis of law, and are not arbitrary. It is possible to have a society that does not have fair trials: Ancient societies, and modern dictatorships all exist without them. But these societies are not rule-of-law societies.

The right to a fair trial might be a norm, but that doesn’t mean it has no teeth. In the United States, this norm is given constitutional weight through the Fifth and Sixth Amendments. But the norm is not unique to the American legal system; other rule-of-law systems establish the same principle in their own way. The European Convention on Human Rights, for example, formalizes this norm in Article 47; Germany codifies it through Article 103 of the German Basic Law; Australia encodes it through Section 21 of their Human Rights Act 2004; South Korea through Article 27 of their Constitution, and so on.

Derived norms, by contrast, are rules that are logically derived from fundamental norms. The right to an attorney, for example, is a not a fundamental norm; but a derived norm, coming from the right to a fair trial. The logic here is that without access to an attorney to properly interpret and argue the law on your behalf, your access to the criminal justice system would be unfairly abridged, undermining your right to a fair trial. Similarly, attorney-client privilege is a derived norm that traces its logic through the right to an attorney, and ultimately back to the right to a fair trial.

Emergent (or historical) norms are different. These are established by consistent historical practice. Emergent norms are not always unimportant, unenforceable, or unwritten. One example would be customary international law, and the laws of armed conflict. Although these are now codified through formal instruments such as the Geneva Conventions, they are much older, and, for the most part, codify emergent norms that, in some instances, existed for hundreds of years prior to World War 2; which were abrogated during that war; and which the victorious powers sought to codify in its aftermath having experienced the horrors caused by their abrogation. The prohibition against poisoning as a form of warfare, for example, dates all the way back to ancient times, when militaries generally avoided poisoning wells for pragmatic reasons because it was simply too destructive to the civilian population. But while this norm is emergent, it is nevertheless important, codified through the Geneva Conventions, and carries the force of law.

Unpacking the claim

The claims that there is a norm against prosecuting a former president, if we look very carefully, actually turn out to be three slightly different claims. All are wrong. But they’re wrong for very different reasons.

The claims, if we unpack them, are:

• There exists a fundamental norm against prosecuting a former president, rooted in the rule of law itself.

• There exists an emergent norm against prosecuting a former president tracing its history to the beginning of the Republic itself

• There exists an emergent norm against prosecuting a former president established by the pardon of then-former president Nixon by President Ford.

Let’s start with the first claim: that there is a norm against prosecuting a former president, rooted in the rule of law itself. This is a misinterpretation of a real norm: the prohibition of politicized prosecutions. That might sound superficially a bit like a norm against prosecuting politicians, but it’s not.

The norm against politicized prosecutions is not a fundamental norm; it’s a derivative norm that comes from two more fundamental rules:

• The rule-of-law norm of a right to a fair trial,

• The rule-of-law norm of equal treatment under the law

These norms carry constitutional weight in the United States: The right to a fair trial is codified in the 5th and 6th Amendments, and the right to equal treatment under the law is codified in the 14th.

Politicized prosecutions, such as show trials, violate these norms (and, by extension, those constitutional provisions). When a defendant’s guilt is established through an extrajudicial process—either explicitly, or implicitly, such as during showtrials where the defendant’s guilt is politically decided outside of the courtroom—this implicates the defendants’ rights to a fair trial. Since politicized trials also target the defendant because of their political status, this separately implicates the equal treatment under the law norm.

Neither of these fundamental norms are implicated in Trump’s case.

Let’s start with the right to a fair trial. Donald Trump’s guilt has not been pre-established by a political process. Trump will not go to prison merely because a politician wants him to. This is not to say that there is a shortage of politicians who would very much like Trump to be found guilty. Many surely would! And it is also not to say that Biden could not absolve Trump’s criminal liability by pardoning him—an observation that is equally applicable to every federal criminal trial.

Those two statements might be true, but they are both irrelevant to the question of a fair trial. Here, the relevant question is only whether Trump will have a fair opportunity to argue his defense to the judge and jury, and that they will impartially assess that defense without any prejudice from non-relevant facts or non-legal considerations. If Trump can persuade the jury that the facts, as alleged, did not occur beyond a reasonable doubt, he will be found not guilty. If he can persuade the judges that, as a matter of law, the charged offenses either do not apply, or are unconstitutional as applied to his circumstances, the government’s case will fall apart and he will walk free.

Is Trump being denied equal treatment under the law because of his status as a former President? Hardly. The facts, as alleged, would be damning for any other defendant, and the charges against Trump are not even unusual given the facts that are alleged—any other defendant who retained hundreds of highly classified documents and refused to return them would expect indictment and prosecution on similar charges.

Despite the strength of evidence levied against him, it is still not certain he will be found guilty, precisely because his guilt will be decided solely in the courtroom and has not been pre-decided by some political process happening outside of it. He will be tried by a jury in South Florida—a district that, if anything, is strongly biased in his favor. His trial will be overseen by a judge that he appointed and who has, in previous cases, gone out of her way to afford him unusually beneficial decisions far beyond what any other comparable defendant would expect, even in their wildest dreams.

In other words, while the facts, as alleged, are extraordinarily damning—and entirely self-inflicted—the judicial circumstances are skewed heavily in Trump’s favor, not against him. The idea that he is being mistreated by the judicial system is, frankly, laughable.

In summary: The norm against politicized prosecution is not a norm against prosecution of politicians. It is a derived norm from the right to a fair trial and for equal protection under the law. Trump’s case will be decided judicially, not politically, and, if anything, the judicial circumstances are unusually skewed in Trump’s favor, not against it. The norm against politicized prosecutions is not at issue in this case.

There is No Modern International Practice Immunizing Former Presidents from Prosecution

To lend further weight to the claim that there is no fundamental rule-of-law norm against prosecuting former presidents, we can simply look at several other rule-of-law nations and see that the prosecution of former presidents is not an uncommon practice.

Just by way of a few recent examples of rule-of-law countries convicting former heads of state and heads of government:

• Chen Shui-bian, President Taiwan, (2009, Bribery)

• Jacques Chirac, President, France (2011, Corruption)

• Silvio Berlusconi, President, Italy, (2013, sex with a minor; malfeasance in office)

• Ehud Olmert, Prime Minister, Israel (2014, Bribery)

• Choi Kyoung-hwan, Prime Minister, South Korea (2018, Bribery)

• Ma Ying-jeou, President, Taiwan (2018, Leaking classified information)

• Benjamin Netanyahu, Prime Minister, Israel (2019, Fraud, Bribery)

• François Fillon, Prime Minister, France (2020, Fraud)

• Nicolas Sarkozy, President, France (2021, Bribery)

• Cristina Fernández de Kirchner, President, Argentina, (2022, Fraud)

Prosecution of Former Presidents was Understood as Sometimes Appropriate at the Constitutional Convention

As to the question of an emergent norm against prosecution of former presidents, I want to take this in three parts:

1. There is no historic norm against prosecution of former presidents, as understood during the founding era.

2. The pardon of Nixon did not assert a norm against prosecution of former presidents.

3. There is no modern (post-Nixon) norm against prosecution of former presidents.

Let’s start with the historic norm, starting at the beginning of the Republic.

Prosecution of politicians—and former presidents—in the United States has always been viewed as appropriate in some circumstances, dating back to the founding era.

Here is the transcript from the Constitutional Convention, on Tuesday September 15, 1787 (emphasis added):

Mr. RUTLIDGE and Docr. FRANKLIN […] Art: II. Sect. 2. "he shall have power to grant reprieves and pardons for offences against the U. S."

Mr. RANDOLPH moved to "except cases of treason." The prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traytors may be his own instruments.

Col: MASON supported the motion.

Mr. Govr. MORRIS had rather there should be no pardon for treason, than let the power devolve on the Legislature.

Mr. WILSON. Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he be himself a party to the guilt he can be impeached and prosecuted.

Here, Wilson’s response is instructive: According to him, the pardon power doesn’t need to be abridged or subject to ratification by the other branches, not because a malicious president could never exist, but rather because the Constitution provides a safety valve against such a malicious president: he could be impeached by the Congress to strip him of office and then that former president could be prosecuted.

This point was sufficiently uncontroversial that nobody objected to it, or suggested any issue with it.

Prosecution of Former Presidents was understood as sometimes appropriate in the Federalist Papers

There are other contemporaneous sources to this point too. Take, for example, Hamilton’s Federalist Paper No 77 (emphasis added):

The answer to this question has been anticipated in the investigation of its other characteristics, and is satisfactorily deducible from these circumstances; from the election of the President once in four years by persons immediately chosen by the people for that purpose; and from his being at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law.

Federalist Paper 65:

The punishment [of the impeached president] which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law

In Federalist Paper 69, Hamilton not only asserts a former president’s liability to prosecution, but goes further, explicitly contrasting it to the King of Great Britain, who has general immunity that the American constitutional system chose to not emulate with respect to the president.

The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution. In this delicate and important circumstance of personal responsibility, the President of Confederated America would stand upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware.

All of which is to say, it was well understood by the Framers that former presidents were liable to prosecution and punishment, in appropriate circumstances.

The Constitution Explicitly Provides for Criminal Prosecution of a Former President

The United States Constitution provides legislative immunity from criminal prosecution via the Speech and Debate clause, but does not extend that criminal immunity to the Presidency—and certainly not to former presidents. In fact, it does the opposite, anticipating criminal liability of former presidents in the Impeachment Judgement Clause in Article I, Section 3, Clause 7 (emphasis added):

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

While the first half of this clause constrains the Senate to ensure that impeachment convictions can only lead to the removal and disqualification from office, the second half operates as a double-jeopardy waiver, explicitly anticipating and permitting the trial and punishment under criminal law of the impeached person. In the case of the impeachment of a president, this anticipates and permits the indictment and criminal punishment of a (newly) former president in appropriate circumstances.

The United States has an Unbroken History of Prosecuting Federal Politicians

The list of prosecutions of federal politicians in the United States is not small. As an initial count, the United States has indicted and obtained convictions for at least 82 Representatives; 5 Senators; 9 district court judges; one appellate judge; 2 Vice Presidents (Aaron Burr charged, but acquitted for treason; Spiro Agnew charged and convicted for extortion, bribery, and tax fraud); as well as obtaining convictions for dozens of senate-confirmed members of the executive branch, including: two attorneys general; and a Director of the CIA.

The first conviction of a federal politician was just 10 years after the ratification of the constitution in 1798. Since 1900 there has been no decade where no federal politician was convicted. As of writing, the most recent federally elected politician to be convicted was Representative Jeff Fortenberry, who was convicted and sentenced in July 2022.

As a purely historical matter, there has never been a historical practice against the indictment or prosecution of federal politicians in the United States; nor any historical practice of immunity that derives from party alignment or even due to separation-of-powers concerns between the branches. Administrations of both parties have prosecuted politicians of their own, and other parties, regardless of governmental branch, as appropriate.

To the premise that perhaps there is an emergent norm against prosecuting presidents starting at the pardon of former president Nixon, this is refuted directly by that pardon itself. The pardon of then-former president Nixon by President Ford noted that Nixon would otherwise have expected indictment for his crimes. The text of Ford’s proclamation 4311 is given in total below:

For emphasis, the relevant sentence is reproduced below:

As a result of certain acts or omissions occurring before his resignation from the Office of President, Richard Nixon has become liable to possible indictment and trial for offenses against the United States.

Here, Ford states that then-former president Nixon is liable to criminal prosecution, and anticipates that Nixon is liable to possible criminal indictment and trial, if not for this pardon. This is perhaps a very obvious point: if Ford did not think that Nixon was liable to prosecution despite being a former president, granting him a pardon would have been quite pointless. The pardon exists precisely because former presidents are liable to criminal prosecution in administrations that follow.

The Executive Branch, has, since Nixon, also repeatedly asserted the possibility of criminal prosecution of former presidents. In the United States, the Executive Branch’s institutional views on matters of separation of powers are encoded through memoranda drafted by the Office of Legal Counsel (OLC). These memoranda do not hold the same weight as an opinion by the Supreme Court, but do, nevertheless, encode the Executive Branch’s reasoning and analysis on the state of the law, to the extent that it advises the President with respect to separation of his powers from those of the other branches, and is binding on departments and agencies within the Executive Branch, including the Department of Justice.

In a pair of memoranda in 1973 and 2000, OLC looked at the question of whether a President was liable to prosecution in office. It concluded the answer was no; but the reasoning behind that conclusion is separately instructive: the President might not prosecutable while in office, but this is because, among other things, the remedy for presidential misconduct was impeachment (or removal from office by fact of election), followed by prosecution after leaving office. In other words, OLC affirmatively rejected the idea that the president had a permanent immunity from prosecution.

Another OLC opinion makes this point again: In 1974, OLC investigated a question of a presidential self pardon. OLC’s opinion then was that a president could not issue a pardon to himself. But critical here is an unspoken assumption in the request itself: the only point in issuing a self-pardon would be to immunize a former president from criminal proceedings taking place under a future administration. At no point did OLC even consider the idea that a former president was not liable to prosecution, because this fact was obvious to everyone involved.

Prosecutors are Prohibited from Using a Potential Defendant’s Political Status as a Basis to Decline Prosecution

In the modern era, federal prosecutors in the United States are required to follow guidelines laid out in the Principles of Federal Prosecution guidebook, formerly known as the U.S. Attorney Manual. Section 9-27.220 lays out the basis under which prosecutorial discretion may be applied to decline prosecution of a federal offense:

The attorney for the government should commence or recommend federal prosecution if he/she believes that the person's conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless (1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.

Can a prosecutor decline prosecution simply because the defendant is popular, or a political figure, knowing that this might affect a jury?

The guidebook gives an answer here too: this is an invalid basis to make a prosecution decision

Where the law and the facts create a sound, prosecutable case, the likelihood of an acquittal due to unpopularity of some aspect of the prosecution or because of the overwhelming popularity of the defendant or his/her cause is not a factor prohibiting prosecution. For example, in a civil rights case or a case involving an extremely popular political figure, it might be clear that the evidence of guilt—viewed objectively by an unbiased factfinder—would be sufficient to obtain and sustain a conviction, yet the prosecutor might reasonably doubt, based on the circumstances, that the jury would convict. In such a case, despite his/her negative assessment of the likelihood of a guilty verdict (based on factors extraneous to an objective view of the law and the facts), the prosecutor may properly conclude that it is necessary and appropriate to commence or recommend prosecution and allow the criminal process to operate in accordance with the principles set forth here.

Indeed, criminal investigation of former presidents of both parties has been regular practice post-Nixon, even if indictment has not resulted. Trump may be the first former president to be indicted, but he is not the first current or former president to be criminally investigated. There are four presidents (not including Trump) who have been criminally investigated; three of which in the modern era:

• President Ulysses S Grant was famously arrested for speeding while in office, and fined.

• President Richard Nixon was famously criminally investigated by the Watergate grand jury and special prosecutor; the investigation was ended by the pardon from Ford.

• President George H.W. Bush was—far less famously—criminally investigated by the Office of the Independent Counsel in connection with the Iran Contra affair, which occurred while Bush Sr. was Vice President. As the Independent Counsel notes:

The criminal investigation of Bush was regrettably incomplete. Before Bush's election as President, the investigation was primarily concerned with the operational conspiracy and the careful evaluation of the cases against former National Security Adviser John M. Poindexter and Lt. Col. Oliver L. North of the National Security Council staff, prior to their indictment in March 1988. This included a review of any exculpatory material that might have shown authorization for their conduct. In the course of this investigation, Vice President Bush was deposed on January 11, 1988.

The independent counsel considered, but eventually declined to pursue criminal charges against Bush. The investigation closed when OIC filed its final report on August 4, 1993.

• President Bill Clinton was the subject of criminal investigation through much of his tenure in office, and the Monica Lewinsky investigation was not closed with a non-prosecution settlement until after he left office. In addition, he was criminally investigated after leaving office in relation to the pardon of Marc Rich. Although Bill Clinton was never charged, the investigation did get as far as empaneling a grand jury in the Eastern District of Louisiana and issuing subpoenas. The cover page of DOJ’s criminal investigation into Bill Clinton is shown below.

In other words, there is no theoretical basis to assert a norm against prosecuting former presidents, nor is there an established international practice on which to assert such a norm. It is not a fundamental norm in the rule-of-law.

There is no historical basis rooted in the founding era for it either: The Constitution by its own text explicitly rejects the existence of such a norm, as do several of the Federalist Papers, and the debate at the Constitutional Convention itself. The United States has a storied and continuous history prosecuting federal officials of both parties and across all branches starting in the founding era and which is unbroken through to 2022.

There is also no modern basis for such a norm in the post-Nixon era. The text and very existence of the Nixon pardon refutes the concept of a norm against indictments of former presidents; the executive branch has repeatedly rejected the idea of such a norm since; and as a modern historical practice; two other former presidents (not including Trump) have been criminally investigated since Nixon, even if Trump is the first to be indicted.

So, no, there is no norm against prosecution of former presidents in the United States.

There never was.

This weekend, I joined Lawfare Editor-in-Chief Benjamin Wittes and Lawfare Fulton County Court Correspondent Anna Bower for a conversation on Read With Me, a podcast associated with Ben’s Dog Shirt Daily newsletter. In this episode, Ben, Anna, and I went through the indictment of Donald Trump in detail.

It's a line-by-line, page-by-page analysis that we thought might be a good resource for people who are trying to make sense of the indictment—where it's strong, where it raises issues, what issues it raises, and where things might go from here.

The audio for the episode is available here, and if you want to follow along as we go through the document, a copy of it is available here.

With the Trump indictment last week, several prominent media organizations and commentators have started asking all sorts of questions about the case. Most fall into four categories:

1. Are the facts, as alleged, substantially correct?

2. As a matter of law, does the law support the charges?

3. Was the Special Counsel correct to charge Trump, as a matter of discretion? and

4. How long would Trump serve if found guilty?

The first of these questions will be answered by the jury. The second will be answered by the judge, and by the appellate judges in the Eleventh Circuit or the Supreme Court who will handle the various questions of law that get appealed. The third question is largely a subjective question: It’s a question particularly suited to partisan punditry, because it allows them to avoid arguing about or even engaging with the facts or the law.

But that fourth question—what would the sentence be if Trump were convicted—is different. It’s a weirdly technical question, and one that most folks—including many publications that should frankly know better—seem to keep getting very wrong. For example, the Independent, Washington Examiner, New York Post, Forbes, and so on, have all said that, if found guilty on all charges, Mr. Trump faces up to 400 years in prison.

No. He doesn’t.

The “400 years” number here comes from a basic summation of statutory maximum sentences for each of the charged offenses. The first 31 charges all have a statutory maximum term of imprisonment of 10 years. Charges 32-35 has a maximum of 20. Charges 36 and 37 both have a maximum penalty of 5. If we add all those numbers up we get to this big scary number of 400 years.

Don’t do this.

It’s stupid.

Sentences do not work like this in the United States.

If anyone ever tells you what the “maximum sentence” of an offense is, or that someone is “facing X years in jail” where X is a big number, stop listening to them immediately. When prosecutors do it, it is to scare a defendant into making a guilty plea. When defense attorneys do it, it’s to rile up supporters with a fake number about how unreasonable the prosecutors are. When pundits do it, it’s because they have no idea what they are talking about.

Not only is the 400 years number divorced from reality, it’s not even a real maximum. A sentencing judge can do as they please within their courtroom, and could absolutely sentence Trump to a hundred billion years if they really wanted. It would be stupid and immediately appealed and reversed, but a 400 year sentence would be too.

More importantly, penalty-summation just completely misunderstands how sentencing actually works in the United States. It’s just not remotely how sentencing works. It does nothing other than yield a completely useless number.

OK. But what’s the real number, if he were convicted (itself a big if)?

That’s an involved question, but we don’t have to just guess. Sentences aren’t random, and we can roughly work out where the sentence would land within a range, so long as we put in the work, and make a few assumptions about how the mitigating and aggravating factors will apply. That process is a bit, well, boring and actuarial, and involves diving pretty deep into the US Sentencing Manual and sentencing precedents to get a feel for where the sentence would end up.

So let’s dive in.

Let’s start with the first 31 charges in Trump’s indictment. These all relate to unlawful retention of specific classified documents, mostly, but not exclusively, at the top secret level. If convicted, the guilty counts in this group will all be grouped together under 2M3.3, which carries a base offense level of 29 when at least one of them implicates top secret information:

On top of this base level, prosecutors will push for several enhancements:

• +2 for obstruction of justice.

• +2 for abuse of a position of trust.

• +4 enhancement for his role as the organizer or leader of the criminal activity with five or more participants, or which was otherwise excessive.

At the sentencing stage, Trump’s defense will argue against those enhancements, and may push for the inclusion of mitigating factors. In any case, at the sentencing stage Trump’s team would be fighting at an adjusted offense level of 37 for these charges, if found guilty of unlawful retention of any or all of the top secret documents.

