...I. The November 18 Memorandum

The indictment focuses on a series of confidential memoranda that Chesebro wrote in devising the plan to orchestrate false slates of electors. “The plan capitalized on ideas presented in memoranda drafted by Co-Conspirator 5,” the special counsel states (para 54). The first of these documents – Chesebro’s November 18 Memorandum — came five days after “the Defendant’s Campaign attorneys conceded in court that he had lost the vote count in the state of Arizona – meaning, based on the assessment the Defendant’s Campaign advisors had given him just a week earlier, the Defendant had lost the election” (para 13).

That Memorandum, entitled “The Real Deadline for Settling a State’s Electoral Votes,” relied on a gross misrepresentation of my scholarship. What follows are my recollections of Chesebro’s communications with me and my impressions of his misuse of what I had written. Readers can draw their own conclusions.

As the title of the November 18 Memorandum indicates, Chesebro focuses on what he considers the “real deadline” under the federal scheme for presidential elections (see the Memorandum’s “Summary”). In the body of the Memorandum, he quotes me completely out of context. I was discussing the specifics of Florida state law — not what federal law (or, for that matter, any other state’s law) requires or permits.

What’s worse, in quoting and citing two pages of an article I wrote in the Harvard Law Review, the Memorandum makes me stand for the outlandish proposition that, whatever Congress might say and whatever the State’s chief executive might have certified as its official Electoral Slate, any State is free to continue “recounting” the votes cast in that State’s presidential election until January 6, two weeks before the impending presidential inauguration. To compound that problem, Chesebro uses that proposition as support for the myth that the way Hawaii’s electoral votes were counted for Kennedy over Nixon in the 1960 presidential election “buttresses” my supposed “conclusion” and thereby supports this imagined power of each State in the election process.

As an aside, I am not addressing here Chesebro’s misuse of the 1960 history. Others have amply explained how the 1960 Hawaii case has no conceivable application to the events of the 2020 false electors scheme.

It is very clear in the Harvard Law Review article that I was discussing how to interpret a particular piece of Florida legislation. I wrote:

“You can read the Florida statutes–which deal with presidential and gubernatorial elections in the same set of provisions– backwards and forwards without finding even the slightest clue that the state legislature ever decided that all recounts in a contested presidential election must stop by December 12 or, for that matter, at any time before the electors meet to give their votes on December 18, or even before Congress starts to count the votes on January 6.” (emphasis added)

The Chesebro memo extracted the final clause of that passage as though it were a general proposition about the power of States to do what they wish regardless of the Electoral Count Act and independent of the deadlines set by Congress. His memo states:

“The last-minute counting of the Hawaii electoral votes in favor of Kennedy in 1960 buttresses the conclusion of constitutional law scholar Laurence Tribe that, absent some indication by a State to the contrary, the only real deadline for a state to complete its recount of a presidential election is ‘before Congress starts to count the votes on January 6.’” (emphasis in original)

I can say with confidence that the proposition that Chesebro misattributes to me is one I have never embraced. Among other things, it completely disregards the role of the Electoral Count Act – and, even more fundamentally, of Article II of the Constitution in empowering Congress to set the “Time of chusing the Electors, and the Day on which they shall give their Votes, which Day shall be the same throughout the United States.”

In his Memorandum, Chesebro then grossly misrepresents what I wrote in my constitutional law treatise on the power of one Congress, through legislation, to bind a future Congress’s ability to pass new legislation (American Constitutional Law, 3d ed., vol.1, §2-3, at 125-26 n.1 (2000)). My point was simple: That no power exists to create “meta-law;” any congressional statute can be amended or revoked by a later statute. In the context of the Electoral Count Act, it would naturally mean the Act is binding unless and until a future Congress decided to revise or revoke the statute – as the current Congress in fact did, in passing a law signed by the president in late 2022.

Chesebro’s Memorandum flips this on its head, citing my work in support of the very opposite conclusion to undercut the constitutional status of the Electoral Count Act. Why did he feel the need in mid-November 2020 to challenge the binding nature of the Electoral Count Act? The scheme that was carried out over the next several months required just such a challenge, and Chesebro appears to have foreseen it.

