Chuck Grassley Archives - Page 2 of 12

Posts

How Tucker Carlson Duped the People His Producer Called “Dumb … Cousin-Fucking … Terrorists”

March 14, 2023/87 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

In response to Tucker Carlson’s misleading propaganda claiming that Jacob Chansley was just a peaceful tourist escorted at all times by his own dedicated cop, a number of January 6 defendants are demanding mistrials because of claimed Brady violations.

Dominic Pezzola’s attorneys, for example, argued that the video released by Tucker shows that the Senate never had to recess, which (they claim) undermines the government’s obstruction claim against the Proud Boys.

Never during this trial has there been any evidence of any raucous or extremely disruptive or violent demonstration in the Senate chamber. (There have been a few images of demonstrators sitting on chairs or standing in the well of the Senate.)

Then came the Tucker Carlson show on the evening of March 6, 2023.

On March 6, Tucker Carlson released shocking footage from January 6th, 2021 that showed “QAnon Shaman” Jacob Chansley walking calmly through the halls of the Capitol with two Capitol Police officers. At one point, one of the officers appears to try opening a door or elevator, and then turns and leads Chansley in another direction. Later in the video clips, Chansley is seen walking past nine police officers gathered in a hallway intersection. Chansley and his police escorts walk right past the nine officers without any resistance.

And then the Tucker Carlson show presented footage of officers calmly escorting Chansley (and apparently other protestors) into the Senate chamber. The Washington Post wrote that Albert Watkins, Chansley’s attorney through sentencing in November 2021, said he had been provided many hours of video by prosecutors, but not the footage which Carlson aired Monday night. He said he had not seen video of Chansley walking through Capitol hallways with multiple Capitol Police officers.

“What’s deeply troubling,” Watkins said Tuesday, “Is the fact that I have to watch Tucker Carlson to find video footage which the government has, but chose not to disclose, despite the absolute duty to do so. Despite being requested in writing to do so, multiple times.” [emphasis original]

The government’s response lays out that, in fact, both Chansley’s attorneys and Pezzola’s received this video in global discovery (there was a 10-second segment not released until January that was not exculpatory, which likely shows a Senator fleeing even as Pezzola stands just feet away — see below).

Pezzola’s motion describes “shocking footage” of Chansley “walking calmly through the halls of the Capitol” with two police officers who purportedly “escort[] Chansley (and apparently other protestors) into the Senate chamber.” ECF 679, at 4. Pezzola quotes Chansley’s former attorney for the proposition that the government “withheld” this footage from discovery in Chansley’s and Pezzola’s cases. Id. The footage is not shocking, and it was not withheld from Pezzola (or Chansley, in any material respect, for that matter).

The footage in question comes from the Capitol’s video surveillance system, commonly referred to as “CCTV” (for “closed-circuit television”). The Court will be familiar with the numerous CCTV clips that have been introduced as exhibits during this trial. The CCTV footage is core evidence in nearly every January 6 case, and it was produced en masse, labeled by camera number and by time, to all defense counsel in all cases.3 With the exception of one CCTV camera (where said footage totaled approximately 10 seconds and implicated an evacuation route), all of the footage played on television was disclosed to defendant Pezzola (and defendant Chansley) by September 24, 2021.4 The final 10 seconds of footage was produced in global discovery to all defense counsel on January 23, 2023. Pezzola’s Brady claim therefore fails at the threshold, because nothing has been suppressed. United States v. Blackley, 986 F. Supp. 600, 603 (D.D.C. 1997) (“For an item to be Brady, it must be something that is being ‘suppress[ed] by the prosecution.’”) (quoting Brady v. Maryland, 373 U.S. 83, 87 (1963)).

While discovery in this case is voluminous, the government has provided defense counsel with the necessary tools to readily identify relevant cameras within the CCTV to determine whether footage was produced or not. Accordingly, the volume of discovery does not excuse defense counsel from making reasonable efforts to ascertain whether an item has been produced before making representations about what was and was not produced, let alone before filing inaccurate and inflammatory allegations of discovery failures.

3 The productions excluded a limited set of footage that the Capitol Police designated as security information, such as X-Ray machine feeds and views of evacuation routes and Sensitive Compartmented Information Facility (“SCIF”) office lobbies.

4 The remaining CCTV was disclosed in global discovery on January 23, 2023. It similarly – as with other CCTV – depicts defendant Chansley outside of the Senate Chamber with law enforcement, after his initial breach of the Chamber.

It’s hard to overstate how much this exchange vindicates DOJ’s decision to make all the January 6 video available to all defendants, which delayed trials for probably six months, but which ensured that at the moment defendants like Chansley and Pezzola started claiming they didn’t get something, DOJ could point to when they in fact did receive it.

DOJ rebuts Pezzola’s argument that any of this is exculpatory, relying, in part, on former Army Staff Sergeant Joe Biggs’ description of overwhelming the Capitol.