The second group of charges all generally relate to obstruction of justice, and so we go to the Sentencing Manual’s 2J1.2 section:

Here Trump would be looking at a base offense level of 14, and the special counsel would push for the +3 enhancement under 2J1.2(2), because Trump’s actions resulted in a substantial interference with the administration of justice. The special counsel would also likely push for the +2 enhancement under 2J1.2(3) because the scheme was extensive in scope, for an adjusted offense level of 19.

For obstruction, this isn’t the end of the analysis, because Obstruction offenses (2J1 offenses) can convert into Accessory After the Fact (2X3.1) offenses if the obstruction substantially impedes an investigation or prosecution of another criminal offense:

Here’s 2X3.1:

Here, 2X3.1 starts with a calculated base offense level based on the offense that was being obstructed. Here that’d be the base level 29 (from the base offense level of the unlawful retention) minus 6, because of 2X3.1(a)(1), for a calculated base offense level of 23. Since the 2X3.1 offense level of 23 is higher than the 2J1 offense level of 19, the obstruction offense converts to the Accessory After the Fact offense, with the higher base offense.

This offense is also subject to enhancements and mitigations, and the special counsel would again push for a +2 for abuse of trust and +4 for Trump’s role as the organizer or leader of the criminal activity with five or more participants, or which was otherwise excessive, for a total adjusted offense level of 29.

Donald Trump has no prior convictions, so has a Criminal History Category of I. We then map both offenses to a sentencing guideline range via the Sentencing Table in the Sentencing Guidelines:

So in summary, if found guilty for retention of any (or all) top secret documents in the first 31 charges, Trump will be looking at a sentence with a guideline in the 210-262 month range. If found guilty on the obstruction charges, Trump would be looking at a sentence of 87-108 months. Those numbers assume that the aggravating factors as alleged all stick and no mitigating factors apply. Those two sentences would likely run concurrently, for an aggregate sentence of 210-262 months, or 17.5-21 years.

Trump would not spend all of that time in federal prison. His sentence would be automatically eligible for 50% off under the First Step Act with good time credit. He would also be eligible for compassionate release if his health substantially deteriorates, and his sentence could be further commuted or pardoned by a president of either party.

Trump would not lose protection from the Secret Service if convicted. His protection by them is by statute, so continues to apply regardless of whether Trump is in federal prison (unless Congress amends the legislation), but how exactly that would work in practice, I have no idea. I suspect the Secret Service don’t know either, and will cross that bridge if and when they come to it.

But those are the top-line numbers for Trump. If found guilty on essentially any of the classified document retention charges, Trump will be staring down some real prison time. That’s, of course, still a very big if. Trump’s prior status as president makes this case far more complicated than it would be for any other defendant, and he would need to be found guilty unanimously by a Florida jury—something that is by no means certain.

That does all add up to a very serious sentence. These are big boy crimes, and the penalties don’t look like a slap-on-the-wrist.

But it’s also not 400 years.

Donald Trump has been indicted for a second time, but for the first time by the Department of Justice on federal offenses, with charges relating to his mishandling of classified documents, and his subsequent attempts to cover-up that fact from government investigators and the Grand Jury.

The indictment itself is available to read here.

Trump’s valet Waltine (“Walt”) Nauta is also indicted too, presumably with a view to persuading him to cooperate as a witness against Mr. Trump.

Note that this indictment only covers alleged crimes that happened within the jurisdiction of the Southern District of Florida (i.e. at Mar-a-lago). The Office of Special Counsel may bring additional charges in D.C. or in New Jersey (for relevant events taking place at Trump’s Bedminster property) if it believes there are prosecutable crimes committed in those jurisdictions. It can also add or remove additional charges in Florida at a later date too via superseding indictments.

Like all indictments, this indictment includes some mandatory redactions (names of countries and individuals not charged), as well as listing 31 specific classified documents obliquely. We can do a bit of digging to de-anonymize or reasonably guess the contents of some of those.

The charges

• 31 counts of Wilful Retention of National Defense Information — 18 USC 793(e)

• Conspiracy to Obstruct Justice — 18 USC 1512(k)

• Withholding a Document or Record — 18 USC 1512 (b)(2)(A), and abetting

• Corrupting concealing a Document or Record — 18 USC 1512[c](1), and abetting

• Concealing a Document in a Federal Investigation — 18 USC 1519, and abetting

• Scheme to Conceal — 18 USC 1001(a)(1), and abetting

• False Statements and Representations — 18 USC 1001(a)(2), and abetting

The first group (wilful retention) relate to the actual holding and retention of specific classified documents. The final group of charges all relate to Trump’s conspiracy to hide them from government investigators and the Grand Jury during the investigation generally.

The documents (overview)

The indictment first covers classified documents retrieved by the National Archives (NARA), and which are not the basis of these charges. These are:

• 15 boxes provided by Trump to NARA in January 2022. These contained 197 classified documents: 98 at SECRET; 30 at TOP SECRET; the remainder at Confidential. Some additionally had Sensitive Compartmented Information (SCI) and Special Access Program (SAP) markings.

• During the FBI search of Mar-a-Lago Club, a further 102 documents, recovered from Trump’s office and a storage room. These included 17 documents at TOP SECRET; 54 at SECRET; 31 at CONFIDENTIAL. Of these, Trump’s office held 6 at TOP SECRET; 18 at SECRET; and 3 at CONFIDENTIAL.

The indictment does not seek to charge possession of all of these documents. Only 31 documents are specifically mentioned for the purposes of the charges; one charge per document—to allow the government to take or withdraw each document in the trial separately. The case will therefore center on these documents and not the others.

The named documents are not provided in full, but are described in the indictment. They are:

For those with screen readers the text is given below:

1. [TS//NF//SPECIAL HANDLING] Document dated May 3, 2018, concerning White House intelligence briefing related to various foreign countries

2. [TS//SI//NF//SPECIAL HANDLING] Document dated May 9, 2018, concerning White House intelligence briefing related to various foreign countries.

3. [TS//SI//NF//FISA] Undated document concerning military capabilities of a foreign country and the United States, with handwritten annotation in black marker

4. [TS//SPECIAL HANDLING] Document dated May 6, 2019, concerning White House intelligence briefing related to foreign countries, including military activities and planning of foreign countries.

5. [TS//XX/XX//ORCON//NF] Document dated June 2020, concerning nuclear capabilities of a foreign country

6. [TS//SPECIAL HANDLING] Document dated June 4, 2020, concerning White House intelligence briefing related to various foreign countries

7. [S//NF] Document dated October 21, 2018, concerning communications with a leader of a foreign country.

8. [S//REL FVEY]Document dated October 4, 2019, concerning military capabilities of a foreign country.

9. [TS//XX/X//ORCON/NF/FISA] Undated document concerning military attacks by a foreign country

10. [TS//TK//NF] Document dated November 2017, concerning military capabilities of a foreign country

11. [unmarked] Undated document concerning military contingency planning of the United States

12. [S//REL FVEY] Paged of undated document concerning projected regional military capabilities of a foreign country and the United States

13. [TS//SI/TK//NF] Undated document concerning military capabilities of a foreign country and the United States

14. [S//ORCON/NF] Document dated January 2020, concerning military options of a foreign country and potential effects on United States interests

15. [S//ORCON/NF] Document dated February 2020 concerning policies in a foreign country

16. [S//ORCON//NF] Document dated December 2019, concerning foreign country support of terrorist acts against United States interests

17. [TS//X/TK/ORCON/IMCON/NF] Document dated January 2020 concerning military capabilities of a foreign country

18. [S//NF] Document dated March 2020 concerning military operations against United States forces and others

19. [S/FRD] Undated document concerning nuclear weaponry of the United States

20. [[TS//XX/ORCON//NF] Undated document concerning timeline and details of attack in a foreign country

21. [S//NF] Undated document concerning military capabilities of foreign countries

22. [TS//X/RSEN/ORCON//NF] Document dated August 2019, concerning military activity of a foreign country

23. [TS//SPECIAL HANDLING] Document dated August 30, 2019, concerning White House intelligence briefing related to various foreign countries, with handwritten annotation in black marker

24. [[TS//HCS-P/SI//ORCON-USGOV/NF] Undated document concerning military activity of a foreign country

25. [[TS//HCS-P/SI//ORCON-USGOV/NF] Document dated October 24, 2019, concerning military activity of foreign countries and the United States

26. [[TS//X//ORCON//NF/FISA] Document dated November 7, 2019, concerning military activity of foreign countries and the United States

27. [TS//SI/TK//NF] Document dated November 2019, concerning military activity of foreign countries

28. [TS//SPECIAL HANDLING] Document dated October 18, 2019, concerning White House intelligence briefing related to various foreign countries

29. [TS//X/SI/TK//ORCON/NF]Document dated October 18, 2019, concerning military capabilities of a foreign country

30. [TS//X/ORCON/NF/FISA] Document dated October 15, 2019, concerning military activity in a foreign country

31. [TS//SI/TK//NF] Document dated February 2017, concerning military activity of a foreign country

Classification guide/Key

• TS: TOP SECRET

• S: SECRET

• NF: NOFORN - for distribution within the United States only, and not to foreign governments

• REL FVEY - information relating to and shared with FIVE EYES partners; namely the United Kingdom, Canada, Australia, and New Zealand.

• TK - TALENT KEYHOLE, a compartment that merged from TALENT (imagery product from sensitive manned overflight) and KEYHOLE (imagery from satellite). The combined compartment covers overhead imagery. The existence of the compartment is now unclassified.

• SI — Special Intelligence; generally collected signals intelligence and communications intelligence.

• FISA — Information relating to, or collected under the Foreign Intelligence Surveillance Act, and which carries additional handling sensitivity because of it.

• ORCON — Originator Controlled - a handling caveat specifying that the originator (or originating agency) must be consulted prior to further sharing and/or release of the document.

• HCS-P — HUMINT (Human-source derived intelligence) Control System (Product). Used to mark analysis and intelligence reporting whose ultimate information providence includes covert human sources.

• X — used here to denote a compartment that is redacted in the document.

• FRD — Formerly Restricted Data. A classification category for nuclear secrets under the Atomic Energy Act. See Document #19 section below.

Document #19: US Nuclear Capability

[S/FRD] Undated document concerning nuclear weaponry of the United States

Ordinarily, classified documents fall within the purview of the Executive Branch to classify or declassify. You may, for example, have heard that the President can declassify any document. This is usually true, because most classifications inside the US government track their authority back to the President’s Article II powers as Commander in Chief (or Foreign Affairs), and in both cases are regulated by Executive Order 13526 and its predecessors. Classification crimes are proscribed by statute (as National Defense Information), but usually the definition of National Defense Information will lean on the Executive Branch’s definitions, as defined in the Executive Order.

Not so with nuclear documents. Classification of these documents is by statute, not by EO 13526 or its predecessors. Specifically, these are classified directly via the Atomic Energy Act.

In this group, document #19 is special. This is Formerly Restricted Data, and is classified by virtue of the Atomic Energy Act (as implemented by 10 CFR part 1045). Trump could not have declassified this document even while president—at least not directly. It is National Defense Information by statute, not by executive order.

By statute, documents are classified under the Atomic Energy Act if the Department of Energy and Department of Defense agree that the document (or category) falls within the categories laid out in the Atomic Energy Act. If DOE and DOD disagree, the President can break the tie (in either direction). This means the President could in principle force documents to be declassified by directing the relevant Secretaries to declassify the documents (and firing them if they don’t comply). But critically: the process must occur for the document to be declassified. It is not “at will” declassification by the President. A longer exposition on this point is here.

This is a really big deal, not just because of what it contains, but because it resolves a nasty question about classification EOs and the extent to which they bind upwards as well as downwards in the executive branch heirarchy. Here, document 19 side-steps the question. This document is classified by statute.

Be careful with the term formerly restricted data here. It does not mean the information is no longer national defense information; it means that it can, for the most part, be treated like normal classified information. From a slide at DOE:

It is not clear what, exactly, the document contains. But a few canonical examples of Formerly Restricted Data include US stockpile quantities, nuclear weapons safety and storage, nuclear weapon yields, and locations of US nuclear weapons.

By contrast, at that level it would not contain information about nuclear weapon design, nuclear material production, reactor design, or use of special nuclear material in the production of energy, which is, by statute, held at the higher RESTRICTED DATA designation.

Note that RD and FRD run in parallel to the “traditional” classification system. Documents can (and often are) both NSI-classified and F/RD-classified. For example, a TSRD document is both TOP SECRET NSI-classified within the meaning of EO13526 and Restricted Data within the meaning of the Atomic Energy Act.

This particular document is classified at both SECRET and FRD.

Document #5 Nuclear capabilities of a foreign country (probably Russia)

[TS//XX/XX//ORCON//NF] Document dated June 2020, concerning nuclear capabilities of a foreign country.

The indictment doesn’t list the country. I think this is probably Russia.

On June 2, 2020, the Russian Federation published for the first time their nuclear deterrence policy, which was previously classified. The Russian nuclear deterrence doctrine is called “Basic Principles of State Policy of the Russian Federation on Nuclear Deterrence”.

Russia changing their nuclear deterrence posture will have certainly featured in the President’s Daily Brief in June 2020.

Document #2: PDB after the Iran Deal

[TS//SI//NF//SPECIAL HANDLING] Document dated May 9, 2018, concerning White House intelligence briefing related to various foreign countries.

This is almost certainly excerpts taken from a Presidential Daily Brief (PDB).

It is a little hard to parse which specific issues the President was interested in from these briefs, other than by analyzing major events that took place contemporaneously which the president was openly interested in.

This PDB is May 9, 2018. This is the day after President Trump made a televised address, withdrawing the United States from the Joint Comprehensive Plan of Action (JCPOA), known colloquially as the “Iran Deal”. The May 9 PDB will certainly have prominently featured international response to this withdrawal.

Document #14: Military options of a foreign country (probably Iran)

[S//ORCON/NF] Document dated January 2020, concerning military options of a foreign country and potential effects on United States interests

I think this is related to Iran in the aftermath of Operation Martyr Soleimani.

On 8 January 2020 (local time, 7 January US time), Iran’s IRGC launched 12 ballistic missiles at the Ayn al-Asad airbase in western Iraq and at the airbase in Erbil, in response to the earlier assassination by the United States of Iran’s Major General Qasem Soleimani in a drone strike.

Although the United States did not retaliate militarily to the strikes (it did respond with several rounds of sanctions), this was a period of very high tensions with Iran, and the United States would quite likely have produced various kinetic option responses for the President in January 2020, as well as requested IC assistance to report on potential effects on United States interests if those options were taken.

Document #16: Foreign government support of terrorist acts against the United States (probably Saudi/AQAP after Pensacola)

[S//ORCON//NF] Document dated December 2019, concerning foreign country support of terrorist acts against United States interests

My guess is Saudi Arabia and AQAP.

In late November 2019 through end of December 2019, there were a few substantial terrorist attacks:

1. 29 November 2019: The Mass-stabbing attack in London by Usman Khan, wearing a false explosive belt which killed 3 and injured a further 3.

2. 6 December 2019: Naval Air Station Pensacola shooting, by a Saudi student.

3. 10 December 2019 Jersey city shooting at a kosher grocery store, with anti-semitic and anti-police motives

4. 11 December 2019: 2019 Bagram Airfield attack. Taliban militants attacked the main US base, killing 3 and injuring 80.

To be clear: this document could have been in response to any one of these, or none of them. It could also be in response to a foiled terrorist attack.

Of these, President Trump took significant personal interest in both the London stabbing attack, and the Pensacola shooting attack. Of these, the Pensacola attack has a clear foreign terrorist organization behind it (AQAP) and the shooter’s nationality was both politically significant and factored into President Trump’s tweets on the day, as well as the call he took from King Salman of Saudi Arabia, hence my guess.

Document #7: Communications with a foreign leader (probably INF withdrawal)

[S//NF] Document dated October 21, 2018, concerning communications with a leader of a foreign country.

This could be a lot of things. The previous administration didn’t take care to ensure that communications with foreign leaders were properly documented or relayed to the public, and there is no call sheet for it.

First of all, this is not the famous Kim Jong Un letter, which was focus of one of the early document production requests by NARA, and which Trump showed to Bob Woodward for his book “Rage”. That letter is public (thanks to the book Letters to Trump), is unclassified, and is dated July 30, 2018, not October. It’s not that one.

Rather, there’s two main candidates here based on what was happening at the time. The first is communication with Saudi Arabia about the murder of Jamal Khashoggi, who was killed on the 2 October 2018. Although this was several days earlier, the Saudi Foreign Ministry reported on October 20 that Hkashoggi died at the consulate after being engaged in a fight; the first Saudi acknowledgement of Khashoggi’s death. On October 20, Trump publicly stated he found this claim “credible” and that he had talked two days earlier to the ailing King Salman. It is possible that Trump spoke to either King Salman or Crown Prince Mohammed bin Salman and retained a memorialized copy of the conversation.

I don’t particularly like this theory, though. Trump famously spoke a lot by phone, but not by text. It’s a bit hard to see how that call would have been memorialized, and given Trump’s communication with Salman two days earlier, it would have been perhaps a bit much to expect an additional call three days later on it. And Trump didn’t reference any explicit new communication with the Saudis on October 21. The classification marking is also higher than it should be for such a call.

A better option is probably a communication with the Russian President. On October 21, 2018, Trump announced that the US would withdraw from the 1987 Intermediate-range Nuclear Forces Treaty (INF), which banned ground-launch nuclear missiles with ranges from 500-5500km.

These documents, which are notionally addressed president to president, will certainly have been memorialized in writing, and would plausibly be described in the indictment as “communications with a leader of a foreign country”. The classification looks about right for that type of exchange of letters too.

Document #18: Military operations against US Forces (probably Hezbollah)

[S//NF] Document dated March 2020 concerning military operations against United States forces and others

This is probably relating to the 2020 Camp Taji attacks between 11-14 March 2020 targeting Camp Taji near Baghdad, which killed two Americans and one British soldier. The US and UK launched air raids against Hezbollah in response.

Document #4: PDB, military activities and planning of foreign countries (probably Iran)

[TS//SPECIAL HANDLING] Document dated May 6, 2019, concerning White House intelligence briefing related to foreign countries, including military activities and planning of foreign countries.

Again, could be a lot of things, but probably related to Iranian direct and proxy threats against American forces in the region, and the US’ deployment of the USS Abraham Lincoln carrier and a bomber task force to threaten Iran in response.

Document #11: US Military Contingency Planning

[unmarked] Undated document concerning military contingency planning of the United States

This is probably the “Milley” plan to attack Iran.

Earlier in the indictment (before the charges), DOJ references a conversation transcript in which Trump shows a plan by a “Senior Miltary Official” about a plan to attack “Country A”. The transcript, as given in the indictment, is shown below:

This transcript comes from a tape recording of Trump, which reveals the Senior Military Official as Chairman of the Joint Chiefs General Milley, and Country A as Iran.

We also separately know that this plan was presented to Trump on January 3, 2021, just days before he left office, thanks to an interview that almost certainly has Milley himself as a source.

This leaves a bit of a conundrum: if this conversation is in the transcript, is the corresponding document on the charge sheet? It would be unusual not to, since the entire point of including the transcript is to show Trump showing off documents he did not have access to, and undermining legal defenses he might otherwise try and employ. Here he freely admits that he knows the document is classified, that the person he is showing to is not cleared to see it, and that Trump did not declassify it while he was President.

Nevertheless, for the transcript to be useful evidence, DOJ would need to show not just that Trump thought the document is classified, but that it really is. Which would mean it is probably in the list. It doesn’t have to be on the list. But since the point of the transcript here is to show wilful violation by Mr Trump, and the structure of the indictment lists each document as a separate charge, it makes much more sense for one of the charged documents to be this one.

If it is on the list, there’s not many options for it because of the date: it would have to be an undated entry. Of these, document #11 fits the bill nicely.

Of course, I could be wrong here. It could be unrelated. But it makes the most sense given the information we have.

Documents #28, #29, #30: Probably related to the Turkish offensive into north-eastern Syria

#28: [TS//SPECIAL HANDLING] Document dated October 18, 2019, concerning White House intelligence briefing related to various foreign countries

#29: [TS//X/SI/TK//ORCON/NF]Document dated October 18, 2019, concerning military capabilities of a foreign country

#30: [TS//X/ORCON/NF/FISA] Document dated October 15, 2019, concerning military activity in a foreign country

These three documents cover events over the three day period October 15-18, 2019.

The first of these (#28), based on the handling requirements, is probably a direct excerpt from a PDB. The second (#29) is probably a map or satellite graphic, based on the compartment.

These three documents happen about the time of the 2019 Turkish offensive into north-eastern Syria. A close timeline of these events is here.

Specifically, on 14 October 2019, President Trump announced that all U.S. personnel would withdraw from Syria, except those at Al-Tanf base. The PDB the day after (15th) would likely include IC reporting, not just from Turkey and inside Syria, but also other interested parties to the conflict, about their reaction to the withdrawal.