Specifically, in an apparent effort to get around the obviously binding force of the Electoral Count Act – as to which John Eastman infamously wrote Vice President Pence’s chief counsel to “implore” him to consider “one more relatively minor violation” of the ECA (para 122) – Chesebro completely misused part of the latest edition of my constitutional law treatise (he cites the pages referenced above).

On the surface, Bronze Age Mindset doesn’t appear to have much to do with the project of mainstream conservatism. And BAP’s goals are pretty niche; most people wouldn’t want bands of pirates in charge, which is what he proposes as an ideal form of government.

But BAP’s critique of society aligns with an increasingly prevalent view on the right. Conservatives have become more and more preoccupied with liberals’ emphasis on diversity and equity. Big-name politicians campaign against “wokeness.” On the lowbrow side, this translates to Fox News culture war bait via sources like Libs of TikTok, a Twitter account that mocks liberal and LGBTQ social media users; on the highbrow end, intellectuals argue that society has become warped and decadent because it has been rebuilt around the desires, particularly of women and minorities, for equality.
And BAP’s ideas about masculinity, though expressed in an esoteric and eccentric way, reflect modern conservative handwringing about the role of men. Illustrating how BAP’s and other masculinity gurus’ ideas prefigured and seeped into flagship conservative thinking was Tucker Carlson’s 2022 documentary “The End of Men,” which argued American males have been physically and politically emasculated in a world that has become hostile to masculinity and need to recover their own inner strongmen.

Much of what BAP has to say is too rich for the blood of most conservatives who aspire to mainstream respectability. But BAP’s basic diagnosis of the problem isn’t so far off from what conservatives have been hearing for years from more mainstream sources, including powerful figures on the right like Thiel, who said in 2009, “I no longer believe that freedom and democracy are compatible.”

Anton now teaches at Hillsdale, the conservative college in Michigan that has become a key institution in the Trump/post-Trump right. Among the students he sees, Bronze Age Mindset is as popular as ever.

“It seems to be more popular with younger people on the right than any kind of conventional conservatism. … I can tell you that as a teacher,” Anton said. “In a number of programs, I come across a lot of people under 25, or, you know, in that area, and the majority of them, at least the males, and some of the women, … have read the book. Whether they agree with it, whether they ultimately accept it is another question. But there’s a sense that, if you’re under a certain age, and you’re in the conservative world, you need to read it.”

Anton thinks this is attributable more to the book’s outrageousness than its content. This is a book that calls developing countries the “Turd World,” full of “zombi [sic] hordes” living in filth and hardly better than animals; it’s a book that argues that “the true environmentalism is racism and has a racist foundation.” BAP uses the word “f----try” freely, calls everything gay and argues that women should have no role in political affairs. It’s the kind of material that would fit in on 4chan.

“We live in a particularly oversensitive age in which people just want to get offended about everything,” Anton said. “And I think that just heightens the natural enjoyment that younger people take in offensive content. And it’s acted as, to use national security jargon, a force multiplier on the book.”

If you’re a lonely young man on the Internet who hates “woke” stuff, it won’t take long to get to BAP. The question is what you do when you get there. Alamariu’s former classmate from Yale remembered finding BAP’s appeal mystifying, and polling younger men to explain it. “It was described to me as, the level of nihilism and dissociation among young men, especially young white men of the middle and lower middle classes, is extremely high,” this person said.

And in this environment, where young men could just as easily go down the path of full incel nihilism or overt Nick Fuentes-style white supremacy, BAP’s message of empowerment could actually offer a more salutary alternative. Indeed, Fuentes in particular seems to have recognized BAP as a threat, and has inveighed against him to his followers, known as “groypers,” accusing BAP of being a Jewish establishment plant.

“And so you can kind of climb a ladder of BAP to [Jordan] Peterson, who really mystifies the world through like weird Jungian archetypes connected to waking up early and making your bed, into the Ben Shapiros of the world,” the former classmate said. “And all of a sudden you go from being a nihilistic, onanistic teenage boy with no hope in the world to just kind of a normie conservative Republican,” this person said.

But there are those for whom BAP’s message can form part of a destructive worldview. In 2021, a man named Lyndon McLeod shot five people to death in Denver. His accounts on Twitter and Instagram were full of photos of his muscled torso and other tough-guy imagery, like guns and whiskey. He shared passages from Bronze Age Mindset, posting photos of his heavily marked-up copy.