Pezzola’s argument seems to be that the snippets of Chansley’s movements that were televised by Carlson establish that there was no emergency necessitating the suspension of proceedings. The televised footage lacks the context of what occurred before and after the footage. Chansley entered the building as part of a violent crowd that gained access as a result of Pezzola’s destruction of a window and he traveled with Pezzola during the initial breach. And just as Defendant Biggs had recounted in a recorded statement after January 6, 2021, by the time Pezzola forcibly breached the Capitol and Chansley rode his coattails, the mob—through the sheer force of its size and the violence of those within it—had wrested control of portions of the Capitol grounds and the Capitol itself from a vastly outnumbered U.S. Capitol Police force. 5 As a result, for a period that afternoon, those defending the Capitol were in triage mode—trying to deal with the most violent element of those unlawfully present, holding those portions of the Capitol that had not yet been seized by rioters, and protecting those Members and staffers who were still trapped in the Capitol.

5 Biggs stated, in part: “When you’re holding a position, like a fort, and you’re being overrun, if there’s three of you or four of you, and you’re outnumbered a hundred to one, are you gonna sit there and just go, ‘I’m holding the door’? No, you’re just gonna get your ass beat. That’s already gone. if that many people show up to your house, there’s nothing you can do about it.” Gov’t Ex. 611B. Biggs later continued, “You’re gonna stand up to [] tens of thousands of people storming that? No, that’s stupid. You step [] aside. That puts less chance of anyone getting hurt or anything like that, and you allow it to happen.” Id.

DOJ also lays out specifically how Tucker chose to release only video from after the damage — in the form of the violent breach of the Capitol and the decision to flee the Senate — had been done.

Chansley piggybacking on Pezzola’s violent breach of the Capitol provides more than enough evidence of his corrupt intent to interfere with Congress that day. But there is much more evidence of his and others’ conduct. The televised footage shows Chansley’s movements only from approximately 2:56 p.m. to 3:00 p.m. Prior to that time, Chansley had, amongst other acts, breached a police line at 2:09 p.m. with the mob, entered the Capitol less than one minute behind Pezzola during the initial breach of the building, and faced off with members of the U.S. Capitol Police for more than thirty minutes in front of the Senate Chamber doors while elected officials, including the Vice President of the United States, were fleeing from the chamber. Chansley then entered the Senate Gallery, where he proceeded to scream obscenities while other rioters rifled through the desks of U.S. Senators on the floor below. All these actions were captured by Senate floor and/or CCTV cameras. In sum, Chansley was not some passive, chaperoned observer of events for the roughly hour that he was unlawfully inside the Capitol. He was part of the initial breach of the building; he confronted law enforcement for roughly 30 minutes just outside the Senate Chamber; he gained access to the gallery of the Senate along with other members of the mob (obviously, precluding any Senate business from occurring); and he gained access to and later left the Senate floor only after law enforcement was able to arrive en masse to remove him. It is true that a sole officer, who was trying to de-escalate the situation, was with Chansley as he made his way to the Senate floor after initially breaching the Chamber, as the televised footage reflects.6 But the televised footage fails to show that Chansley subsequently refused to be escorted out by this lone officer and instead left the Capitol only after additional officers arrived and forcibly escorted him out.

6 Notably, this officer’s statement regarding these events was also disclosed in discovery to Chansley’s attorney on May 19, 2021.

It’s a classic lesson in how propaganda is made, by focusing on the least damning part of a story and suppressing the rest. It happens to have been released in the same period where the Dominion lawsuit revealed that Tucker’s then investigative producer, Alex Pfeiffer, likened Tucker’s own viewers to “dumb,” “cousin-fucking” “terrorists.”

“Might wanna address this, but this stuff is so f—— insane. Vote rigging to the tune of millions? C’mon,” Shah wrote.

Carlson’s producer, Alex Pfeiffer, responded: “It is so insane but our viewers believe it so addressing again how her stupid Venezuela affidavit isn’t proof might insult them.”

Shah advised that Carlson should mention the affidavit noting it was “not new info, not proof” but then quickly “pivot to being deferential.”

Pfeiffer, who has since left the network, answered that the delicate dance was “surreal.”

“Like negotiating with terrorists,” he added, “but especially dumb ones. Cousin f—– types not saudi royalty.”

The kerfuffle also gave journalists an opportunity to go back and ask for the video used in the Chansley case to be released to journalists.

One of the videos newly released to journalists shows the mob closing in on the Senate and — I suspect this may be the 10-second clip that was originally withheld — one or more Senators fleeing as a single cop holds off the mob by yelling “back off” repeatedly.

Kyle Cheney, who first pointed to this segment, suspects the fleeing Senator may be Chuck Grassley.