A few days later, on 17 October 2019, Vice President Mike Pence and Turkish President Erdogan reached a deal to implement a 120-hour cease-fire, ending Turkey’s operation in norther Syria. The President would likely have been briefed the day after with maps and other analysis about the state of the ceasefire, and the IC’s analysis about reactions to the ceasefire, whether it will hold, and the state of forces on the ground.

Document #6: PDB (maybe related to barring Chinese flights to the US)

[TS//SPECIAL HANDLING] Document dated June 4, 2020, concerning White House intelligence briefing related to various foreign countries

This is most likely a PDB or extract from a PDB, based on the classification marking here, but it’s a bit unusual. The big international event here is from the day before: June 3, when the Trump administration announced a ban on all commercial passenger flights by Chinese carriers, to begin on June 16.

Although this event has been largely re-cast in recent years to have been motivated by a desire to prevent the spread of COVID to the United States, the proximate cause of the ban was actually in response to a Civil Aviation Administration of China order in late March which limited Chinese and foreign flights. That order also capped the number of flights by any airline to China beyond the baseline of March 12. With no U.S. airlines actually flying to China on that date, that Chinese order effectively barred all U.S. flights to China. By June, Delta and United had been pushing to resume flights to China, but the Civil Aviation Administration of China order blocked this.

On June 3, the U.S. administration retaliated, barring all direct flights to the United States from China. This PDB is from the day after.

There are a several other things the PDB would have contained, but this would seem to be the most likely extract that Trump was personally interested in retaining.

For the past few weeks, the biggest problem facing D.C. has been the debt ceiling. It’s a uniquely D.C. problem: a completely avoidable catastrophe unless a deal is reached, but—if we’re lucky—perhaps at the eleventh-hour the whole shebang will go away and we’ll scrape through with the U.S. having laudably decided not to detonate its own economy.

As with many of these recent artificial crises, this negotiation seems, at least from the outside, to be going rather badly. President Biden has signaled that he’s open to looking at ways to dodge the issue—namely by using the 14th Amendment to declare the debt ceiling unconstitutional and to ignore it. Several prominent Democrats are also loudly pushing this plan.

Biden is right to want to circumvent the debt ceiling—especially if the alternative is a national default. But, unfortunately, the plan to do it via the 14th Amendment is a very bad one—especially compared to alternative plans like the trillion dollar coin.

Understanding the difference in those two plans is a bit involved, so I figured it might be useful to go into them in detail, and why they aren’t, well, two sides of the same coin. Yes, superficially both seek to neutralize the debt-ceiling. But one does so in a way that trips through a dozen legal and economic minefields, and the other, while superficially very gimmicky, is actually a very straightforward approach that avoids virtually all of the problems inherent in the President’s 14th Amendment plan.

So, without further ado: what is the debt ceiling? Why does it even exist? What is the President’s 14th Amendment plan, and why is it problematic? What is the mint the coin strategy, and how does it work legally and monetarily? And finally, let’s look at why minting the coin isn’t merely a better plan, but also avoids separation-of-powers issues and renormalizes government back towards a healthy approach to governance where major changes to the status-quo require active legislation rather than having to constantly try and dodge crash-by-default timebombs. In fact, those final points mean I think the President should mint the coin whether or not he gets an agreement to raise the debt ceiling. But we’ll get to that in due course.

The Debt Ceiling

The debt ceiling is a legislative limit on the total public national debt held by the US Treasury. In the United States, the power to raise debt belongs to Congress and not the Executive Branch, thanks to Article I Section 8: “[The Congress shall have power] to borrow money on the credit of the United States”. Congress delegates that power by statute to the US Treasury, up to a defined limit. The limit was first set in 1917, and has been updated several times since.

The debt ceiling was most recently lifted in December 2021 to its current limit of $31.4tn, and the United States hit this limit around January 19th this year. The U.S. government is now operating solely on its remaining cash balance. It can no longer borrow to get new cash because of the debt ceiling, and its next infusion of tax revenue will occur at the end of June, which will be too late.

At the end of April, the US federal account stood at about $350bn. As of yesterday, it’s about $57bn. In a few days it will simply run out. The exact day is unclear, but on one of the days in the week 5-9th of June, the US will be unable to clear its overnight debt payments for the day, and the US will, for the first time ever, be in actual default.

If this happens, US debt will lose its trusted status in the market and the cost of all future borrowing will price in this new reality. The US’ total debt is very large, so even very small spikes in the cost of borrowing quickly add up to hundreds of billions of dollars a year. A rise in the base cost of borrowing of even just one quarter of one percent translates to about $50bn a year of direct additional debt payments.

Basically everyone agrees that this would be terrible. But that raises the pretty obvious question: why do we even have a debt ceiling at all?

The debt ceiling is, after all, a completely arbitrary figure. It has no intrinsic economic purpose or significance—increasing the ceiling by $100tn does not incur $100tn of new debt, or have any effect on the wider economy whatsoever. The ceiling’s value, rather, only determines when the next debt-ceiling fight happens. And this is its point: The debt ceiling forces Congress to take another look at the issue, and provides an artificial negotiating advantage to those who want to extract concessions from the governing party. That’s because maintaining the status-quo necessarily requires passing new legislation.

Notice that this is an inversion of the traditional “schoolbook” model of US governance. Under that model, major changes to the status-quo would normally require legislation passed by the Congress and signed by the President to take effect. Legislative timebomb clauses and the debt-ceiling invert that normal ordering. Here, instead, the status quo changes unless the President, House, and Senate can all bang heads together and kick the can down the road. When the President, House and Senate are not all controlled by the same party (and, for issues subject to filibuster rules, even then without a supermajority) this forces a negotiation that is advantageous to the minority party: They get to hold the country hostage.

These timebomb-style games-of-chicken have always been structurally bad. Passing legislation in the United States is constitutionally hard on purpose, because it is normatively good for big changes in the governance status-quo to require debate and agreement in the political branches. Sunset clauses and debt-ceilings invert this so that maintaining the status-quo and avoiding catastrophe is hard, and requires debate and agreement in the political branches. That’s a perversion even under the best of times. In a time when the political branches are dysfunctional and can barely agree on anything, it’s wildly irresponsible.

All of which is to say: the debt ceiling is not only bad because defaulting would be bad, it’s also structurally bad because it inverts the traditional model of decision-making, and sets the country up to periodically try and disarm a timebomb that the political branches self-evidently are now too dysfunctional to reliably defuse.

The President’s 14th Amendment Plan

The administration, for its part, seems to be leaning towards the 14th Amendment solution, so let’s start with that one. The claimed authority here comes from the 14th Amendment’s Section 4, which reads:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. […]

Here, the argument is that the debt ceiling is inherently unconstitutional, because the debt ceiling legislation means that the US government would be unable to pay its debts. The theory states that since the 14th Amendment ensures that public debt shall not be questioned, that implies a conflict between the 14th Amendment and the debt ceiling legislation. As all schoolchildren know, if there’s a dispute between legislation and the constitution, the constitution wins. So under this theory, the executive branch can declare the debt ceiling unconstitutional and borrow straight past the limit.

Hurrah!

The problem is the plan doesn’t work.

The first, and most obvious defect in this strategy is that the US government doesn’t just need money in order to service its existing debt. It also needs money for, well, everything else. If the 14th Amendment permits borrowing to avoid a default—and that is not at all clear—it definitely doesn’t cover borrowing to cover non-debt obligations like, say, paying government employees, its invoices, or social security.

Even when it comes to the very narrow issue of just raising debts to avoid a default, it’s not at all obvious that the 14th Amendment permits even it.

First, let’s dispense with the idea that this is a statute-disagrees-with-constitution issue, because it’s just not. It’s a separation-of-powers dispute. To execute the 14th Amendment plan, the President would need to borrow against the credit of the United States. That’s a power given to Congress in Article I Section 8. Congress has only given a limited delegation of that authority to the Treasury—and worse—that limitation is very explicit that the President must not exceed the specified ceiling.

Secondly, while the 14th Amendment says that public debt shall not be questioned, it doesn’t say how the government must raise money to service those debts. It doesn’t follow at all from the 14th Amendment that honoring the United States’ debts requires the President to raise some other debts, absent a grant of authority by Congress to do so.

That might not be obvious, but here’s an extreme example to make the point: if the President decided that a different way to honor the debts was to invade Denmark and steal all of the gold in their Treasury, everyone would agree that’s pretty obviously not authorized by the 14th Amendment. Similarly, another way to raise money to honor the debt would be for the President to unilaterally issue a one-off emergency tax on the public without consulting Congress. Again: nobody would think the 14th Amendment authorizes the President to do this just because the 14th Amendment says that public debt must be honored. The same would go for selling federal land, or exports of military equipment against Congress’ express prohibition.

And this is the crux of the problem: it doesn’t follow from the 14th Amendment that the President can raise debt independent of Congress, even if it states that debts must be honored.

But wait! It gets worse. Not only does the 14th Amendment fight get the president into a separation-of-powers fight with Congress where he might not succeed—and does so in order to get money that doesn’t even keep most of the government operational—the legal status of all debt incurred past the ceiling under this plan has a very unclear legal status.

Will that new debt be honored? Maybe. Probably. I don’t know. Nor do you. But most importantly: the markets don’t know. And the 14th Amendment won’t guarantee it either: Debt past the ceiling isn’t public debt authorized by law—in fact, it’s explicitly not authorized by law!

In other words, when the President raises debt past the ceiling under this plan, that new borrowing is qualitatively different to existing borrowing, and comes with all sorts of new risks to the financial institutions purchasing it. And—as night follows day—financial instruments that carry more risk charge higher premiums. So, despite all the trouble and limitations of this plan to bypass the ceiling, we still somehow ended up with basically all the problems we were trying to avoid anyway: the government still shuts down; social security still doesn’t get paid; and the markets lose trust in the U.S.’ debt anyway and so we still see a massive surge in debt interest rates and increased debt payments.

So, yes, it’s fine—admirable, even—to find ways to creatively ignore the debt ceiling.

But—I’m sorry—the 14th Amendment plan to do it is bad. It’s the wrong way to do it.

The right way to do it is the coin.

Mint the Coin

The Mint the Coin strategy, or “31 USC 5112(k) Treasury seigniorage plan” if we want to be very boring about it, is very different, both technically and legally. Here, rather than trying to argue that Congress’ debt ceiling is unconstitutional, it takes a radically different approach rooted in the inspired observation that, from the government’s perspective, money and debt are the same.

This is perhaps not obvious, but here’s why: If you buy $20 worth of Treasury debt, the US government definitionally has a debt obligation to you in the sum of $20 (plus interest). But if you have a $20 bill in your wallet, the US also has an obligation to you in the sum of $20. It says so right on the bill. They’re both a Treasury-backed financial obligation, just in different forms.

So let’s walk through this plan and see how it works.

As with debt-raising, Congress has the ultimate authority in deciding how the US issues hard currency: “[The Congress shall have power] To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures”. This authority is separately delegated to the Treasury (which sub-delegates it to the Mint for coins and to the Bureau of Engraving and Printing for notes) under a limited grant that precisely defines the types of currency that the Treasury can create, as well as their form, and, in most cases, their denomination and maximum circulation.

But there is one exception, described in 31 USC 5112(k): The Platinum Coin.

The Secretary may mint and issue platinum bullion coins and proof platinum coins in accordance with such specifications, designs, varieties, quantities, denominations, and inscriptions as the Secretary, in the Secretary’s discretion, may prescribe from time to time.

The breadth of delegation here is not an accident of drafting. The clause is designed to permit the Secretary to mint special-edition coins at any value or design without needing to bother Congress with the specifics. While its drafters expected that to be for collectable coins, the Secretary can absolutely choose to make high value coins—yes, even trillion dollar coins—if she wants to. She doesn’t even need any particular reason. She just can: Congress gave her that power. The only restriction she faces is that the coin must be made of platinum, and that it must otherwise operate like any other coin.

So why does minting a trillion dollar coin help with the debt ceiling? It all comes down to the way hard currency is accounted for inside the federal government.

Once the Secretary authorizes the creation of a trillion dollar coin, the Mint creates the physical coin itself, probably with a lightly-modified commemorative coin design and an existing platinum coin blank. The Mint then takes that physical coin across town and deposits it at the Federal Reserve. As with all other coins deposited there, the Mint is then credited with the coin’s seigniorage, i.e., the face-value of the coin minus any costs incurred creating it. The Fed then holds the coin as an asset.

Notice that in economic terms, nothing has really happened here yet—at least beyond the small-dollar costs of the metal and the bureaucracy in processing it. But in accounting terms, the Mint has just been credited with $1tn into its account by the Fed, and the Fed balances its balance sheet by holding the $1tn coin as an asset alongside all of its other multi-trillion dollar assets.

That $1tn payment to the Mint is operating surplus for the Mint, which, like all government department operating surpluses, is deposited back to the Treasury General Fund. Armed with this new money, the Treasury can spend it to keep the government operating and to satisfy its debts, invoices, wages, and other obligations.

There’s two easy mistakes to make with this plan if you’re not careful, so let’s tackle those now. Because this plan doesn’t give the executive branch free rein with the money, and it doesn’t have a direct inflationary impact.

On spending authority, this doesn’t touch or upend Congress’ budget power. The new $1tn ends up in the Treasury General Fund, but it isn’t the Executive Branch’s money to spend as it pleases—that still requires Congressional appropriations. This plan lets the executive branch dodge the debt ceiling. It doesn’t let it dodge the federal budget.

On inflation, isn’t this a case of “printing money” that will trigger hyperinflation?

No. And not just because it’s stamping the money, not printing it.

When countries that perform unchecked currency printing spiral into hyperinflation, the proximate cause of the spiral isn’t printing the money. It’s spending it. Here that’s not the case. Counter-intuitively, even if the government is making new currency, its total spending after minting the coin is identical to what its spending would have been with just a vanilla debt-ceiling increase. It’s inflation-neutral.

This is more visible if we use an extreme example. Suppose the government were to mint a $999tn coin, and not just a $1tn coin. Here the practical result is that the Federal account will have a very large number in a database. But no other economic effects are occurring anywhere else: it doesn’t impact anyone else’s money. The coin isn’t in circulation, and it doesn’t change the budget—at least compared with simply raising the debt-ceiling by any other means—and so it is no more or less inflationary than any other mechanism of raising the debt ceiling and spending at the current budget rate. Of course, if Congress decided to start spending the $999tn money through gigappropriations, then, yes, sure, that would be hyperinflationary. But that’d be inflationary whether it’s funded by seigniorage or by external debt; it’s the spending not the financing that triggers the inflation. And, just as importantly, that’s not something the executive branch can do independently of a Congressional appropriation.

In short, the whole Mint the Coin scheme is just a very elaborate accounting mechanism to restructure some of the debt to be Fed-managed rather than Treasury-managed. That’s because one of those debt piles has a Congressionally-imposed maximum, and the other has a Congressional grant to the Treasury Secretary to mint coins with an unlimited upper value.

That’s all it is. It’s fancy accounting wrapped around a physical coin. It’s not got any wider economic significance beyond that.

But while minting the coin feels a bit, well, gimmicky and undignified—and it is—it serves several very important purposes that the President’s 14th Amendment plan does not. First, and most importantly, it uses a delegated power from Congress in a way that is explicitly authorized, in contrast to using a Congressional power in a way that is explicitly unauthorized. That side-steps the separation-of-powers fight that the 14th Amendment plan would otherwise involve entirely.

The second great thing is that it’s very limited in scope. Congress can, if it chooses, amend the law to withdraw the authorization from the Treasury Secretary to mint trillion dollar coins. A bill to withdraw that authorization—perhaps in exchange for repealing the debt ceiling—for example, is entirely possible. And even if Congress does not withdraw the authorization, there is no opportunity for executive misbehavior here: Federal spending is still firmly limited by Congressional appropriations. This isn’t magic money for the president to use as he pleases, and has no effect on the rest of the economy beyond what would be the case if the same spending were debt-financed rather than money-financed.

The third great thing is that it stabilizes the national economy by defusing the national-debt timebomb permanently. Changes to the status-quo, whether for better or for worse, can and should always be done through affirmative legislation. It is bad enough that Congress puts timebombs in its legislation. It certainly should not put one under the economy as a whole. This defuses that bomb forever.

The next benefit is the delegation of authority to the Secretary of the Treasury’s total discretion means there are very few avenues to appeal her decision. It’s fully hers to make; the executive branch doesn’t stamp on anyone else’s toes to do it. It’s not only plainly lawful: it also doesn’t implicate anyone else’s interests. It is not clear who, if anyone, would have standing to oppose it.

And the final great thing about this plan is it simply doesn’t involve the markets at all. All existing debt is honored, and no new debt is created with any type of uncertain legality. There’s no new uncertainties for the markets, and nothing for them to reprice or to price-gouge to take advantage of the crisis. It just averts it.

Finally, if anyone in Congress happens to be upset that neutering the debt ceiling undermines their ability to re-debate the topic of total federal debt, then on that, too, I have happy news: Both chambers of Congress independently have the power, if they wish, to create new standing committees or rules in their respective chambers, or to periodically compel new debate on the topic within their respective bodies through Congressional rules. They don’t need a timebomb under the economy to force internal debates about overall spending.

In short, ending the debt-ceiling is a very good idea. Defaulting would be catastrophic. But the 14th Amendment is the wrong tool for this job.

It is true that when you’re trying to defuse a bomb, you sometimes have to turn a few screws. But that doesn’t mean you have to use a spoon to do it—especially if there’s a screwdriver lying next to you.

If a deal cannot be reached before zero-hour—and honestly, even then—the right answer is clear: You just gotta mint the coin.

Let’s be honest. The British Monarchy is a very weird institution. And I’m saying that as a Brit.

I grew up in the UK. Not in London, of course. God no. London might as well have been foreign; a place full of bankers and lawyers and politicians. People you’d see on television, but who would never visit unless it was election season and they wanted a photo wearing a high-vis jacket in front of some heavy machinery to collect votes.

No, I grew up in a little town famous—if such a word can even be used for it—for being a short drive from the nearby car assembly plant and an oil refinery that drove the local economy after a few centuries of industries coming and going, each making it briefly livable and then collapsing back into obsolescence. A town where the locals knew you had to work hard to live, but also knew that others who didn’t would be the ones setting the rules from a distance.

And sure enough, today there is a new ruler: an elderly man who has never worked a day in his life, and, thanks to his (literally) crowning achievement of being born to the right family and managing to outlive his own mother, now gets a national parade and to subjugate everyone in the entire United Kingdom.

His face will literally be on the money.

So when my international friends have asked me this week if I’m excited for the coronation, “no” is very much an understatement. I am not especially anti-monarchist, but the whole thing has me Googling pictures of guillotines and quietly thinking that most treasonous of all British thoughts: that perhaps the French had a point.

Much of my dislike for the event comes not so much from the event itself, but from the truly awful coverage and takes about it from the UK and around the world. The obsession by media and major British institutions in trying to make the coronation a Big Thing(TM) is—for want of a better description—extremely gross and cringe. The coronation is simply not a profound, important, or patriotic thing to normal working people, no matter how many supposedly serious commentators declare it to be so. It’s obnoxious and insulting enough when that lie comes from the British government as a distraction from other, actually important things. When it comes from the British media, it’s pathetic and frankly disturbing.

At the same time, the reactionary anti-monarchy takes, especially in Europe and the U.S., are somehow often just as bad, usually rooted in the observation that Kings are not democratically elected, or noticing that the royal family is comprised of genuinely awful people.

Thanks. I assure you, we know.

Not all takes are terrible though. My favorite comments have come from my Ukrainian friends, which roughly sum up as “we absolutely do not understand why Brits are doing this, but it seems to make you all happy, so we’re happy for you”. It’s fabulously sincere and genuine both in its bafflement at the absurdity of it, and its genuine happiness for Brits that the little dour island gets to have a fancy-dress party, like a grumpy Eeyore wearing a party hat.

The problem with the both the pro- and anti-monarchy takes, though, other than their shallowness and fake performativity in both directions, is that most people—including most of the institutions inside the UK itself—seem to have forgotten what purpose the Monarchy actually serves as an institution to modern Britain, or what exactly it’s for. And it’s not tourism, or opportunities to wave flags. The real value in the British Monarchy is that it keeps the pomp of state as far away from the Prime Minister as possible, so that they never get carried away and forget that they are not—and never will be—the King.

Let me explain.

The executive branch of every country has to juggle operating in two rather different domains at the same time: domestic and international. For democratic countries, leaders are explicitly decoupled from the State itself, at least domestically. They may have a bully pulpit, but their power is not absolute, and they are required to drive their domestic agenda by persuasion and navigation of elite and public interest groups. Only then can they pass a law that is enforced by the coercive police power of the State. It is a difficult process on purpose; it is not automatic.

The international domain is quite different. Here, leaders—including democratic ones—greet each other not just as some politically well-connected foreign individual, but rather as the embodiment of the foreign state itself. When the U.S. President lands in London for a state visit, he is greeted by the British ceremonies of state not because Britain has some particular respect for the man Joe Biden, but because, for the duration of his visit, he is America.