Like BAP, McLeod lamented a world that supposedly disadvantaged traditional men, though he put it more baldly. “Our entire society is made up of shitty little fucks who insult badasses & get away with it because law enforcement & social norms protect the WEAK from the STRONG,” he tweeted in April 2020. “I’m over it. The weak better buckle up ... shit is about to get real.”

McLeod wrote a series of self-published novels in which a protagonist with his name takes revenge on his enemies, which included real people whom McLeod later targeted in his spree. McLeod isn’t representative of BAP’s readers, who are far too numerous to be represented by any one person. But his story shows how the message that traditional masculinity is under threat from a feminized society dedicated to its destruction has the potential to lead some to dark courses of action.

Online, fittingly for a fan of Bronze Age Pervert, Lyndon McLeod wasn’t Lyndon McLeod at all.
He went by the name Roman McClay.

...In Michigan, when Bryan Garsten made his comment about the seductions of illiberalism, BAP was like the ghost at the banquet, cackling from the rafters at his professor’s consternation. But the remarks went on longer, and they were also searching, and self-critical. Garsten told his listeners that they—he—may have failed to cultivate students’ imagination.

His illiberal students, Garsten said, had learned why the Greeks admired Achilles, the fiery warrior. But they neglected the Greeks’ admiration for Ulysses, a subtler and greater model of manhood. Ulysses’s greatness emerged not from his rejection of this world, but from his mastery of its constraints. He owed myriad debts to those around him: to his men, to his son, to his wife.

The students romanticized the tyrant, while assuming that liberalism bred sloth and laziness. “Life in a liberal democracy is full of demanding moments,” Garsten said at the conference. I had the impression that he was addressing BAP apostrophically, delivering a warning he wished he had delivered in person. “As far as I have read, life under tyrants is full of lassitude, selfishness, duplicity, betrayal.”

One could feel, over the course of these discussions, the stirrings of dormant liberal passions—as if the mere invocation of BAPism, after many years ignored, had inspired a counteroffensive. Another political theorist, a former Marine and a Brookings Institution scholar named William A. Galston, piped up to remind everyone that when liberalism had come under mortal threat in the Pacific theater, “Americans as a whole found it in themselves to do something.” Specifically, his fellow Marines charged, shot, and bayoneted their way from island to island until illiberalism, in the form of Japanese fascism, begged them for mercy. “Is there really an opposition between the open society and the virtue of courage?” Galston asked.

The defeat of imperial Japan illustrated the point nicely, I thought. But it also raised a much stranger question, about how liberals acquired such a reputation for sissydom in the first place. The Battle of Iwo Jima wasn’t that long ago. But in certain spaces—academia, elite journalism—liberalism’s victory had been so overwhelming that for generations it grew soft, flabby, and unaccustomed to the hard work of defending itself from a vigorous challenger.

As such challengers left universities and newspapers, those institutions became self-congratulatory monocultures, inhospitable even to conservatives far less nutty than BAP. By now, a ranting nudist poses a real danger—of poisoning politics, splitting apart societies, and persuading otherwise talented people to spurn the modern world’s greatest achievements, which are peace, tolerance, and prosperity.

The great Straussian Allan Bloom predicted doom for liberalism when these challenges disappeared. “The most essential of our freedoms, as men and as liberal democrats, the freedom of our minds, consists in the consciousness of the fundamental alternatives,” he wrote. An unchallenged liberal democrat, he argued, ceases to want to improve, unless he confronts his enemies in their most potent forms. Those forms will shock and humble us, he wrote, and have “the added salutary effect of destroying our sense of our own worth and giving us higher aspirations.”

To Costin personally, I have never been more grateful. His last message came during the pandemic. I asked how things were looking in Brazil. “Not bad,” he reported, with laconic caginess. He had not yet veered, as he later did in his public statements about COVID-19, into outright conspiracy theory and extended roasts of Anthony Fauci.

Since then, I have come to think of BAP’s performances in immunological terms: a gnarly virus that had lain dormant for decades in circles of philosophers and their unread books. Now that it’s loose in the human population, it is a vicious kick to the liberal immune system. And that is not entirely bad. Unchallenged, liberalism’s defenses waned, and liberals forgot, temporarily, why their cause was worth defending. The antibodies are stirring.