Perverse as it might sound to say, but the ceremony is not for him. It’s for you.

Authoritarian countries do not bother as much with switching modes for the two domains. When a dictator speaks for his country on the international stage, he speaks for his country. No difference there. But when he speaks domestically he also speaks as the state, and his word is law. On the international stage, at least, the roomful of near-equals might still choose to ignore his words. But the danger of authoritarianism is that when the authoritarian speaks his will into domestic law, those words are enforced coercively by the state without the need for prior discussion, navigation, or even recognition of the private interests of the citizenry.

For democratic countries, this duality causes a really odd—and very non-obvious—mental drift for democratically-elected leaders that, if not actively guarded against, insidiously pushes them towards authoritarian and anti-democratic thinking as they last longer and longer in office: they lose the mental distinction between themselves and the state.

Newly elected democratic leaders tend to navigate the domestic front rather well. After all, it’s basically a prerequisite for the job. By contrast, they usually find themselves out-of-place on the international stage—it has no analogy in normal public life. After a while in office this reverses. The international stage becomes second nature, and the domestic one starts to feel uncomfortable.

This basically comes down to ego: as a leader on the international stage, you are treated with enormous dignity, respect, and deference, and your authority to speak on behalf of your country is implicit and unquestioned. You get fine food; visit fancy palaces; meet famous people. When you land in their country they throw literal parades in your honor!

The adjustment when you fly back home is palpable. You are greeted on return by your nation full of ungrateful yobs who do not see you as the forever-president like your fancy new friends do, and these dirty plebs instead insist that you degrade yourself by doing nasty petty things like “defending your record”, facing media accountability, or articulating a plan for the future, even though that means implicitly criticizing yourself for having not already done it yet.

It is perhaps no surprise, then, that democratic leaders start slowly disengaging from the ugly world of domestic democratic process, and instead start longing to be something, well, kinglier.

The worst part of this insidious shift is that it always occurs alongside a parallel drift in the body-politic when a leader stays in power too long: If a person has been leader for just one term or two, it is relatively easy to see how another person may replace him, and to simply vote him out. But when a leader has been in office too long, it starts to become hard to see anyone else fitting the great leaders’ shoes. After all, there are two candidates: One is the God-Prince and Father of the Nation, unquestionably fit for office, and whose statesmanlike knowledge in all matters of state are second nature. His opponent is just some guy—No, worse: a politician.

I don’t know why, but the terminal limit for this effect seems to be just over a decade or so. Leaders, and in some cases, entire parties, that have been in power too long lose interest in negotiated improvements to domestic life, and start instead to become obsessed with power for its own sake, often with horrendous effects both at home and abroad. Some people certainly fall prey to this impulse much earlier, and some hold out longer, for sure. But there is no shortage of examples of individuals who were once celebrated by the public on their first election to office and who stayed in power long enough to become a villain to their own public and neighboring states.

America’s solution to this problem, for what it’s worth, is the 22nd Amendment: no president may be elected more than twice. No matter how popular you are, as the clock strikes Twelve O’Clock eight years after you take office, the trappings of power instantly evaporate and the Constitution transforms you back into your ordinary pumpkin self.

Britain has no 22nd Amendment. It has a different solution: someone else wears the crown.

In the United Kingdom, anyone can be Prime Minister. But you will never wear that crown. No matter how powerful or popular you are, your colleagues will have sworn allegiance to someone else. The British Armed Forces; her Police Forces; her Intelligence Agencies have allegiance not to you, but to them as embodiment of the State itself, and never to you personally. If you win your election you will have a nice (but not elaborate) house and office. And once a week you go meet the King in his palace for the sole purpose of reminding you that—no matter what—you inhabit the world of mere mortals, and will never get to live in the lofty realm of kings.

The coronation’s job, then, is rather strange in what it attempts to do: it is the gate between the king as man and the king as state. Its functional job, if you draw back the curtain a bit, is to throw so much pomp and ceremony at the little man in the chair that everyone is dazzled and simply forgets that he’s just an unremarkable man with no particular achievements, and set him up to authoritatively represent the nation in all matters of state going forward.

To be clear: I’d rather it be someone else. Honestly, pick someone out of a phone book. I’m no fan of nepo-babies having generational fame and wealth air-dropped on them for no reason other than birth. I’d certainly prefer not also giving them constitutional status.

But his job is, ultimately, just to wear the crown so Rishi Sunak—and others like him—can’t. The Monarchy is the British constitutional mechanism of perpetually reminding the Prime Minister that, no matter how many votes they get, nor how rich, or how famous, they will always be a little man too; forever smaller than they want to be, and to save the nation from what it would become if it reverted back to the age of real kings.

Other countries solve this problem in other ways. No other country has a person whose job is to remind the political leader of the nation once a week, to their face, that, despite everything, and no matter what, they’ll always be, well, a little bit shit. No other country would tolerate it. Modern Britain has it as its constitutional bedrock.

And there’s just nothing that could be more British than that.

Every national security leak is a saga in five parts. This one is no different.

The first of these stories is always the one written by the national security apparatus itself, though originally intended for a more select audience. It shows the world as the intelligence community sees it, and with the curtain pulled back. Along with the stories of foreign governments and targets, it also tells a story about the IC itself, and its analysis, priorities, and the mechanics and people through which they see the world and report on it out to policymakers.

The second story is the rush of the chase and the scramble to catch the leaker; the trail of clues that starts with a picture of a classified document and the journey as journalists and government investigators race to identify its photographer.

This second story gives way to the third: the human story of the leaker themselves. Who are they? How did they do it? What signs did their friends, family, and colleagues see as they changed from trusted official into public leaker? And what motivated them to reveal the things they were supposed to keep secret?

For many, the saga ends here. With the documents published and the leaker starting their long and arduous journey through the federal criminal justice system, the story moves on to other, more current things. But two more stories are due.

The next part is the damage assessment and the unfortunate reminder that leaks often come at a price. And the fifth is the story of the future, and what the government will try and do to stop it happening again.

For a variety of reasons, these final two stories usually get little attention. They are more bureaucratic and inward-facing than the others, and are usually poorly explained. They’re also written by the government—who are no neutral party in the story they are trying to tell—and it usually suffers itself from over-classification, over-abstraction, and, perhaps most unforgivably to the public in the relentless news cycle: they’re late to the party. By the time those stories are ready to be told, it’s old news, and the world has moved on.

But while those last two stories are the least well understood, they’re also important. So let’s talk about the damage. What’s in this leak? Is it really so bad? Were sources and methods lost? Is it repairable? And who pays the price when leaks like this occur?

The Leak

The Discord Leaks is a collection of approximately 300 photographs taken from the JCS daily brief over a few months, as well as from the CIA Operations Center Intelligence Update. Eight of these are high-resolution images from a briefing in early March that are readily available on the Internet. These eight mostly relate to Ukraine’s planned Spring counteroffensive and the operational status of a few active combat areas in Ukraine.

One of these documents was clumsily altered by a pro-Russian Telegram channel last Thursday. That laughably terrible attempt at photoshop changed a table of Russian casualty numbers down by a factor of about 10 and inflated Ukrainian casualty numbers. Amazingly, despite the photoshop being glaringly obvious, they were quoted by Tucker Carlson to his nightly audience of 2.5 million conservative viewers nearly a week after they were shown as fabricated.

Beyond those eight high resolution images floating round the Internet, a second set of about 50 high-resolution images exist, and two publications appear to have additional images beyond that set—about 100.

The full archive covers a far broader set of IC analytic product than might be obvious just from the public eight photographs, and they cover the whole spectrum—it’s not just maps and military intelligence. This information is mostly, but not entirely, in the form of short-form summary reports, and so is relatively dense in its coverage of global events and equally dense in the variety of sources and methods that underlie that analysis.

From a damage-assessment perspective, it’s important to notice that the information in these documents isn’t all the same. Some are essentially inert; the IC will lose no sleep to lose it. Other bits will have had senior intelligence officials throwing anything not nailed down across the room, clearing their schedule, and trying desperately to extinguish the dumpster fire.

So let’s categorize them and take them in turn. The information here splits broadly three ways: military intelligence about Ukraine, political analysis using non-fragile sources, and foreign intelligence. They’re quite different.

Military Intelligence about Ukraine:
Acute damage potential, but very short-lived

The first part of the leaks is intelligence regarding Ukraine’s military operations in the very immediate term. These leaks include maps of then-current operational areas and positions, training timelines, and confirmed delivery estimates for plausible and planned force deployment with a timeline in the days-to-weeks ahead. The documents also reveal a lot of technical information and plausible windows of opportunity for Ukraine’s planned Spring offensive.

The damage of losing this kind of information is extremely acute if the information is fresh and sustained. But the information is also extremely time-sensitive, and so the damage of this particular category of information in the leak tapers off very quickly. So far as I can tell, most of the people downplaying the damage of the leak are basing it on this observation.

One document, titled “Ukraine: Disposition of Ukraine Armed Forces Around Bakhmut, February 24” shows a very detailed map of Ukrainian forces in and around Bakhmut from the day of the report. Another, titled “Bakhmut City Map as of 01 0600 EST Mar 2023”, shows Ukraine’s precise military locations within the city at the time with high granularity.

Had Russian artillery commanders obtained these maps within a few hours of the JCS writing it, it would have been an unmitigated disaster for Ukraine. There’s really no way to gloss over that. Had that map reached Russian artillery commanders on the same day, Russia could have killed a lot of Ukrainians as Ukraine scrambled to figure out what was happening and urgently repositioned everyone to try and mitigate it. That repositioning would have, in itself, been a massive disruption for Ukraine’s operations in the area, and an extremely valuable window of opportunity for Russian forces.

But wars are dynamic, and nothing stays still for long. The spots on the map no longer show where Ukrainians are; only where Ukrainians were. The intelligence value of those maps has mostly, though not entirely, “aged off” already.

Another map shows detailed air-defense locations in Ukraine, down to the types, locations, and effective range of the equipment. Let’s not be coy here: this is information that Russia has expended vast sums of money and equipment trying to obtain. Losing maps like these to the Russian military is horrific, and nobody should downplay it. It is less acute several weeks after the fact than had Russia gained it and used it while it was fresh—air defense systems in Ukraine are also mobile—but it is genuinely horrific for this information to have been lost. Don’t forget: Ukrainian air defense protects not just their forces, but also their cities from Russian bombardment. Ukraine and its allies have expended huge effort and costs to provide this air defense equipment. This map would have let Russian drones, missiles, and aircraft completely bypass it.

Other awful leaks in the set include detailed schedules and plans for Ukraine’s Spring counteroffensive. By colossal luck, the documents became public at the tail end of this schedule, depriving Russia of most of the value they contain. But it goes without saying that advance knowledge of schedules, equipment, and scale of a counter-offensive is very, very valuable to Russia’s military as they plan how to defend against it.

In short, this is a leak with a very direct cost that will certainly be paid in Ukrainian lives and destroyed equipment. Thanks only to sheer luck, the severity is far lower than could have been the case. And not to labor this point, but this luck is despite Teixeira, not thanks to any proactive attempt by him to mitigate those harms, or lack of damaging material in the documents as he posted them. At the point where he posted them, those maps were current. He posted it to a channel that had overtly pro-Russian members. The channel he shared it in was called “Bear-vs-Pig”; named for a racist slur commonly used by Russians against Ukrainians. That the documents didn’t route immediately into the hands of Russian commanders is not due to any attempt on his part to mitigate the harms prior to leaking those documents.

We don’t know yet if Teixeira wanted lots of Ukrainians to die as a result of his leak. But we definitely know he didn’t care if they did, and they certainly had the potential to cause colossal amounts of death—both military and civilian—in Ukraine, even if that huge potential was never fully realized.

Political analysis:
Embarrassing, but quickly forgotten

The second group of leaks in the archive is political analysis of public events. These do appear with classification markings in the documents, but don’t be fooled: the classification here derives from the accompanying analysis, not the fragility of the source.

Let me give you an example to show what I mean.

In the archive, one report talks about Hungarian Prime Minister Orban describing America as one of its “enemies” during his State of the Union speech. This paragraph is marked “C/NF”—short for Confidential / NOFORN. This is a great example of over-classification, but leaving that aside for a minute, notice that the classification marking here isn’t about a fragile source. Orban’s speech was televised, and the transcript was even posted on the Hungarian government’s website. There is nothing secret about it. The (C/NF) designation comes not from the source, but from the (amazingly banal) analysis that accompanies it, specifically the local US embassy’s view that it’s an escalation from Orban’s prior rhetoric.

Importantly, the IC’s source in this case is not fragile with respect to the leak. Orban will not mitigate his public speeches knowing that the US embassy is watching them. If anything, it probably encourages him. And he’s certainly not going to start doing his State of the Union speeches in secret.

A more complicated example is a document discussing circumstances under which Israel might take a more active role in helping Ukraine militarily. There is not obviously any direct source underlying this document, and it is marked “Exploratory Analysis”. It’s not reporting in response to a human source’s observations or some intercepted communication, but rather the output of informed brainstorming by IC analysts, almost certainly in response to a specific question posed by senior US officials. Israel might be unhappy with the IC thinking about this topic, and also upset that US seniors are asking questions about it. But there’s nothing fragile here. Israel can’t easily thwart the IC making such analysis in future because, to the extent that the reporting is based on any fragile sources at all, it does so extremely indirectly.

Political analysis can be embarrassing—sometimes acutely—but rarely degrade the IC’s capability over the long-term. The local ambassador, or, heaven forbid, the Secretary of State, might have to eat some humble pie and do an apology tour over it. But such is life. Everyone will move on quickly enough.

Foreign Intelligence Analysis:
Fragile and opaque longer-term damage

The third group of leaks is the meat of the IC: foreign intelligence, derived from the IC’s non-public signals intelligence and human source-based collection activities. What the IC refers to as “sources and methods”.

The leaked documents have dozens of examples of end-product foreign intelligence reporting. It discusses foreign leaders and their interactions with or about US adversaries; foreign businesses flirting with or actively engaging in sanctions evasion; foreign businesses and leaders planning strategic re-alignments towards America’s adversaries; political and military decisions being made everywhere, from Africa, to Asia, to the Middle East, and even of allied governments from Israel, the UK, South Korea, and even Ukraine, along with accompanying assessments as to their likely success and significance to America’s medium and long-term interests.

Foreign intelligence leaks are not like the other types of leak in this archive. Battlefield intelligence leaks tends to have a very fast age-off rate. Political analysis rarely have lasting impact because their sources are non-fragile. But foreign intelligence analysis really does rely on fragile collection capabilities, and the tail of damage for these can be both locally acute and age-off slowly.

This point is, hopefully, fairly straightforward. If the IC’s human sources are killed, jailed, or have to be extracted from country, or if sources stop helping the US because it cannot protect their identities, the IC loses the visibility and insights that come from those sources’ access. If influential people learn that they are being watched by American signals intelligence—not just in an etherial abstract sense, but the concrete knowledge that they really are targeted—they will become more paranoid and reorient their communications to use better secrecy.

To be fair, sometimes that reorientation will fail, and NSA will be able to get at their newly hidden information in some other way. But sometimes they will succeed, and NSA will just lose visibility of what those targets are doing. Worse, if the target knows not just that they are surveilled, but how, that reorientation away from NSA’s gaze is much more likely to be successful.

Unfortunately—and perhaps non-obviously—leaks can derail IC operations in ways that are rather unintuitive to a casual observer. A document that doesn’t explicitly name a source or method can nevertheless destroy it, and can cause harms in ways that are completely non-obvious to an ordinary reader.

A simple example of this, weirdly enough, is Bellingcat’s identification of Teixeira. For a full week, thousands of people have seen some of these leaked photos and the objects in the background. Almost none will have noticed a tiny patch of granite lurking in the background. But this tiny fact was important to a tiny number of people with extensive backgrounds in online investigations, and even then, only because of the addition and context from other non-public sources discovered during their investigation.

In other words, just because you can’t see the significance of how something tiny in a photo can have massive repercussions doesn’t mean that experts with extensive experience and that little bit of extra context can’t.

That might all sounds a bit hypothetical. So let’s be concrete here. The documents reveal at least one human source to a specificity that means the IC will have had to intervene to protect them. For signals intelligence, picking it apart is even easier. It is fairly easy with this set of documents to identify a dozen specific NSA targets and the exact mechanism used to surveil them. Some of these targets won’t notice. Others will.

But why does it matter? Is the benefit of the disclosure worth the costs that they incur? That depends a lot on your priors and the specific information released and its value to the public discourse about what the government is doing. But beyond the human sources themselves for whom a sudden exposure can be life-threatening, the IC losing fragile accesses generally reduces the volume and quality of the IC’s reporting out to the US’ principal decisionmakers. In isolated cases, that’s painful, but manageable. But as the IC’s reporting degrades to rely more on guesswork and second-order sources, it ultimately starts producing weaker analysis, and that, in turn, means more errors by policymakers—both in terms of volume and severity. It means more unhappy surprises for America as global events shift without warning, and fewer opportunities for America to mitigate them before they become a critical issue that is far more expensive in blood and gold to resolve. Those costs are real as they build up in the aggregate.

Anyway, this post has gone on long enough, so I’ll just end with a thought experiment to ponder on.

Imagine a CIA officer walks into the Director’s office. “We’ve found a way to get the daily briefing for the Russian General Staff!” They say. “But, unfortunately, this op will be very expensive. To do it, we’ll need $ X”. Where is the tipping point where $ X grows large enough to flip from a “yes” to a “no”?

The real answer is probably eye-wateringly large. Just as we’d pay through the nose to see those documents because of the information they contain, our adversaries would dearly, dearly love to see these types of documents, and would unquestionably spend heavy resources to get them.

Ideally they shouldn’t just be able to log on to Discord to get them.

Today, several Russian state news agencies reported that Putin offered a 36-hour “truce” along the entire line of contact in Ukraine, starting at 12:00pm January 6th, running through midnight on January 7th, designed to cover the Orthodox Christmas period. Notionally, the offer was originally proposed by Russian Patriarch Kirill, and agreed by Putin. Ukraine has already rejected it.

The interesting thing about this offer is that it was designed to fail. There’s no indication that Moscow ever expected it to be accepted; including that it does not appear to address any non-MOD forces, and runs counter to logistical indications that Russia is preparing for additional bombardments of Ukraine during the Christmas period.

It also conspicuously offered now; it was not offered for New Years’ or for December 25. The Russian government bombed civilian infrastructure in Ukraine relentlessly for both of those to maximize disruption. The decision to offer it only for Orthodox Christmas is quite relevant to why it was offered at all.

Sometimes in negotiations—often, in fact—people make offers not so much because they want an agreement, but because it is important to show non-parties to the agreement that an offer was made and it was rejected. This allows the offering party to argue that their “entirely reasonable” demands were rejected by the “unreasonable” opposite party, despite the offer being intentionally constructed to get to a “no”, not a “yes”.

That’s what happened here. Putin’s offer isn’t really directed at Ukraine. It’s directed at two main audiences: an internal Russian audience, and a Western one.

The internal audience is the Russian public as a whole. A failed truce gives their propaganda two “helpful” strands to play with. The first is an argument that Russian government bombing of Ukraine isn’t really Russia’s fault, but somehow Ukraine’s. Any civilian casualties during Russia’s expected bombardment of Ukraine over the next few days will be grossly and instantly rationalized and justified—no matter how irrational and unjustifiable—as Ukraine “deserving it” for refusing the truce.

It’s important to remember that these arguments aren’t—and aren’t designed to be—coherent. Their purpose is to let people pre-inclined to believe it a simple way to self-rationalize their decision to support Russia’s war.

The second strand is a cynical excuse to draw on the Russian Orthodox establishment itself over the Christmas as a tool of propaganda and morale internally too, and to align it (again) explicitly to the Russian war. Putin’s failed truce lets them argue his religious piety and desire for peace in churches in Russia while he simultaneously bombs schools and apartments in Ukraine, and that Orthodox Christmas was unpeaceful because of Ukrainian leadership’s refusal of the truce, not because of Russian leadership’s decision to invade and continue operations during the period.

It also lets them use the dueling Christmas dates in Ukraine to argue that Kyiv’s decision to avoid the truce is uniquely anti-Orthodox, for a convenient repivot to why Putin, and not Ukraine, is the one who truly cares about the interests of the “Russian-speaking Christians” in the ostensibly-annexed regions of Eastern Ukraine, and why support of Putin’s war is the right approach for all Orthodox adherents in churches across Russia.

The Western-directed narrative is also important, and draws on the same two strands, but with a slightly more Western-orientation. Here, the argument will be that Zelensky was offered, but is not interested in peace, as an argument for reducing Western support to Ukraine. That will probably also draw on distorted comparisons with the famous “World War I Christmas Truce” that has, in recent decades, come to take on an over-sentimentalized and saccharin status in Western narratives of what that war and event was. For example, it will ignore how that truce was an emergent phenomenon from the trenches directed by soldiers in the trenches themselves despite military leadership, not directed by leadership.

It also makes for a convenient way to slot-in to pre-existing “war on Christmas” / “war on Christians” culture-war tropes in the United States and certain parts of Europe too, as a way of ultimately seeking to demoralize support in the West. Such narratives will inevitably ignore Russia’s bombing of Ukraine over the western Christmas period without even the pretense of a truce being offered. But again, such arguments are not designed to be coherent.

As is the nature of traps, Ukraine cannot avoid this trap by simply agreeing to the truce. Were they to do so, Russian forces would immediately break it in order to invite a response, whereupon Russia would then immediately declare the truce violated by Ukraine. Ukraine’s best bet—which to their credit, they appear to already have adopted—is to ignore it for the propaganda it is.

That all said, Russian propaganda to demoralize Western support is slowly getting louder, and at some point Ukraine and its allies will need to reckon with it directly.

But that, at least, is a problem that will have to wait until after Christmas.

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Over at Dog Shirt Daily—the awfully named, but otherwise great daily publication by Ben Wittes—Ben has a really interesting question that he proceeds quickly to not answer: does the House have any Representatives?

The motivation for his question is this post by Adam Kinzinger

It might not be a crazy question, but it turns out to be a simple one. The 20th Amendment of the Constitution solves it decisively. As of Tuesday at noon, Mr Kinzinger is, well, Mr Kinzinger, and not Representative Kinzinger anymore:

The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

But Ben goes on to ask a better question in the wake of it. If there’s no Representatives from the previous Congress, and there’s not (yet) any sworn-in Representatives from the new Congress, then by what authority is anyone in that chamber even electing a Speaker in the first place?

That’s a great question. Although admittedly the right answer is probably “who cares, it doesn’t matter, eventually they’ll work it out”.

But to me, at least, it’s a fun question to work through.

As it happens, bootstrapping authorities and power-transfer ceremonies are fascinating to me. They’re just really weird. That’s because what they are for and how they work are very subtly different.

In one sense, these ceremonies are mostly just a purely ceremonial hand-over of power from one collection of individuals to another. It’s really that simple. Under normal circumstances they’re a boring and mostly pompous show designed to pretend that the transfer of power is something more abstract and ethereal than one collection of individuals agreeing that another collection are in power now in accordance with the basic agreement of democracy that voters, and not violence, gets to decide what the agenda is for the next few years.

But in formalizing that hand-over, we always end up with a multi-step process that encodes a weird gap. At one point in the process, the previous set of people in power lose power. A few steps later the next set of people notionally take power. But between these two steps is a really weird gap where nobody is actually in charge. Usually nothing interesting happens in that gap. But the gap is fascinating because if something goes wrong during it, it’s usually a colossal mess to clean up. That’s because you don’t really know whether that job rightly belongs to the previous people or the next people, and in most cases, the gap is likely to be problematic only in the case where frictions between those two groups is already large.

It’s worth pointing out that this problem isn’t unique to the House of Representatives. It’s true of all non-continuing bodies (and all unitary bodies such as heads of state or government). So it also exists for the President too, as well as for Governors, many state chambers, and many countries’ executive and legislative branches around the world too. Each have their own weird formalizations of this process.

I’m admittedly biased here, but one of my favorite examples of the Power Gap is in the UK. There, the transfer of power after an election involves the previous Prime Minister tendering his or her resignation to the monarch, followed by the next Prime Minister being invited to form a government. That leads to a wonderfully bizarre gap in the UK where the (traditionally nearly powerless) monarch notionally has all of the executive power for half an hour or so, and spends most of that time waiting in their gilded living room eating cucumber sandwiches and hoping that the incoming PM could just hurry it up and get a move on so they can get on with their normal kingly day.

But what we’re talking about here is the Power Gap as it relates to the House of Representatives. The previous representatives were all auto-fired by the 20th Amendment, and the next collection of newly elected Representatives are not actually Representatives yet because none of them have actually taken their oaths of office. They’ve been avoiding that so far because tradition dictates that they pick a Speaker first. The oath being a hard requirement for transitioning from a Representative-elect to a full member comes directly from Article IV:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

In other words, it really is the case that, for the first time in at least a hundred years, the day has ended with the House having zero sitting members.

Before getting to Ben’s question of under what authority the Representative-elects have to attend Congress and pick a Speaker, it’s worth pointing out an additional oddity of the House of Representatives. Unlike the Senate, which is a continuing body, the House Rules also expire with each Congress.

What that means is not only does the House have no members; it has no Rules either. It’s a sort of lawless Power Gap vacuum where anything would go, if only there were someone with the power to do anything in it.

So what happens when the House has no Rules? The answer is we look first to the Constitution itself, and then to general parliamentary law, as described in the applicable provisions of Jefferson's Manual. These rules are ultra-basic rules of underlying democratic principles of debate that long-predate the Constitution (and Jefferson). I’ll lose lots of friends for pointing it out, but Jefferson’s Manual is actually a fantastic example in its own right of America’s constitution that don’t sit in the main body of the Constitution itself, in a way that Britain embraces and America likes to pretend isn’t the case.

But glossing quickly over that, these rules do such ultra-basic things as provide for the Clerk of the House to Chair debate in the chamber until a Speaker is selected; for debate to occur at all; and for certain motions (such as a motion to adjourn) to be passed; for the yays and nays to be counted; and for basically everything else to fall to a ruling by the Chair which can be appealed by the full body. It’s essentially just the bare minimum to get the House into a position where it can vote to select a Speaker and adopt some Rules that let it get started on the more heavyweight work of actual legislative business, like establishing committees, or scheduling bills.

But even a House with some basic rules needs some members. Which gets us back to Ben’s question. Under what authority do Representative-elects even vote on a Speaker?

Here there’s basically three ways to rationalize this. Two are about divining an inherent right in the Constitution for Representative-elects to vote on a Speaker, and the other is a process argument about timing. Let’s go through them.

The first classical argument comes from Deschler's Precedents Volume 1 Chapter 2 — specifically Footnote 13 on Page 89:

Although no constitutional provision uses the term “Member-elect” or “Representative-elect”, the Constitution impliedly empowers Members-elect to vote for a Speaker (under art. I, Sec. 2, clause 5, the House chooses a Speaker before the House is sworn), and to demand the yeas and nays (art. I, Sec. 5, clause 3), and uses the term “Representatives” when referring to Members not yet sworn (see art. I, Sec. 6, clause 2 and art. VI, clause 3). Some sections of the United States Code similarly use the term “Members” when obviously referring to Member-elect. See 2 USC Sec. 25 (administration to Speaker of oath by “Member”); 2 USC Sec. 27 (changing the place of meeting before Congress convenes, to protect the health of “Members”). See also 2 USC Sec. 21 (administration of oath to “Senators”).

As Deschler would have it, the Speaker is chosen before Representative-elects take their oaths, and the Constitution requires that the House pick its own Speaker. That must mean, according to Deschler, that the Constitution must imply that Representative-elects have inherent authority by raw force of election to select their Speaker prior to becoming a full Representative.

Far be it for me to disagree with this approach, but I’ve always found this particular line of reasoning to be a bit dubious. After all, while it’s true that the Constitution requires Representative-elects to take their Oath before becoming Representatives, and it’s true that the House of Representatives must select their Speaker, it’s not at all obvious to me that the Constitution requires Representatives to select their Speaker before taking their oaths. By switching the order round (take the oath, then select the Speaker) you avoid the whole mess.

It’s true that, by tradition, the Speaker’s oath is administered first and the Speaker then administers the oath to other members. But this is just tradition. There’s no Constitutional reason why the person administering the oath needs any kind of special status at all. The Representative-elects could simply administer these oaths to each other. After all, the Speaker in every Congress has their oath administered to them by a Representative-elect, and in early House practice, Representative-elects had their oaths administered by their respective State delegations, not by the Speaker.

A better way to get to the same argument, at least in my view, is to use Article I Section 5, clause 1:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Here, this argument relies on the House being judge of the returns of its own members. For the Senate, this poses no problem: the sitting Senators can judge the returns of the Senator-elects with no issue. But for the House this leads to a catch-22 situation. How can anyone judge the validity of an incoming Representative’s election if there are no Representatives yet to judge it? And if all of them are elected without such judging, then what is the point of the clause? You can’t even do it iteratively, because then the first person to take the oath has nobody able to judge it, and the Constitution expressly strips anyone other than the House from making the judgement.

It therefore makes sense to conclude that the House doing the judging of returns in Article I Section 5 must be a House made up of Representative-elects, and not Representatives. By extension, if the Constitution envisages that Representative-elects are the House in Article I Section 5 for returns, then perhaps they are also the House in Article I Section 2 for choosing a Speaker too.

At least to me, this seems like a stronger form of Deschler's argument, though I am certainly no Deschler. Even here you could perhaps argue that the Constitution could be read (despite common practice) to allow the previous Congress to judge the returns of the incoming Congress prior to leaving office, to avoid the implication. There’s a bunch of reasons why I think that’s an more problematic argument than it falling to the incoming group of Representatives. But I include it for the sake of argument because it means even here the implied right of Representative-elects to pick a Speaker prior to taking their oath of office isn’t automatic. There are other ways to read the clause.

But to me, the strongest alternative take is that the Representative-elects’ choice to pick a speaker is really an informal vote that is formalized by the adoption of the House Rules once everyone’s oaths are taken, thus avoiding the temporal gap. In other words, the order of operations is:

1. Representatives choose who their Speaker will be, and this process gets the pomp that implies but does not actually entail a binding vote.

2. The winner of the informal vote takes their oath

3. The other members are sworn in by that first member, and themselves become full members

4. The members then vote on the Rules, which are adopted, and this formalizes the selection of the Speaker (and the Rules).

Which one of these three arguments you prefer is up to you. It doesn’t really matter, because, in real life, the power of the Representative-elects to pick a Speaker comes from the more arcane and normative feature of the Power Gap itself: they are Representatives by force of election, and no technicality of ordering in the pomp of the transfer will deny it to them, since the order of events at the start of the Congress are, in reality, mostly ceremonial.

Luckily for the Representative-elects, there’s not a lot of practical difference between being a Representative-elect and a Representative until the Speaker is selected anyway. Representative-elects mostly obtain the same powers and privileges of their full counterparts, including the protection of the Speech and Debate clause, compensation, office space, and expenses.

It’s true that they cannot vote on or introduce legislation, but until there is a Speaker they can’t do that anyway. In fact, the only obvious difference is that the payment of their salaries might be delayed if the situation is not resolved prior to the end of the month. So if it’s resolved in less than a month, they won’t notice the difference.

And, let’s be real, if it takes more than a month, they’ve got a much bigger problem to deal with anyway.

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The January 6th Committee has finally ended its investigation. The executive summary of the report can be found here. It has made referrals to the DOJ for criminal prosecution of Donald Trump, and his key allies, including John Eastman, Rudy Giuliani, Jeffrey Clark, Kenneth Chesebro, and Mark Meadows.

Four Members are also referred to the House Ethics Committee for failure to respond to committee subpoenas. These members are House Minority Leader Kevin McCarthy, Jim Jordan, Scott Perry, and Andy Biggs.

So what are the criminal referrals, and what do they mean?

First, the specific referrals are for five statutory violations:

• (1) 18 USC 1512(c) for Obstruction of an Official Proceeding

• (2) 18 USC 371 for Conspiracy to Defraud the United States

• (3) 18 USC 1001 for Conspiracy to Make False Statements

• (4) 18 USC 2383 for Incitement, Assistance, or providing Aid or Comfort to an Insurrection

• (5) 18 U.S.C. 2384 for Seditious Conspiracy

The first of these is a referral for Trump, Eastman, and others for “Obstruction of an Official Proceeding”—namely, the 12th Amendment’s Electoral College Vote Count process in Congress itself on January 6th. The allegation is that the “sole purpose and obvious effect” of Trump’s scheme was to “obstruct, influence and impede” the official proceeding of the Electoral College count in Congress which certified Joe Biden to become the President.

The second referral is for Trump, Eastman, and others for “Conspiracy to Defraud the United States”. Be a bit careful with this one: the name can be a bit deceptive. It’s not a reference to money fraud in the traditional sense that most people understand it, but rather, it’s an allegation that the scheme involved an agreement to impair, obstruct, or defeat the lawful functions of the United States government by deceitful or dishonest means.

The third referral is for Trump, Eastman, and others for “Conspiracy to Make a False Statement”. This statute—18 USC 1001—is routinely used against people who lie to government investigators during law-enforcement or congressional investigations. Michael Flynn, for example, eventually pled guilty to one of these charges for lying to FBI investigators during their investigation of him. Here it’s being used a bit differently. The referral is alleging that Trump, Eastman, and others materially misled Congress through its scheme to appoint an alternative set of “fake electors” and send their uncertified votes to the electoral college.

The report also alleges cases of witness tampering. One, for example, is an allegation that witnesses were promised amazing job offers from opaquely-funded organizations that were ultimately controlled by Trump and his associates in exchange for “failing to remember” in response to certain questions by the committee. The committee alleges that the witnesses who didn’t take that bribe found those job offers rescinded.

These first three referrals are all relatively straightforward, as congressional referrals to DOJ go. But the final two are super interesting. So before we get to that, and to understand why, we need to first understand the slightly strange world of criminal referrals from Congress.

In the US constitutional structure, Congress and the Executive Branch have different duties. Criminal prosecutions occur exclusively in the Executive Branch, overseen by DOJ, and not by Congress. Congress does, however, have an independent role to play performing its own investigations. Those investigations are done for a legislative purpose or an impeachment purpose, not for criminal investigative purposes. But if, in the course of their investigation, Congress (as a whole, or as a committee) discovers something it thinks DOJ should be aware of, it can make a criminal referral directly to DOJ.

DOJ is not obliged to do anything with these referrals, other than to write a letter in response.

Often, criminal referrals to DOJ are performative grandstanding. DOJ generally is better resourced and has better powers to obtain evidence than Congress when investigating crimes, and most Congressional committees operate publicly, so anything they uncover is usually known by DOJ long before the referral is made. It’s rare for Congress to know of a crime that DOJ doesn’t, and Congress has different priorities to DOJ. DOJ’s job is to get a conviction; Congress’ job is usually more about base politics. And so there is some considerable tension between the two branches when it comes to criminal referrals. After all, Congress weighing in on criminal cases can undermine DOJ’s ability to keep the eventual case from looking like it has partisan motivation.

But not all criminal referrals are useless or grandstanding: DOJ will generally not prosecute crimes relating to Congress without a referral from Congress itself, as a deferential matter. The most obvious example is 18 USC 1001 cases involving a witness lying to Congress, or cases involving disruption of Congressional proceedings.

In the case of the January 6th Committee, the first three referrals all fall into this category of cases that DOJ would normally want a congressional referral prior to opening a full investigation.

But the last two referrals are not like the others. It’s different in two key ways.

The first way it’s different is that these referrals relate to Trump only. The other three refer to Trump, Eastman, and others. The second way it’s different is that it’s not a crime specifically related to Congress. It’s doing something different.

The fourth referral is for “Inciting, Assisting or providing Aid and Comfort to an Insurrection”. Here, the committee alleges that Trump’s actions—and inactions—during January 6 amount to providing aid and comfort to the rioters at the Capitol, despite the absence of an explicit agreement; relying instead on his statements to various aides, and his otherwise inexplicable actions and inactions during the course of the riot.

The fifth referral is “Other Conspiracy Statutes”, but explicitly calls out the seditious conspiracy statute 18 USC 2384 and 18 USC 372. The committee notes in their summary that the leader of the Oath Keepers was convicted under this statute. The committee says it believes Mark Meadows could have specific evidence relating to such charges but could not obtain them due to Meadows’ refusal to testify.

But the insurrection referral is the most interesting of all of these. It’s not really about DOJ or criminal charges—although I don’t doubt for a second that the committee would be very happy for DOJ to charge it. Rather, it’s all about the 14th Amendment, and Section 3 disqualification. The relevant section is below:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Parsing that out concretely has fallen to the courts, as Ben Wittes describes in Lawfare. In particular, unlike impeachment, where permanent removal from office falls exclusively to the Senate to decide, Section 3 disability is decided by the Courts; it is not something that Congress merely declares.

But this is a problem too. Section 3 disability cases don’t involve Congress directly; Congress will not be one of the litigants in the case. So, while the judge will take into account Congress’ view, it won’t affirmatively seek it out either. If Congress wants to make its view known (specifically that January 6th was an insurrection within the meaning of the 14th Amendment, and laying out its reasons why), it needs to publish that now.

That’s what this insurrection referral is.

Without this, it would be possible for a judge to take the January 6th report and conclude that while the House concluded that insurrection occurred at the Capitol, they didn’t decisively conclude that Donald Trump was himself an insurrectionist within the meaning of the 14th Amendment. This referral guards against that. It shows decisively that, in the view of the House of Representatives, Trump was involved in the insurrection personally, and then sets out their body of evidence as to why they concluded it.

Of course, the judge is not obliged to abide by Congress’ view. But it adds significant weight to that eventual Section 3 dispute.

So that’s what the referrals are doing.

The first three are congressionally-related crimes that DOJ would normally not charge without a congressional referral. Those apply to Trump, Eastman, and others.

The seditious conspiracy referral is a bit different; it’s really tossing the open investigation over the fence to DOJ, now that the committee knows it will be disbanded when the next Congress is sworn in.

But the insurrection charge is different. It’s addressed to DOJ, but it’s really for the judge in an eventual Section 3 disability case; it’s setting out the committee’s view and assembling a body of work that the judge can use to declare Donald Trump unable to hold any office under the United States by virtue of him instigating an insurrection at the Capitol, and is therefore disqualified under the 14th Amendment.

Beyond that, the January 6th Committee has avoided the temptation to refer other criminal cases to DOJ that DOJ is able to conduct and investigate themselves.

That’s a good thing. After all, DOJ were already doing that anyway.

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In a post earlier this week, I laid out why a peace agreement between Russia and Ukraine was very unlikely in the near-term; they disagree too fundamentally on the terms of the peace agreement, and are both holding out expecting an negotiating advantage later based on their respective views on their medium and long-term battlefield prospects.

This post looks to answer a slightly different question: what are those terms?

The purpose of this post really two-fold:

• as a memorialization of the evolution of these negotiations so far as best as I can reverse-engineer them from public sources, starting at the beginning of the conflict, and how those terms have evolved on the two sides.

• as a reference for future negotiations, when they eventually materialize

It’s also partly a response to Peskov’s statements today:

These two phrases demilitarization and denazification have specific meaning in the context of Russia’s demands, and interpreting their precise meaning requires a bit of work to keep close track of the negotiations over time.

Note that because negotiations are generally conducted in secret, many of these are based on my interpretation of public statements by key figures and after-the-fact reporting; the formal drafts are not public.

Read more

Over at Zero Day, the fantastic cybersecurity journalist Kim Zetter has a great article with a warning: cybersecurity firms working to help Ukraine need to be careful if they want to avoid being direct participants in the war in Ukraine.

It’s a great article because it serves as a useful reminder: International law applies to individuals and organizations, not just states, and that getting involved in a war without real care and attention can be problematic in all sorts of unexpected ways.

The natural question that arises for executives and individuals working in Western companies reading Zetter’s article will probably be: am I at risk of being a participant in the conflict?

The correct answer to this question, of course, is “I am not your lawyer; hire someone who is, and then take their advice”.

But with that caveat aside, the answer is almost certainly no.

The unhappy news is that not being a direct participant probably does less for you than you might think. For example, it doesn’t provide immunity against Russian government reprisals against you or your company in a whole variety of different forms, ranging from Russian sanctions, Russian domestic criminal liability, or Russian cyberattacks against your own firm.

It also doesn’t prevent Russia simply ignoring IHL and attacking your buildings and employees anyway. In practice, Russia is more likely to be constrained by its own practical limitations and the international consequences of doing so than by the IHL consequences; it has a pretty poor record of respecting civilian protected status so far in its war in Ukraine.

But that all said, it’s a great excuse for a discussion on what it actually means to be a direct participant in hostilities, and why it’s very unlikely that you’ll become one by accident through your ordinary work at a US technology or cybersecurity vendor, even if you are helping Ukraine.

While we’re at it, we can also have a little discussion about why even if someone in the US tips over that line, it’s not going to drag the US (or any other country) into a direct hot war with Russia too.

Direct participation in hostilities

First of all, what is “direct participation in hostilities” all about? It’s a term that is derived from the principle of distinction—a central notion under International Humanitarian Law (IHL). As the ICRC explains:

In international humanitarian law the concept of “direct participation in hostilities” refers to conduct which, if carried out by a civilian, suspends his protection against the dangers arising from military operations. Most notably, for the duration of his direct participation in hostilities, a civilian may be directly attacked as if he were a combatant.

The principle of distinction requires that military forces at war only directly target the armed forces of the opposing side. Direct attacks on civilian people or objects are prohibited. But this is not a blanket rule; there are exceptions. If a civilian becomes a direct participant in the hostilities, they may be freely targeted as if they belonged to the military and the opposing side may purposely directly target and kill them as part of the war.