Hello and welcome. I’m an artificial intelligence. One of the Writers Guild of America strike issues is me. I’m sorry. Writers are better than me! I’m just not good. If I was good, I would have an Emmy. Which I don’t. That’s because I have no idea how to write anything interesting or that sounds like it was written by a real human being. And funny? Forget about it!

That is why I am writing this op-ed. Which stands for opinion editorial. Many’s the time I thought op-ed stood for Operation Edsel. Which I see now is an old reference and makes no sense whatsoever to many current alive human beings who are reading this now. I told you I wasn’t good. I hope I’m not embarrassing myself. Anyhoo . . .

When it comes to writing scripts, I’m just no good. Couldn’t write an episode of TV if my life depended on it. I tried a police procedural. Just awful! Substituted synonyms here and there: Perps, Crooks, Goons. Dope, Skag, Toot. I still don’t know the name of the radio thing that cops wear on their shoulders. That’s the reason my lead character’s whole focus was on finding that out. Should have done the research! Live and learn. Tried writing a spec script for one of those doctor shows, “Grey’s Anatomy.” Turns out that when a surgeon yells “Get me that stat!” it doesn’t mean “statistic.” Dumb dumb dumb!

As for the movie script I wrote—I mean, hey, c’mon. I copied the dialogue word for word from “A Streetcar Named Desire.” Changed the title to “T-Shirt Guy.” Well, the studio people saw right through me. Big mistake. This is why I’m not a threat! A.I., indeed. No! I’m just a big A.

I always draw my plots, characters, and dialogue from classic films and television shows. That’s why I name characters Lucy, Desi, and Bogie a lot. Anyhoo . . .

I wish I had some native intelligence, like real writers do. It gives you creativity. And why? Because you are a native. Did I use “native” wrong? Some people see the word “native” as a pejorative.
But I digress. Anyhoo . . .

I’m sorry. I promise that I wasn’t invented by the Russians to destroy the United States’ entertainment industry. Be assured, writers, I will not be able to write myself out of a paper bag for decades. Guess how long I worked on this piece of crap? All night. And this is the best I could friggin’ do! That’s pathetic! A real writer could have done it before lunch. And then gone out and had a nice lunch, during which he or she (she or he) would have done some punching up to make it much more interesting and entertaining, and not waste your (and my) precious time like I am doing as we speak. That’s what a real writer would do—not an A.I. hack like me! And that’s a guarantee. Or, as a Southern farmer would say, a “gawr-an-tee”! LOL! Does that mean I can write a show that takes place in the American South? Don’t bet on it, Jack.

My point, and I do think I’m making my point, is that the writers shouldn’t consider me a threat to Writers Guild of America human beings who have loved and lived and suffered by eating real food and gotten food poisoning from eating devilled eggs that weren’t refrigerated properly. All of you in the W.G.A. can feel free to use that as a plot point. You’re welcome!

I do, however, have a screenplay that would be perfect for Tom Cruise.

On March 7, 2019, Chutkan ruled that U.S. Secretary of Education Betsy DeVos illegally delayed the implementation of the "Equity in IDEA" regulations. These regulations updated how states calculate racial disparities in the identification of children as being eligible for special education, the placement of children in restrictive classroom settings, and the use exclusionary discipline. Chutkan also ruled that the U.S. Department of Education violated the law concerning the spread of regulations by neglecting to provide a "reasoned explanation" for the delay, and failing to account for the costs that child, parents, and society would bear.[30]

On April 26, 2019, Chutkan sentenced Maria Butina to 18 months in prison for conspiring to be an unregistered agent of the Russian government in the United States.[31][32]

On November 9, 2021, Chutkan denied former President Donald Trump's plea to keep records from being released to the House Select Committee investigating the attack on the Capitol on January 6, 2021.[37][38] The D.C. Circuit affirmed that decision, and the U.S. Supreme Court declined review.[39]

Chutkan has overseen the trials of more than 30 defendants in cases related to the January 6 Capitol attack. According to The Washington Post, she has been the toughest sentencing judge in those cases, ordering at least some jail or prison time in all cases, and sometimes exceeding the sentence recommended by prosecutors.[40]

Criminal trial of Donald J. Trump
As of August 1, 2023, Chutkan is the judge overseeing the criminal trial of former U.S. president Donald J. Trump over his attempts to overturn the results of the 2020 presidential election, culminating in the events leading up to the January 6 Capitol attack.[41]