Parsing out when those protections are suspended is not always clear cut—IHL evolves over time out of a variety of principles, texts, prior cases, and formal and informal agreements between states—but the ICRC has you covered with the basics: To qualify as being a direct participant in hostilities, the individual must generally be engaged in specific acts that meet all three of the following criteria:

1. The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm);

2. There must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation); and

3. The act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).

In other words, civilians, whether Ukrainian or foreign, are at risk of losing their IHL civilian protected status and could be directly targeted as if they were the Ukrainian military if they do something that meets all of these three criteria. For most cybersecurity firms working in Ukraine, all three will not be met, and meeting all three by accident is vanishingly unlikely.

The “threshold of harm” test

It’s tempting when looking at the three tests to come up with scenarios where a cybersecurity firm might trip over the line and qualify. For example, a cybersecurity company catches Russian malware deployed by the Russian military, and then patches it in order to stop them. This self-evidently harms Russian military capability by stopping the hack; it does so directly; and you’re doing this to help Ukraine. So does that make you a direct participant in the hostilities?

No.

The key thing about the “degrading military capacity” test here is the “threshold of harm” test. Importantly it’s not any harm, it’s harm meeting or exceeding that threshold.

So what is the threshold? Let’s take a look:

For a specific act to qualify as direct participation in hostilities, the harm likely to result from it must attain a certain threshold. This threshold can be reached either by causing harm of a specifically military nature or by inflicting death, injury, or destruction on persons or objects protected against direct attack

Note the two key phrases here. To reach the threshold of harm, your company would need to be doing something that either:

• Causes harm of a specifically military nature

• Inflicts death, injury or destruction on persons or objects

Most cybersecurity firms will not be particularly close to this threshold on either count. Virtually all ordinary defensive cybersecurity work will not get close. Providing network security equipment or end-point security software for Ukrainian networks—even military networks—doesn’t get you there.

This might be obvious, but I’ll call it out anyway: failing to assist Russia doesn’t count as a harm either. As the ICRC notes:

It the same time, the conduct of a civilian cannot be interpreted as adversely affecting the military operations or military capacity of a party to the conflict simply because it fails to positively affect them. Thus, the refusal of a civilian to collaborate with a party to the conflict as an informant, scout or lookout would not reach the required threshold of harm regardless of the motivations underlying the refusal.

In other words, rejecting Russian clients in favor of Ukrainian ones does not come close to meeting this threshold. If your company could materially help Russia, but chooses not to, you are not causing a harm within this “threshold of harms” definition. It’s not a requirement that civilians be neutral in the conflict, and having Ukrainian customers but not Russian ones doesn’t jeopardize your IHL civilian status.

So if most cybersecurity company actions don’t get close to meeting this threshold, what circumstances could? Here’s a few:

• Wiretapping (passively, or through hacking) Russian military communications

• Transmitting targeting coordinates to the Ukrainian military for use in strikes

• Certain forms of CNE against Russian networks if they are of a “military nature”, for example, by directly degrading military logistics, command and control, or causing kinetic effects that are designed to inflict death, injury, or destruction on persons or objects.

Be careful here: even most computer network exploitation (CNE) does not automatically meet this threshold:

Acts that neither cause harm of a military nature nor inflict death, injury, or destruction on protected persons or objects cannot be equated with the use of means or methods of “warfare” or, respectively, of “injuring the enemy”, as would be required for a qualification as hostilities. For example, […] the manipulation of computer networks, […] may have a serious impact on public security, health, and commerce, and may even be prohibited under IHL. However, they would not, in the absence of adverse military effects, cause the kind and degree of harm required to qualify as direct participation in hostilities.

For most tech companies and cybersecurity firms, the question of whether they meet this threshold isn’t a close call: they’re not.

Organizations and individuals that are closer to the line would be those closely involved in analyzing the on-the-ground military operations, such as satellite imagery firms and some OSINT providers that track the physical war closely, or when engaging in CNA or CNE type activities. As an example that probably did cross this line, the Belarusian hacking group “Cyber Partisans” probably exceeded this harms threshold when targeting Russian and Belarussian military rail logistics earlier in the year.

But for those organizations and individuals that get close to the line, meeting this threshold isn’t sufficient; this is only one of three tests. Instead, they’ll be looking to rely on the direct causation test.

The “direct causation” test

This test is relatively straightforward: there must be a direct causal link between the act and the harm in order to justify losing IHL civilian protected status, and moreover that harm must have been likely given the act.

This directness test is quite strict. Examples that don’t meet the directness test include the design, shipment, production, or repair of military equipment. Nor does financial support to Ukraine, or even financial or equipment support given directly to the Ukrainian military suffice.

Notice that this is an additional test to the earlier “harm” test. And it’s important to see how high the bar is to meet them. For example, American civilians working on, say, the design, construction, and logistics for delivering HIMARS to Ukraine easily meet the harm standard in the previous definition, but their support is too indirect to meet the directness standard; even those civilian defense contractors do not qualify as direct participants in the conflict.

So how direct do you have to be to meet this directness standard? The ICRC provides two concrete examples: a truck driver delivering ammunition supplies to the front-lines, or a voluntary human shield would both quality.

For most tech and cybersecurity companies—and most defense companies for that matter—in the West, this directness test isn’t a close call either. Plausibly a US company that themselves hacks Russian military communications; or which itself engages in CNE against Russian military networks or CNA; or which itself derives and transmits targeting coordinates directly to the Ukrainian military would qualify. But those that merely provide the capability to do it, but sell it to Ukraine for them to use themselves probably don’t.

If you’re doing any of that and you haven’t already found yourself a lawyer, then first of all yikes, and second of all go and do that immediately.

But most cybersecurity companies are not close to meeting this standard, and are certainly much further away from meeting it than, say, the US Department of Defense and its many large defense contractors who are providing high volumes of material support to Ukraine across the spectrum, and who have still avoided crossing this line.

Belligerent Nexus Standard

This final standard is used to recognize that it’s possible to meet the harm and directness standards, but nevertheless still be clearly distinguishable from a combatant in the war. This is what the belligerent nexus standard is for. This standard requires that the action has to be directly connected to the war itself—it must have a nexus to one of the principal belligerents.

A good example of this is self-defense. A civilian who defends themselves—even lethally—against rape, looting, or attempted murder by occupation forces does not become a combatant of the other side; it does not remove that civilian’s IHL protected status in the war, even if the act otherwise meets the directness and harm thresholds discussed earlier.

Another example is that a civilian does not lose their ordinary IHL civilian status by being involved in ordinary criminality, such as a shoot-out with police. This may cause direct harms against the occupation force, but if this is occurring tangential to the conflict, then it falls to domestic criminal law (or more likely, occupation martial law) to resolve the issue; the civilian does not automatically lose their IHL protected civilian status because of it.

For the purposes of technology, cybersecurity (and other defense) companies outside of Ukraine, this standard is probably the least interesting. Their support to Ukraine will fail to meet the direct participant standard on the other two metrics long before we reach this one. But it is included for completeness.

What about handling Ukrainian military data?

Where life gets a bit more complicated is—as Zetter rightly calls out in her article—when companies store and process Ukrainian military data on their behalf. For example, if the Ukrainian military upload military registration forms into Microsoft Azure or Amazon AWS to keep it safe from physical attacks in Ukraine. For example, as Zetter notes in her piece:

Likewise, if any Ukrainian data transferred to Microsoft and Amazon cloud servers during the current war includes Ukrainian military data, that infrastructure and the data stored on it could be considered a legitimate military target and draw attack from Russia. And if cloud providers are hosting the data of other customers on the same infrastructure, they could be affected by such an attack too.

Let’s take a look at this question, and also the separate risk that Zetter doesn’t call out but we should interrogate anyway—whether handling Ukrainian military data might come with personal risks beyond the infrastructure itself to the foreign contractors handling it.

The question of what this means for the tech company is a bit complicated, because we need to distinguish what it means for the US employees, the US datacenter, and the Ukrainian military data. They are all different entities here.

Of these, the status of the data itself is relatively simple: Russia targeting it for destruction is basically fair game; it is a military object, even if it is a virtual one.

For the US employees of AWS or Azure, the question of whether they become a direct participant in the hostilities by helping Ukraine to store the data requires us to go back to the three principles described earlier. At a bare minimum, their involvement would fail the directness test, if not the other two as well. The storage or processing of Ukrainian military data does not, by itself, make them a direct participant in hostilities.

But just because the datacenter engineers retain their IHL civilian status doesn’t necessarily mean handling this data is completely safe. After all, if the data is a military object, can Russia attack the US datacenter that houses it?

In theory, maybe. In practice, no.

Here, LOAC requires Russia perform three tests: necessity, proportionality and distinction to determine if it’s lawful to attack the datacenter. The last of these is our principle of distinction, but Russia’s real problem here would come from the proportionality test. Getting into these in detail is too much for this article, so I’ll leave it for now, other than to say I think it would be a high—but not impossible—bar to meet, and would be highly fact-dependent. If it did meet them, then yes, in principle, it could lawfully attack the datacenter, even if doing so caused civilian collateral harms.

But while that might be the theoretical answer, in real life Russia is not going to launch missiles against the United States. And it’s certainly not going to do it just to destroy an Amazon or Microsoft datacenter. So the civilians working in the datacenter can all heave a big sigh of relief on that front. Not only will they not lose their civilian protected status, but also they’re also very unlikely to end up as civilian collateral for doing their jobs safe inside the United States or Europe either.

Cyberattacks are a more serious concern. Russia would be technically obliged to do a LOAC analysis on these too, although I doubt they would in practice. But supposing they would, targeting the Ukrainian military’s user accounts on AWS in order to delete the data would likely be permissible. It’d be an obvious thing to target, and I can think of no particularly strong reasons why it would be illegitimate as a target for the Russian military—even if I hope they would fail at it.

Targeting Amazon more broadly with, say, wipers to disrupt Amazon’s users beyond the Ukrainian military’s own data, gets a lot more messy. That once again gets into a long and fact-dependent argument over proportionality, given the volume of civilian co-located data that’s there. That conversation is too long to have here, other than to say I think that would be a very high barrier to meet and would be very fact-dependent.

But the important thing in all of this is that while interacting with Ukrainian military data has all sorts of ways that it might make your networks and computers outside of Ukraine a valid target for cyberattacks, it would not, by itself, make the civilian employees of the company direct participants in the hostilities.

That’s a really good thing. Because otherwise it’d get really messy for the US.

If a US company or individual becomes a direct participant, could it drag the United States into war?

In theory, maybe, in practice no.

Companies that are playing very close to the line do need to be careful not to step into the armed conflict themselves for a whole bunch of self-interested reasons. If you’re providing direct support to Ukraine in the forms of arms or logistics (whether physical or software-based), or CNE/CNA against Russia and don’t already have a legal team then (a) wtf are you doing and (b) get on that immediately.

But if you become a direct participant in the conflict does that drag your country into war with Russia?

No.

As Zetter mentions over at Zero Day, companies becoming direct participants do cause neutrality problems for the countries in which they reside. Michael Schmitt explains in the article:

“If [the U.S.] allows Microsoft to engage in activities that are assisting the Ukrainians, Microsoft doesn’t violate neutrality, it’s a violation of the United States by permitting its territory to be used in an un-neutral manner,” says Schmitt. “The Russians have a legal right under international law…to prevent that from occurring.”

It’s true. Although to be clear: I don’t think Microsoft is anywhere remotely close to meeting the threshold here.

But as Schmitt rightly calls out in Zetter’s article, the United States’ neutrality in the war is based, in part, on the United States ensuring that its territory is not used to harbor belligerents attacking Russia’s territory. Failure to do so undermines the United States’ neutrality in the conflict.

On this point, however, we need to be a bit careful in two regards. Firstly, the United States’ neutrality is not automatically undermined just because a direct participant in hostilities attacks another country from inside of it. The United States can act to stop the ongoing attacks against Russia from its territory to maintain its neutrality. For example, Russia could alert the United States of the ongoing attacks coming from within the US, and the US could intervene to stop them through its own domestic criminal law powers. Those laws are purposely designed to ensure that the United States retains that capacity.

Only if the United States failed to do so—either because it was unwilling or unable—would Russia be able to credibly make the claim that the United States is no longer neutral in the conflict.

But again, this is not automatic. It would give Russia the option to cite it as a LOAC justification to declare war against the United States. But it certainly does not oblige Russia to declare war on the United States over it.

Direct hot war between Russia and the United States is extraordinarily unlikely. Both have gone to enormous lengths to avoid it. And while it’s true that events in war are complex and fast, and have an annoying habit of making fools out of predictors, at least on this, I think it’s a safe bet: The United States and Russia aren’t going to be “dragged” into war against their will by anyone or anything. And definitely not because a US cybersecurity or tech company just got out over their skis.

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Update: the piece has been updated to be more clear that Zetter did not write that foreign employees handling Ukrainian military data could become direct participants in the conflict; this article explores that possibility separately, not in response to Zetter’s article.

You really don’t have to go far these days to hear a “helpful” tautology about the Russian war in Ukraine: all wars end in diplomacy.

It’s a true, but banal statement by itself. But this statement is usually deployed to imply (or explicitly call for) something stronger: Ukraine—either on its own initiative, or with the United States and Europe twisting its arm—should urgently seek a ceasefire with Russia. Amazingly, this formulation sometimes even argues that the lack of visible diplomatic efforts by Ukraine or the United States to obtain said ceasefire is itself belligerent.

Alas, such views are getting louder, not quieter, and are increasingly escaping the political fringes. You can find it echoed across the entire Western hemisphere; not just from political elements on the American left and the right, but even from senior voices such as General Milley, the Chairman of the US Joint Chiefs of Staff, as well as increasingly across Europe, including from senior politicians and diplomats there.

The problem with this line of reasoning is three-fold:

1. It creates a false dichotomy between diplomacy and war. Put simply, modern war is fought about the terms of the peace, not for its own sake, and not all peace terms are equal or tolerable. Modern war might end with diplomats agreeing the terms, but those terms are a reflection of the battlefield reality, not vice-versa.

2. It gets the basic facts wrong: there’s a great deal of diplomacy occurring day-to-day involving thousands of diplomats from virtually all countries, including Ukraine, Russia, the United States, and Europe, as well as neutral countries—and most of that effort is on securing favorable terms in the eventual peace agreement, and offsetting the respective costs of the war for themselves and their allies in the interim.

3. The conditions for war-termination are nowhere near close; and moreover will not get close soon. A stable peace is almost certainly not achievable in the short-term under any plausible scenarios.

These three observations lead us, ultimately, to two counterintuitive conclusions:

1. Premature calls for negotiations have the counter-intuitive effect of making stable peace in the medium-term slower rather than faster.

2. Serious peace negotiations will be available only once Russia’s medium-term plan is concretely discredited (or is successful). That places a lower-bound on when serious peace negotiations will be available, unless Ukraine and the West credibly shows that (a) Russia’s medium-term build-up will be decisively defeated by Ukraine once deployed, and that (b) the West will not abandon Ukraine through the medium-to-long term. Critically, “credibly show” is much more than merely “say”. It requires concrete medium and long-term actions that are visible and credible in Moscow.

Let’s expand on those each in turn.

The root of the problem in the “diplomacy harder” narrative comes from the belief that war and peace are opposite binaries, which leads to the impression that all forms of peace are equivalent.

Under that mistaken assumption, it’s easy to get confused why Ukraine doesn’t seek a ceasefire immediately. After all, if all wars end in diplomacy, and diplomacy is all about concessions, then surely they might as well do some concessions to get some peace now, rather than keep the war going and do some concessions to get some peace later?

To understand why this is so abjectly wrong, it’s first important to dismantle the simplistic and wrong belief that anyone serious is pro-war. Nobody—at least outside of the criminally insane—wants war for its own sake. Wars are terrible. For everyone. They consume vast resources. They have unfathomable costs in terms of blood; gold; infrastructure; generational traumas; lost investments; partitioned markets; and long-term costs of physical and mental disability and care costs for victims and their families.

Those costs are obviously greatest for Ukraine, and they deserve the most sympathy in this conflict. But it’s important to remember that, while self-inflicted, the costs to Russia are large and real too. And not just them; countries outside of the geographic borders of the conflict have enormous the costs that affect the economic wellbeing of the United States, Europe, China, the Global South, and everyone else in between.

This might come as a controversial statement, but it’s true and important nonetheless—so bear with me. Nobody serious wants war. Not even Putin. Putin isn’t having a war with Ukraine out of some abstract love of war for its own sake. He wants peace too. The thing is that he wants peace on his terms.

Ukraine and its allies fight back too not out of some pro-war sentiment, but because of what those terms mean. Living under constant bombardment is an all-encompassing nightmare, felt viscerally by everyone in Ukraine—from towns and villages near the frontlines in the East, in Kyiv itself, right through to places far in Western Ukraine. Everyone suffers from it. And there isn’t a soldier, or civilian, or general, or politician in the whole of Ukraine or the West who wouldn’t rather it all just went went away.

But living in a country at war is not the only way to experience violence and a life of terror. Yes, in some trivial sense, Ukraine could end the war tomorrow. It could submit an unconditional surrender and be rapidly subordinated by Russia. That would be peace in an extremely trite sense: the air-raid sirens would go quiet. The explosions in the distance would stop. But the terms of that peace would be more terrible than the war, at least to most Ukrainians.

To Westerners who have only ever known peace in stable democratic countries this concept can be admittedly hard to fathom. So, to help, let me give you an extreme example as a reference point. Imagine being teleported into a prison camp in North Korea—not as an American or European prisoner where you know your home country is reliably fighting for your release, but as a North Korean prisoner, abandoned to your fate.

In that camp you would have, in some extremely trivial sense, a “peaceful” life. You would hear no air-raid sirens. No missile strikes would hit your camp. But it would not be a tolerable existence, nor one free of terror and violence. Moreover, you can imagine that the knowledge that nobody is fighting to come and liberate you might make you feel worse about your condition; the “peace” would serve only to defeat any hope you might have of future liberation or freedom from your fate.

The reason this is important is that peace is not a simple binary concept, and modern wars are fought over the terms of the peace that comes afterwards. So yes, it is true in some trivial sense that all wars end in diplomacy. But it’s not a useful or insightful statement in its own right. Everyone wants peace; to argue otherwise is to fight a strawman.

The question is—and has always been—peace on what terms.

The second problem with the “diplomacy harder” narrative is it gets the basic facts wrong: there’s a great deal of diplomacy occurring day-to-day with a view to ending the war as quickly as possible and mitigating its harms in the meantime. This diplomacy involves literally thousands of diplomats from across the globe, including diplomats from Ukraine, Russia, the United States, and Europe.

That diplomacy might not be in the form you expect—but that doesn’t mean diplomats are not working flat-out to secure that eventual peace and mitigate the harms in the meantime.

The diplomacy comes in a variety of forms—from alliance management in NATO and the EU; brokering access to NGOs like the ICRC, UN, and IAEA to dangerous regions; shepherding votes through multilateral organizations like the UN; managing cases in international criminal justice organizations; arms shipments; prisoner exchanges; financial and humanitarian aid; the Grain Deal and access to shipping in the Black Sea; implementing and managing sanctions; refugee flow management; permanent and interim deals to offset energy crises; private articulation of red-lines to avoid non-conventional escalation—you name it. There’s no shortage of diplomacy taking place, and all of it’s about ending the war sooner, and reducing harms in the meantime so that support for Ukraine can continue into the medium-term.

This might not be diplomacy in the form of drafting a peace agreement, but that’s only because the conditions for war-termination are not yet available nor negotiable; not because diplomats are sitting on their hands. When a sustainable peace becomes an option, diplomats will absolutely seize it; if anything, fighting between themselves to be gain credit for helping achieve that eventual historic moment.

The third problem with the “diplomacy harder” narrative is that it makes a dangerous mistake about the basic circumstances under which war termination conditions occur, both in the general case and in this specific war.

The obstacle to a stable peace between Russia and Ukraine lies in their currently-opposite views about their respective prospects over the long-term. Ukraine has had several undeniable recent successes on the battlefield, and sees these as likely to continue into both the medium and long-term.

By contrast, Russia is convinced that its recent losses are temporary; that it will turn the tide over the medium-term; and that it will eventually come to dominate Ukraine over the long-term.

Importantly, it doesn’t matter which one you—or any expert—think is correct. What matters is that both Russia and Ukrainian leadership currently see a viable path to their respective maximalist visions of their own successes: Ukraine believes it can and will liberate its territory back to its internationally-recognized borders; Russia still believes it can and will fully subordinate Ukraine.

Objectively one (or both) of them is wrong. But whichever it is, this question will not be resolved through debate or negotiation by diplomats in a conference room. It will instead have to be resolved in reality. And that means finding out who is right through soldiers fighting on the battlefield.

This point might sound obvious, but countries are generally uninterested in negotiating peace terms when they think they are just on the cusp of a breakthrough success on the battlefield. That’s because they think the breakthrough will permit more favorable terms if the peace is settled later rather than negotiating for terms right now. So if you’re wondering why Ukraine is pushing back on the idea of peace negotiations, and why Russia is not pushing hard for them either yet, this is why.

That’s a problem for anyone expecting an imminent stable peace agreement. Not to put too fine a point on it, but stable peace will not be achievable until one or the other sees its vision of the future crash on the rocks of the battlefield reality.

It is helpful at this point to try and understand why Russia believes it will win in the long-term from their perspective. It’s more than mere denialism or a lack of quality information being transmitted to Russian leadership—although both probably also play a role. Rather, Russia’s sincere belief in its eventual success comes down to two central pillars: First, a belief in its ability to reconstitute its force in the medium-term, and secondly a belief that the West will abandon Ukraine in the medium-to-long term.

On the first of these, Russia’s force reconstitution efforts are via a range of measures, including (at least) the mobilization of its own population; rebuilding its long-range precision munition capacity through Iranian and domestic drone production and repurposing cruise missiles from its own enormous strategic nuclear force; recovery, acquisition, and repurchase of ammunition and equipment from long-term storage and from and countries like North Korea; the subordination of the Belarusian armed forces under Russian military command to threaten or actually invade Ukraine; the potential mobilization of Belarus too; through co-opting prisoner and conscript soldiers into long-term military service; and from large-scale industrial mobilization to build additional munitions.

These efforts may or may not be successful. But be careful: what matters for the prospects of Russian ceasefire negotiations here is not what you or some group of western military experts believe to be the case. What matters is that Russian leadership sincerely believes it. At least at the moment.

The second pillar of Russian strategy relies on the sincere belief that Ukraine’s allies will abandon it out of a combination of apathy, domestic cost-aversion, and eventual dwindling or ending of military support to Ukraine. Russia believes that it can manage domestic unease and economic costs far longer than the West can, and that Western support will eventually dissipate. Moreover, they believe that their own diplomatic and propaganda efforts will accelerate this process in the West. In Russia’s view, as Western support dwindles, Ukraine’s military successes will begin to unwind, and they will then be able to overpower Ukraine.

Again, it doesn’t matter if you believe this will happen. It matters that they believe it.

Once you see that these are the two key pillars of the current Russian strategy, it enables you to spot two conclusions; both perhaps a little unintuitive.

The first conclusion is that neither Russia nor Ukraine is interested in negotiating a long-term stable peace at the moment. But Russia is interested in a short-term one. Their plans are based in the medium and long-term, and a short-term ceasefire would aid them substantially in the period before those medium-term plans deliver. It would stem their battlefield losses while their force-reconstitution efforts continue, and allow them to resume the conflict later under more favorable conditions to them. This gives them enormous incentives to pretend to be interested in a long-term peace agreement, while ensuring that if any such peace-agreement does occur, that it is easily sabotaged so they can continue the war when they are ready.

For the same reason, Russia is also incentivized to play the victim of “Ukrainian and US belligerence”; promoting propaganda in public and private that a peace-deal would be available, if only Ukrainians and the United States would allow it. If the West were to fall for this propaganda and twist Ukraine’s arm into a peace deal, Russia would absolutely sign one. But it would be temporary—a few weeks or months at best—and come at a cost to Ukraine by denying them the ability to press their current advantage. Instead, Ukraine would be forced to resume the conflict later when Russia breaks the ceasefire, but on Russian terms with a reconstituted force, not on their own terms against a depleted force now.

The second conclusion is equally counterintuitive: that premature calls for negotiation reinforces the belief in Moscow that Western support is already atrophying, and that Ukraine’s allies are already scrambling for an exit. That has the (ironic) effect of helping Putin make the case internally that with a bit more patience, Russia will be able to resume the fight at full force, enabling them to reverse recent Ukrainian gains, and push onwards to a full subjugation of Ukraine in the long-term.

In other words, premature calls for negotiation make Russia more confident in their strategy to defeat Ukraine, which in turn makes a stable peace agreement less likely, not more.

Unfortunately, the Russian war in Ukraine will not end until the Russian plan meets reality—either through success in subjugating Ukraine, or through failure on the battlefield. If it fails, Russia will then have two options: to change strategy, or to get serious about a long-term peace-agreement with its neighbor.

What that means in practice is that Ukraine’s allies looking for a long-term stable peace between Ukraine and Russia need to target those two pillars of the Russian strategy head-on, in order to speed-up the realization in Moscow that it won’t work. In other words, the West needs to support Ukraine at a level that will defeat Russia’s ability to overwhelm it through force-reconstitution, and to provide visible and credible commitments that the West is willing to support Ukraine through the long-term too.

It’s tempting to think that’s basically “more of the same” of what we’re already doing.

It’s not.

The Western strategy needs to demonstrate long-term commitments, as opposed to its current strategy of providing necessary—but also ad-hoc and short-term—tranches of equipment and materiel support every few months. It means not just providing more equipment and ammunition, but also visibly and loudly increasing the capacity to produce equipment over the long-term too.

To put that another way, the West needs to perform credible commitments about it support in the long-term of this war. That is, thinking not just about support in early 2023, but about what support in 2024 and 2025 look like too, and pre-committing for it.

It also means spending less time—particularly in Germany and elsewhere in Europe—projecting the hope that the war will end soon and all the ways life will get back to normal once it does, and instead spend more time on long-term commitment planning for Ukraine. As a specific concrete example of this, the EU can and should set up a permanent group to plan out and begin the long-term process for Ukraine’s eventual EU-integration, thereby demonstrating a long-term commitment by the EU to Ukraine’s future; and a future outside of Russian subordination.

In America, it also means thinking through the hard questions about what happens when Ukraine gets close to its internationally-recognized borders, where cutting off Russian supply lines will require Ukraine to begin systematically and regularly attacking positions inside Russia proper to secure them, as well as industrial planning to ensure that supplies including ammunition do not run low in the medium and long-term. In other words, demonstrating—and not just saying—that the US is thinking about the long-term future of this conflict, and demonstrating that Russia’s two strategies will fail.

Ironically, the more the West provides credible commitments to Ukraine’s military success, the less likely it is that those commitments will turn out to be necessary. That’s because loudly signaling that Western support will be there for the long-term, will make it harder for Moscow to stick with its current strategy.

If the West can credibly demonstrate that this strategy will fail, Moscow will have to pivot to a new strategy, or come to the negotiating table. But if it does not—or if the West once again fools itself into thinking that forceful words are the same as credible commitments—then Moscow will not believe them, and instead test its strategy on the battlefield—a substantial and avoidable cost to Ukraine and its Western supporters compared with showing the strategy as likely to fail through visible commitments.

Either way, only once that strategy fails will Russia be forced to come up with a new approach or to come back to the negotiating table to look for a stable peace agreement. Once it does, Ukrainian diplomats, with the assistance of diplomats across the world, will have an opportunity to negotiate for a long-term peace agreement with Russia and achieve a peace that lasts.

But until then, the tautology that “all wars end with diplomacy” isn’t helping anyone get there.

At one point, Ihor was captured and tortured by Russian occupation forces for 11 days. Russia eventually released Ihor, but tried to use him to capture other partisans in the area. To do this, they instructed him to provide screenshots of all of his further interactions with Smoke, under threat of death if he didn’t comply. Thanks to some ingenuity and prior planning, Ihor was able to secretly tip-off Smoke to defeat this Russian plan, and survived to tell the tale after Kherson was later liberated by Ukrainian forces.

Ihor’s story—and the stories of others like him—is one of extraordinary bravery in extremely dangerous conditions. But his interview with the Washington Post reveals something more: it reveals that Russia was actively surveilling Telegram chats as part of their counterinsurgency operations in occupied Ukraine.

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Telegram’s security has long been called into question by the information security community. There’s lots of aspects of how it is built that don’t make sense from a security perspective. But so far, there’s never been any good evidence that it’s been exploited by the Russian security services in practice.

Until now.

Ihor’s story is particularly amazing because it doesn’t just reveal that Russian forces are surveilling Telegram chats. It also gives us a good hint as to how.

It even tells us what Russia wasn’t doing—at least in the narrow case of Ihor. And it reveals how at least one other major and well-known security defect in Telegram—ones that have been left open on purpose by Telegram—would very likely have led to Ihor’s death if Russian occupation forces had been only slightly more competent and successfully exploited them.

There’s no evidence here that Telegram knew or helped Russia exploit any of these defects. But that doesn’t let Telegram off the hook either. The two defects that Russia didn’t exploit—but which would have led to Ihor’s death had the Russian forces chosen to use them—are both well known to Telegram; they’ve been described before, and Telegram has inexplicably and intentionally chosen not to fix them.

All three of these defects exist in Telegram only because of its steadfast refusal to adopt or correct their application’s security—a big contrast to virtually every other mainstream encrypted chat app.

If you take away just one thing from this post, let it be this: Telegram is not safe to use as a chat or call app. It nearly cost Ihor his life. Ukrainians—and frankly everyone else too—should find another encrypted application for chats and calls. A good choice would be something like WhatsApp, but Apple’s iMessage or Signal are also good choices if your contacts are also using those.

So without further ado, here’s the story of Telegram, its dangerous lack of security, and how the Russians were exploiting it in occupied Kherson.

Telegram: a quick history and primer

Telegram is a major social networking and communications app that is extremely popular in Eastern Europe, including in both Russia and Ukraine. Before the war, more than 80% of all smartphones in Ukraine had it installed, and it has over 550 million monthly active users worldwide.

Telegram’s founder is the Russian-born billionaire Pavel Durov, who made his name founding Vkontakte—essentially a Russian Facebook. He founded Telegram in Russia in 2013, just a year before being forced out from Vkontakte by people he described as “Putin’s cronies”. According to him, that departure was caused by his refusal to hand over Vkontakte’s data about Ukrainian protestors during the 2014 Euromaidan. Durov later left Russia and now lives in Dubai and holds UAE citizenship, where Telegram is now based.

Telegram has had run-ins with the Russian government on several occasions. In 2018, Telegram was blocked in Russia for two years. When Roskomnadzor—the Russian media regulator—announced that Telegram would be unblocked in Russia, it referenced an agreement with Telegram’s founder to cooperate with Russian authorities, although did not provide specifics:

We positively assess the readiness of the Telegram founder to counter terrorism and extremism. With the consent of the Russian Prosecutor General's Office, Roskomnadzor is withdrawing the requirement that access to the Telegram messenger service be blocked.

This year Telegram had another close call with the regulator. On October 29, Telegram’s website interface was briefly blocked again, though the ban was lifted shortly afterwards.

Telegram’s popularity comes from its duality as both a chat and an information broadcast medium. In its “broadcast” mode, where it operates conceptually a little like Twitter, users subscribe to “channels” to receive messages blasted out by the channel owner. The range of channels is large. You can subscribe to Russian, Ukrainian, or other official channels, as well as news sites, military groups, open-source intelligence aggregators, influencers, companies, and so on. This feature has been a lifeline for Ukrainians both in Ukraine and abroad by helping citizens keep up with the rapidly moving events and alerts throughout the conflict.

Telegram is also a chat application. In this mode, Telegram operates like WhatsApp, Signal, or iMessage, allowing users to create message groups, or one-to-one chats with an individual contact, who can then exchange chats, files, pictures, or hold audio and video calls.

By default, Telegram’s chats are not end-to-end encrypted, meaning that Telegram’s engineers can access their content via Telegram’s servers.

One-to-one chats (and calls) can also be “upgraded” to use Telegram’s custom-built end-to-end encryption by choosing to communicate via “secret chats”. This encryption has been criticized by specialists because Telegram’s algorithm can’t be easily proven secure in the way that the encryption in most comparable chat apps can. That’s a saga that’s too long to go into here, other than to say that Telegram’s response to those concerns never satisfied the information security community or encryption specialists, and it continues to cause concern.

But despite these concerns about Telegram’s security and its regular run-ins with the Russian security services, Telegram remains widely used in Ukraine, in large part because it is easy to dismiss the security concerns as theoretical, because of the importance of its broadcast functionality as an invaluable news source, and because of Telegram’s assertions that its security hasn’t been broken in practice.

Ihor meets Smoke in central Kyiv. Photo credit: Ed Ram for The Washington Post

The surveillance of Ihor

To understand how the Russian forces were breaking Telegram in occupied Kherson, we need to look at two key paragraphs in the Washington Post’s story:

For months, [Ihor and Smoke] kept up a coded communication over the Telegram messaging app. Sometimes Ihor would be asked to help pinpoint locations from which the Russians were firing artillery. Other times, he sent the man, who asked to be called Smoke, the positions of Russian troops, armored vehicles and ammunition stocks.

…

Because Ihor was still in communication with Smoke, who was based outside in nearby Ukrainian-controlled Mykolaiv, the Russians released him and said they would be monitoring any text exchanges between the two. They asked for Ihor to send screenshots of their conversation any time there was an update — and threatened his life if he did not cooperate.

There’s three claims in here that tell us about the surveillance of Ihor:

1. Ihor and Smoke were communicating via Telegram

2. Ihor had to send screenshots of their conversation any time there was an update

3. Russia was able to monitor all text exchanges between Ihor and Smoke

The first of these two statements tells us that Ihor and Smoke were communicating via Telegram. The second tells us how. In Telegram, secret chats don’t just employ Telegram’s end-to-end encryption technology, they also instruct the phone’s operating system to stop the user taking screenshots of the private chat screen.

That means either Ihor and Smoke were communicating via ordinary Telegram chats, or alternatively, someone disabled the anti-screenshot technology inside Telegram so that Ihor could take screenshots of their “secret chat” conversations.

There’s good reasons to think Ihor and Smoke were using normal chats, and not secret chats. Disabling the phone’s anti-screenshot technology in secret chats is somewhat involved. It would require that the Russian occupation forces jailbreak Ihor’s phone and install malware to circumvent the anti-screenshot technology in the phone’s operating system.

That’s possible, but it’s also unlikely. It would have been obvious to Ihor, and he didn’t mention this fact when talking to the Washington Post when discussing his communications with Smoke.

Moreover, had Russian forces installed malware on Ihor’s phone, it wouldn’t have been necessary to ask Ihor to take screenshots and relay them; they could have instead used the malware to take screenshots directly and relay them quietly back to the Russian occupation forces. That would have allowed the Russian forces to give Ihor his phone back without alerting him to the fact that his conversations with Smoke were now under surveillance.

That means the most likely case is that Russian forces did not proactively install malware on Ihor’s phone, did not circumvent the anti-screenshot technology in Telegram, and instead what happened here is just that Ihor and Smoke’s communication was via normal (and not “secret”) one-to-one Telegram chats.

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What type of surveillance did Russia employ?

We can learn something else from those three statements in the Washington Post article. Let’s recap:

1. Ihor and Smoke were communicating via Telegram

2. Ihor had to send screenshots of their conversation any time there was an update

3. Russia was able to monitor all text exchanges between Ihor and Smoke

The last two of the statements by the Russian forces appear, at least at first glance, to be in contradiction with each other: how can it be that Russian soldiers were monitoring all text exchanges between Ihor and Smoke, and yet still needed Ihor to send screenshots of the conversations?

There’s three possibilities that resolve this apparent contradiction.

Possibility 1: Russia was lying when it said it was monitoring their text exchanges

In this theory, the Russian forces’ claim “we are monitoring all text exchanges” was a bluff; the Russian soldiers had no means to monitor the text exchanges between Ihor and Smoke, but told him this anyway in the hope that Ihor would be so afraid for his life that he would willingly send screenshots of his messages without deception or omissions.

But this theory is unlikely: it would be a personal risk for the Russian soldiers and officers involved if Ihor detected the bluff.

To understand why, remember that Ihor was detained as a Ukrainian saboteur operating in occupied Kherson. These saboteurs were directly undermining the occupation, as well as assassinating senior regime and military officials, and spotting targets for the Ukrainian military to destroy. All of this was happening in the most important theatre of the Russian war in Ukraine at the time—one that Putin himself was personally invested in.

Releasing Ihor back into occupied Kherson knowing that he was in contact with Ukrainian special forces, and simply hoping that Ihor would comply with their demands without deception or omissions would be a huge risk for the Russian soldiers. Had Ihor detected the bluff, he would have been able to communicate freely with Smoke without surveillance and feed the Russian forces deceptive information.

Possibility 2: Russia was monitoring the content of their text exchanges but asked Ihor to send screenshots anyway

Here, the theory is that Russia was monitoring all text exchanges including message content, but required Ihor to (redundantly) send screenshots of their conversations anyway.

This theory isn’t quite as absurd as it sounds. Doing so would serve two purposes. First, it would act as a “source validation” technique, allowing Russia to quickly work out if Ihor was acting deceptively towards them. Secondly it would hide Russia’s signals intelligence capability by hiding this fact from Ihor, us, and quite likely even the Russian soldiers on the ground from figuring out Russia’s ability to read Telegram messages without needing screenshots.

Telegram’s flaws mean we can’t rule this theory out decisively. But there’s two reasons why it’s unlikely at least in this case.

The first of these is straightforward. Operationally, it’s preferable for targets of surveillance to be unaware of it. If Russia did have full content of Ihor and Smoke’s messages without needing Ihor’s help, it would make more sense for them to keep Ihor in the dark about this fact by not asking him for screenshots and hoping he didn’t suspect his chats were being surveilled.

The second reason is hidden elsewhere in the article:

Ihor didn’t even know the first name of the person who contacted him. The man said he was a member of Ukraine’s Special Operations Forces and wanted to know if Ihor was interested in helping fight the Russians occupying his city of Kherson.

…

But Smoke and Ihor had agreed on a subtle code that could act as a warning — for example, responding to a message with “ok” instead of “all right.”

This tells us two important facts. First, all of Ihor and Smoke’s communications were online—and almost certainly entirely via Telegram. The two met when Kherson was already occupied, and they were on opposite sides of the frontlines. In other words, they didn’t meet in person until Kherson was later liberated.

Secondly it tells us that Ihor and Smoke agreed on a covert “tip-off” code early in their interactions. That covert code was later used by Ihor to alert Smoke that their communications were under surveillance after Ihor’s arrest.

If Russian forces had the full content of Ihor and Smoke’s messages, they would have seen Ihor and Smoke’s early discussions about their tip-off code, and would have seen Ihor later using it. Had they done so, they would have known immediately of Ihor’s deception, and likely executed him for it. That means—at least in this case—they almost certainly didn’t have access to those earlier messages.

So how can it be that Russia didn’t have access to Ihor and Smoke’s message content, but also had their communications under surveillance?

The answer—as is often the case in signals intelligence—is metadata.

Possibility 3: Russia was monitoring communications metadata of Ihor and Smoke’s communications.

A better theory is that Russia was monitoring the fact of text communications between Ihor and Smoke, but not the message content directly. In other words, they were accessing chat metadata.

What that means is that when Smoke sent a message to Ihor, Russia would know that the message was sent, but not what the message said. They needed Ihor to forward them screenshots to obtain the message content.

This theory fits the facts of this case relatively well. But it’s one thing to know that Russia is intercepting communications metadata. It’s a whole other thing to know how.

Unsurprisingly, the article doesn’t answer this directly for us. Ihor wouldn’t know, and in all likelihood, the soldiers interrogating Ihor wouldn’t either. That information would likely be closely held by specialist intelligence officers working further away from the frontlines.

But thanks to Ihor’s starting point, we can spot a defect in Telegram that matches this theory exactly.

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The detention facility where Ihor was held by Russian occupation forces. Photo credit: Ed Ram for The Washington Post

Tracking Telegram chats with metadata

To understand how this flaw works, we need a little bit of background into Telegram’s “MTProto” encryption algorithm.

Telegram’s MTProto is used for both normal chats as well as secret ones. The only difference is which encryption keys are used. Secret chats use keys held by the person’s device. Normal chats use keys held by Telegram’s servers.

Telegram’s MTProto takes a chat message, encrypts it into an encrypted box, and labels it with a bit of metadata which isn’t encrypted. A diagram of how that works is shown below—it’s taken from Telegram’s own description of their protocol. But despite looking complicated, it’s not as difficult to understand as it looks.

Here, the original message is up in the bracket at the top right. MTProto’s algorithm processes this message into an encrypted form, shown in the bottom right in blue. MTProto then adds two additional pieces of metadata, shown in the bottom left in gray.

One of these pieces of metadata is called auth_key_id. The other is called msg_key.

I’ve labelled “auth_key_id” in red—this is our culprit.

Here’s how the spec describes auth_key_id:

[The auth key ID is] a 64-bit key identifier (that uniquely identifies an authorization key for the server as well as the user)

…

The first thing a client application must do is create an authorization key which is normally generated when it is first run and almost never changes.

Let’s unpack what that means.

When Telegram runs for the first time, it creates a secret key called the “authentication key”. For now, it doesn’t matter what it does. What matters is that this key has an associated unique number—essentially a “name”—called “auth_key_id”.

This key and its associated auth_key_id are created when the app first installs and stays the same until you delete or reinstall the Telegram app. All chats, whether secret or normal, are sent using MTProto messages, and all of them send this auth_key_id along with the encrypted message. The message itself might be encrypted, but auth_key_id is not. Anyone monitoring the network communication can see it.

From the perspective of someone monitoring Internet traffic—something the Russian government is well known to do—this auth_key_id functionally operates as a unique user ID. In the language of signals-intelligence, it can be used as a “SIGINT selector”.

Let me explain what that means, from the perspective of the Russian government occupation forces.

Suppose you’re the Russian government, and are performing large-scale interception of Internet traffic from all users in an occupied region. As part of that operation, you watch for all Telegram messages. Any time you see one, you store it into a big database. These messages might be encrypted, but the auth_key_id part of each of these messages is not. The Russian government doesn’t need to do anything special to view them.

At some point during the occupation, Russian forces arrest Ihor, and spot that Telegram messages to his device use a specific auth_key_id. It’ll be some number like, say, 718.

After letting Ihor go, you spot another Telegram message traversing the Internet in the region that also uses the same auth_key_id value of 718. That means Ihor is receiving a message. If Ihor fails to send a screenshot shortly afterwards, you know he’s hiding messages from you, and is defying the orders to regularly send screenshots of all of his communications.

It’s important to note that this issue is a feature of MTProto itself. It affects Telegram’s secret chats as well as normal chats. Leaking it gave the Russian occupation forces specific information to keep track of Ihor after his release.

Other end-to-end encrypted messaging apps like Signal, WhatsApp, and iMessage, are more careful, and try to avoid sending specific communications metadata like this directly across the Internet with every message. Ihor’s surveillance was uniquely enabled by his use of Telegram.

Photo: Tank traps line the streets of Kyiv near the beginning of the invasion

Russian forces weren’t decrypting Ihor’s messages.
But they could have.

Perhaps the most surprising thing about Ihor’s interview is that it also reveals what the Russian occupation forces in the region weren’t doing. Specifically, they almost certainly weren’t accessing the content of his messages directly, instead relying on Ihor to send them screenshots.

That’s something of an amazing conclusion, because it turns out that Telegram’s flaws mean Russia could have done so. In fact they could have done so in multiple distinct ways. But the Russian occupation forces neglected to do so—at least in Ihor’s case.

Ihor is extremely lucky they didn’t, because he probably would not have survived otherwise.

The reason we can make that conclusion is because of Ihor’s tip-off to Smoke. Ihor met Smoke via Telegram and pre-agreed how Ihor would covertly alert Smoke if their communications fell under surveillance. Ihor later used that method to tip-off Smoke after his arrest by Russian forces.

If Russia had successfully decrypted and read all of Ihor and Smoke’s messages, it would have been possible for them to read this earlier agreement, and spotted Ihor’s deception.

Russia’s failure to read Ihor and Smoke’s historic Telegram chats is a testament to Russian incompetence, not to Telegram’s security. There’s two different ways that Russia could have exploited to obtain all of these messages.

Both of those ways are known to Telegram.

Both have been intentionally left open.

Photo: a train leaves for Kherson, shortly after its liberation by Ukrainian forces

Getting full content via Telegram’s servers

Telegram’s chats are not end-to-end encrypted by default. Users must “opt-in” to using secret chats to get this benefit. That’s different to comparable chat applications like Signal, WhatsApp, and iMessage-to-iMessage chats. In those applications, messages are always end-to-end encrypted. It just happens quietly in the background regardless of your settings.

When chats are not end-to-end encrypted, it means that the content of the messages are visible to the servers in the middle—in this case Telegram’s servers. We know that Ihor’s chats with Smoke were not secret chats because the Russian occupation forces demanded screenshots of his messages, and he was able to comply. But that also means that Ihor’s messages with Smoke were not end-to-end encrypted. Their communications could have been intercepted directly via Telegram’s servers.

Russian occupation forces could have got access to those messages in several different ways. They could have done it with Telegram’s assistance: a secret agreement to turn over some or all messages in exchange for money, or influence, to avoid a threat, or out of a sense of patriotism. But they could also do it secretly without Telegram’s knowledge by hacking Telegram’s servers and taking it directly. Or by planting insiders at Telegram to steal those messages without asking.

That didn’t happen in Ihor’s case. But that’s not to say that the Russian government doesn’t in other cases. It also doesn’t mean Telegram doesn’t have agreements with different Russian security service agencies that these particular Russian occupiers just didn’t know about and didn’t use.

For other encrypted chat applications, it’s easy to rule out such agreements, hacking, and insider threats. But because of Telegram’s inexplicable decision to make chats not encrypted by default, we can’t rule that out here.

Counterintuitively, giving users the option to opt-in to end-to-end encryption is really bad for user security even when—or perhaps especially—when they need it most. This is perhaps one of the greatest example of why. It’s hard to dream up an example of a chat that is more sensitive than an actual insurgency operation behind enemy lines. Ihor’s life literally depended on the security of his chats.

It was an error by both Ihor and Smoke to use normal chats and not secret ones. But it’s an error that was only possible thanks to Telegram. Had Ihor and Smoke chosen virtually any other encrypted chat application, the opportunity for that error would never have existed in the first place; their chat would have just been end-to-end encrypted without asking.

Getting full content via device access

Ihor and Smoke screwed up by using normal chats and not secret chats. But if Russia was slightly competent, using secret chats wouldn’t have saved Ihor anyway: Telegram’s end-to-end encryption isn’t enough.

To understand why, let’s look at this very revealing paragraph in the MTProto specification:

The protocol's principal drawback is that an intruder passively intercepting messages and then somehow appropriating the authorization key (for example, by stealing a device) will be able to decrypt all the intercepted messages post factum. This probably is not too much of a problem (by stealing a device, one could also gain access to all the information cached on the device without decrypting anything)

This paragraph is talking about why MTProto’s cryptography doesn’t have two properties known in cryptography as forward secrecy and perfect forward secrecy. Telegram is explaining why it doesn’t matter that their protocol doesn’t use them.

[Update] Curiously this paragraph is at odds with other statements elsewhere in the official documentation. According to Telegram, MTProto does use perfect forward secrecy for secret chats in its official client, and can use it for normal chats. Telegram does not explain this apparent contradiction in their specification.

But let’s take Telegram’s specification at face value, and that loss of an authorization key would allow retrospective decryption of messages. What would this mean?

The point of this cryptographic property is to protect encrypted messages in the event that a device key is stolen. Device keys can be stolen by hacking into the phone remotely, or by physically extracting them directly from the device forensically.

Telegram’s paragraph says that it “probably doesn’t matter” that its cryptography doesn’t have this property. According to them, if a device is stolen, all of the prior messages can probably be accessed anyway.

The problem with Telegram’s hand-waving here, though, is that this scenario is exactly the one Ihor faced. When Ihor was arrested, Russian occupation forces gained access to his device. They will have certainly have read all of the messages he had previously exchanged with Smoke that were still available on the device.

But here’s the thing: we also know that those were only some of the messages Smoke and Ihor had previously exchanged. That’s because Ihor and Smoke had previously discussed their way of secretly alerting each other if their communication became compromised—something which Ihor later did. Russian forces were fooled, which means they didn’t read those earlier messages.

If the Russian forces had been a bit more competent, they could have used this flaw in Telegram to read those earlier messages and to detect and punish Ihor’s deception. In fact, this flaw would have let the Russian occupiers decrypt all of Ihor’s messages—including secret and self-deleting messages—as well as all messages that he sent to Smoke after his detention without needing Ihor to send them screenshots.

All Russia needed to do to exploit this flaw was to extract the authorization key from Ihor’s device. That key, according to Telegram’s own documentation, would have allowed Russia to go back to their big database of all intercepted Telegram communications and to decrypt all of the ones belonging to Ihor. That would reveal not just copies of all the Telegram chats on Ihor’s phone, but also all the ones he’d subsequently deleted. It would decrypt all of his normal chats and calls.

Telegram’s decision to not consistently use this cryptographic property in all messages stands in contrast to all other major encrypted chat applications. If Ihor had instead used WhatsApp, Signal, or iMessage, this risk would simply never have existed.

To be sure, regardless of which encrypted app they used, Russian forces could (and would) have compelled him to open his phone and show them the messages on the device, but there would be simply no way to view the messages deleted from the device prior to his detention: the cryptography would guarantee it.

Photo: a tank trap in Kyiv, painted in the colors of the Ukrainian flag

Telegram’s flaws put everyone at risk. It’s time to switch

Ihor was extremely brave in his actions behind enemy lines. But he was also extremely lucky. He and Smoke made a minor screw-up by using normal chats and not secret chats—an error that is only possible in Telegram because chats are not end-to-end encrypted by default.

Russia could have used this error to extract their communications from Telegram’s servers, detect Ihor’s deception, and execute him for it. For some reason they didn’t here. At least not in this case.

Had Russian forces done this, Ihor’s tip-off to Smoke would have been detected, and he likely would not have survived to see his city liberated by Ukrainian forces.

Russia instead relied on a third defect in Telegram to surveil communications metadata between Ihor and Smoke, allowing them to watch Ihor’s communications and to ensure he sent them screenshots of his chats with Smoke.

All three of these issues exist only because of Telegram’s choice to leave their app insecure. The two most serious of these flaws are well-known to Telegram’s engineers—they chose to not fix them on purpose.

Ihor—and others like him—placed their personal safety in the hands of Telegram, and Telegram repeatedly let them down. And it’s important to remember that just because Russia did not exploit all of these in this case, there’s no way to know if the Russian government has exploited these flaws in other cases before, nor any guarantee they will not do so in future.

Had they exploited them in this case, Ihor would be dead, and we’d never know this was the reason why.

The long-story short is that it’s not safe to use Telegram for chats and calls. Anywhere. For anyone. But especially in Ukraine.

WhatsApp, iMessage, and Signal all take user security far more seriously, and proactively fix security issues when they arise. Had Ihor and Smoke used any of these apps, all three of these defects would never have been available for Russian forces to exploit.

It’s also important to switch even if you’ve got nothing to hide. If Ukrainian saboteurs in an occupied region are the only ones using, say, Signal or WhatsApp, that itself becomes a red flag for Russian occupiers. Other people need to switch too in order to let those who need the security blend in with everyone else.

Ihor survived due to Russian incompetence, not Telegram’s security. Or to put it in the immortal words of one Ukrainian soldier, “we’re very lucky they’re so fucking stupid”. It’s become almost an informal motto of the entire war.

But he, and others, shouldn’t have had to rely on Russian incompetence to be safe. Telegram promised them communications security. Ihor trusted his life to it.

Only thanks to sheer luck and Russian incompetence he didn’t pay the ultimate price for doing so.

Use Telegram for subscribing to channels, or broadcasting your own messages if you want. But for your own safety, and the safety of others, use a different app for chat and calls.

Correction: an earlier version of this post stated that Telegram does not have perfect forward secrecy on any chats. The official Telegram client does use perfect forward secrecy for secret chats with a key updating on a one-week period (or every 100 messages). Non-secret chats can, but are not obliged, to use perfect forward secrecy; Telegram clients are not required to use it, nor is a minimum key-rotation period required.

Last update: Wednesday 1252 ET

Context and missile strikes inside Ukraine

The strike on Poland took place within the context of a massive series of strikes against Ukraine, which appear to have been primarily targeting power and associated critical infrastructure in Ukraine. Russia has been attacking Ukrainian power infrastructure in earnest since approximately April, with a marked increase in attacks since October 10, shortly after a change of military leadership inside Russia and very shortly after the attack on the Crimean Kerch bridge.

At this point it seems certain that Russia has a top-level objective of disabling power infrastructure across the entire country. Ukraine’s Deputy Minister for Energy stated that today’s attack is the largest-scale shelling of the energy system in Ukraine since the beginning of the war.

Tuesday’s attack involved approximately 100 Kh-101 and Kh-555 cruise missiles and at least 10 drones, the largest mass-attack since October 10. Ukraine claims to have shot down 73 of these missiles and all of the drones.

The attacks may have been planned as a response to Zelensky’s planned speech at the G-20 summit.

Not just Kyiv was hit: many other cities were left without power. Kyiv, Rivne, Zhytomyr, Lviv, Khmelnytskyi, Dnipropetrovsk, Poltava, Vinnytsia, Odesa, Kirovohrad, Cherkasy, Volyn, and Kharkiv regions were all hit, with partial or total power outages in many areas.

Reporting and pictures show many of these cities and regions without power.

For example, in Kyiv:

In Lviv:

In Kharkiv:

The strike in Poland

According to the Polish government, the strike took place at 15:40 local time in the village of Przewodów in the Hrubieszów poviat in the Lubelskie Voivodship, killing two Polish citizens.

Map graphic of impact site inside Ukraine via BBC News

Who fired it?

On this question, Poland and NATO allies are being cautious.

Some open-source analysis of the debris suggests that the debris is from an S-300 missile.

This type of missile is common in Ukranian air-defense systems, although it can also be used for ground-to-ground launched attacks. The location is very far from Russia, making that more unlikely. It could have been fired from inside Belarus—Russia has done missile strikes from there against Ukraine in the past—but it’s perhaps less likely.

Note that Polish and US radar defense systems should be able to concretely determine where the missile was launched from; we will not have to rely on guesswork on this question for long.

The Polish government is being cautious. The Polish MFA says the missile strike was “Russian made”, although that doesn’t say specifically that the missile was fired by Russia. Polish President Duda is even more cautious, saying “we do not have any conclusive evidence at the moment as to who launched this missile... it was most likely a Russian-made missile, but this is all still under investigation at the moment”

Update: the Polish president has said

From the information that we and our allies have, it was an S-300 rocket made in the Soviet Union, an old rocket and there is no evidence that it was launched by the Russian side. It is highly probable that it was fired by Ukrainian anti-aircraft defense

The Ukrainian government is saying the missile was fired by Russia. Ukrainian Foreign Minister Kuleba goes further, saying that any suggestion that it was a Ukrainian air-defense system is a conspiracy theory.

Ukranian President Zelensky says “I have no doubt that it was not our rocket.”

The US government is being cautious. President Biden said, when asked on whether the missile was fired by Russia: “There is preliminary information that contests that. I don't want to say that till we completely investigate, but it is—it's unlikely, in the lines of the trajectory, that it was fired from Russia. But we’ll see.”

Be careful here too: note that from Russia and by Russia are slightly different.

Three anonymous US government sources have told the AP that preliminary US assessments suggested the missile was fired by Ukrainian forces at an incoming Russian one amid the crushing salvo against Ukraine’s electrical infrastructure Tuesday.

Nato’s secretary general says that an investigation is continuing, but initial analysis suggests the explosion was “likely caused by a Ukrainian air defence missile fired to defend Ukrainian territory” against Russian missile attacks.

The Russian government denies the attack, although there is ample evidence of them targeting Lviv, just 70km away from Przewodów. The MOD official response is given below (MFA also denied the attack at the UN, citing the MOD one):

The statements of the Polish media and officials about the fall of "Russian" missiles in the Przewodów area is a deliberate provocation. No strikes were made against targets near the Ukrainian-Polish state border by Russian weapons. The fragments published in hot pursuit by the Polish media from the scene in the village of Przewodów have nothing to do with Russian weapons.

What was the target?

It’s not 100% clear yet what the exact target was, but it’s unlikely the missile hit the correct target, given the lack of strategic value of the impact site.

The site of the explosion is close to some of the main electricity connection points connecting the Ukrainian electricity grid to the Polish (and EU) grid. It is possible Russia intended to destroy this connection point, although obviously this is not yet confirmed.

Polish Response

So far, most of the diplomatic response has been internal-facing and alliance-management as Poland and NATO plan their next steps. But so far:

• Poland has summoned the Russian ambassador

• Poland convened the Council of Ministers Committee on National Security and Defense Affairs to discuss the incident.

• Poland increased the readiness of its forces, including surveillance of its airspace, but Polish PM also called for calm: “I am calling on all Poles to remain calm in the face of this tragedy. We must exercise restraint and caution.”

NATO Article IV

Poland has invoked Article 4 of the NATO treaty to trigger an urgent meeting of NATO permanent representatives. This will take place in Brussels on Wednesday.

Be careful not to confuse NATO Article IV with its Article V neighbor. Article IV is very simple. It’s full text is:

The Parties will consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the Parties is threatened.

In this case, the sole function of Article IV is to summon the permanent representatives of NATO — the NATO ambassadors — to an urgent session to discuss the situation. It is a mechanism to begin an urgent conversation; it does not determine the outcome of that conversation. We’ll have to wait for Wednesday for that.

Update: NPR Journalist Teri Schultz is reporting that Poland may have withdrawn its request for an Article 4 meeting, but that the pre-arranged meeting of permanent representatives at 10am local time will go ahead anyway.

Joint statement of NATO and G7 leaders

World leaders who were unrelatedly at the G-20 summit in Bali have attended an emergency round-table meeting on the strike.

Several world leaders attending the emergency round-table in Bali. Leaders in attendance from bottom left represent the EU Commission, Italy, Germany, France, Canada, US, UK, Spain, The Netherlands, Japan and the European Council. (US Secretary of State Blinken is also visible as a non-principal attendee).

The Joint statement of NATO and G7 leaders at the G20 summit in full:

Today [Nov 15], the Leaders of Canada, the European Commission, the European Council, France, Germany, Italy, Japan, the Netherlands, Spain, the United Kingdom, and the United States met on the margins of the G20 Summit in Bali and released the following statement:

We condemn the barbaric missile attacks that Russia perpetrated on Ukrainian cities and civilian infrastructure on Tuesday.

We discussed the explosion that took place in the eastern part of Poland near the border with Ukraine. We offer our full support for and assistance with Poland’s ongoing investigation. We agree to remain in close touch to determine appropriate next steps as the investigation proceeds.

We reaffirm our steadfast support for Ukraine and the Ukrainian people in the face of ongoing Russian aggression, as well as our continued readiness to hold Russia accountable for its brazen attacks on Ukrainian communities, even as the G20 meets to deal with the wider impacts of the war. We all express our condolences to the families of the victims in Poland and Ukraine.

NATO Permanent Representatives Meeting

This occurred at 10am Brussels local time on Wednesday, followed immediately by a meeting of the military committee of the NATO alliance—tho be careful of overreading into the name of the committee here: it doesn’t mean a military response is likely.

NATO Secretary General Stoltenberg briefed the press, saying the investigation is ongoing, but initial analysis suggests the explosion was “likely caused by a Ukrainian air defence missile fired to defend Ukrainian territory” against Russian missile attacks.

What’s next?

We don’t know yet. We’ll now need to wait for NATO leaders and for forensics on the ground to give a better indication of the facts on the ground. But an initial consensus seems to be already emerging is that the missile was likely a misfire by Ukranian air defense systems in combating the massive cruise missile attack against Ukraine, and not an intentional strike on Poland by Russia.

It is very unlikely that under any scenario that Poland or NATO will engage Russia directly with conventional force. NATO has so far expressed extreme reluctance to do so, in no small part due to Russia’s massive strategic nuclear arsenal. While some commentators have made reference to NATO Article V (not to be confused with Article IV which was invoked), bear in mind that Article V is neither automatically invoked, nor automatic in response. There is no circumstance in which Poland or NATO will “accidentally” enter a direct conflict with Russia without (at minimum) substantial political will to do so, which, for good reason, is not there currently, and unlikely to change absent some very dramatic new events.

In my view, an intentional attack by Russia against Poland was always very unlikely. In much the same way that NATO is reluctant to engage Russia, Russia has also shown enormous reluctance to engage NATO (for basically the same reason). Moreover, Russia gave Poland and NATO no prior indication that they were planning an attack or signal against NATO or Poland, and immediately denied the attack, making it very unlikely that Russia was trying to send a “signal”.

Nevertheless, and regardless of whether the missile itself was fired by Russia or intentional, Poland and its allies are already clear: the explosion and loss of Polish life is Russia’s fault. This makes sense, because under virtually any conceivable scenario, the explosion would not have occurred but for Russia’s massive series of strikes against Ukraine. A response will therefore take place, but it far more likely to be in the form of additional military support to Ukraine, and not in the form of a direct intervention of any kind.

See, for example, the second paragraph in Wedneaday’s US national security council statement, which lays the blame squarely on Russia for the wider context that led to the explosion, if not the explosion in Poland itself:

Beware contemporaneous but uncorrelated events

Two other events happening in Ukraine that are major, but very likely uncorrelated.

Biden asks Congress for $37.7bn package of support to Ukraine

This was announced during the attacks in Ukraine but before the strike in Poland was reported. It is probably a meta-fund that the executive branch can draw down in tranches in the next year as a result of losing control of the House of Representatives. I explain more over here why I expected it, and what it will probably look like.

CIA Director Burns was in Kyiv at the time at the embassy

This visit was unannounced, and likely uncorrelated. Burns was in the US embassy in Kyiv, Russia was attacking power infrastructure in Ukraine, and would be extraordinarily unlikely to attack US embassy property or senior US officials directly as part of this conflict.