In other words, what we’ve learned from this incident is that Tucker is the one lying about what happened. DOJ, in fact, had been withholding some of the most damning video from the public but not defense attorneys, and Tucker’s propaganda effort has provided yet another glimpse of how many close calls the police managed to avert on January 6.

Jeremy Liggett: A Little Bitty Fly that Jim Jordan Wants to Propagandize

January 8, 2023/73 Comments/in 2020 Election, emptywheel, January 6 Insurrection /by emptywheel

Close to the end of a May 17, 2022 interview with the January 6 Committee, alleged Three Percenter Jeremy Liggett claimed that Joe Biden’s DOJ was weaponizing DOJ, “to include the CIA.”

I believe that we should have the First Amendment right. I believe that we should be able to protest at the Capitol. Okay? I don’t believe that you should hit law enforcement officers. Okay? I don’t believe that you should, you know, go into the building unless you’re invited. From some of the stuff that I’ve seen that’s fact, people were invited in. Okay? So let’s put that on the Capitol Police. Right? I think that the Capitol Police could have done a better job securing the building beforehand. I believe that the individuals that struck law enforcement officers or went in the Capitol inside should be charged, you know, for what they did. Okay?

But with saying that, okay, I believe that this administration, the Joe Biden administration, has weaponized the Department of Justice, okay, to include the CIA. Right? And I believe that you guys are — you guys, them, are swinging a big bat at little bitty flies. And it disheartens me, okay, that I am a citizen of a country right now, okay, that is locking people up on misdemeanor charges and keeping them in jail with no bonds, okay, for now months and possibly years. Okay?

The claim that Biden has weaponized DOJ (to include the CIA) is a common myth among the far right, just like the myth — which Liggett also espoused in the interview — that the election was stolen from Donald Trump.

In general, the claim that DOJ “is locking people up on misdemeanor charges and keeping them in jail with no bonds … for [] months and possibly years” is also false (though a defendant named Michael Gareth Adams, who was originally arrested in April 2021, just turned himself in Thursday after being on the lam from his January 6 trespassing charge and a Virginia hit-and-run warrant for over a year and he is at least temporarily being jailed pre-trial).

But Liggett’s case will likely be at the center of such false claims if a committee Kevin McCarthy gave the insurrectionist members of Congress to end their opposition to his election as Speaker is passed as part of the Rules package on Monday. (On George Stephanopoulos’ show this morning, Scott Perry, whose phone was seized last summer as part of the investigation, said he’d be a totally appropriate member to sit on the committee.) That’s because the arrests of five of Liggett’s associates as well as a related search of Liggett’s home are almost certainly at issue in events that led to the suspension of an FBI Agent, Stephen Friend, who will be a star witness of the committee.

As Friend described in a declaration shared with Chuck Grassley and Ron Johnson, he refused to participate in FBI arrests of a group of January 6 suspects charged the week of August 15 and arrested on August 24.

During the week of August 15, 2022, I became aware of imminent arrests of J6 subjects and searches of their respective residences within the FBI’s Jacksonville and Tampa Field Office areas of responsibility. Simultaneous takedowns were scheduled to occur on August 24, 2022. Due to perceived threat levels, an FBI SWAT team was enlisted to arrest one of the arrests.

[snip]

I responded that it was inappropriate to use an FBI SWAT team to arrest a subject for misdemeanor offenses and opined that the subject would likely face extended detainment and biased jury pools in Washington D.C. I suggested alternatives such as the issuance of a court summons or utilizing surveillance groups to determine an optimal, safe time for a local sheriff deputy to contact the subjects and advise them about the existence of the arrest warrant.

[snip]

I told them that I would not participate in any of these operations.

Though Friend has never said it, his complaints amount to a complaint that some January 6 defendants — including those associated with militias — are treated as a domestic terror investigation. In November, a whistleblower complaint Friend submitted was rejected by DOJ’s Office of Special Counsel.

Based on timing, it is virtually certain that the arrest Friend refused to participate in was that of Liggett’s associates in the “B Squad” or “Guardians of Freedom.” They were charged on August 16 and arrested on August 24, three of them in Florida. The only one not charged with felony civil disorder, Tyler Bensch, allegedly posted a picture of himself on January 6 with an assault rifle, which is the kind of thing that would lead the FBI to involve SWAT in an arrest.

There’s no public sign that Liggett has been arrested, though he claimed his house was searched the day that FBI made the other arrests. The case against his associates has been continued twice, once in October and again at the end of December, to allow for plea negotiations and the sharing of grand jury information (which sometimes suggests cooperation), with the next status due on February 14. Contrary to the claims of Friend and Liggett, all the men, even those accused of felonies, were released on personal recognizance.

Any investigation against Liggett, however, may be a different issue. Not only does the complaint against his associates claim he made the travel arrangements for forty men for January 6, not only did he conduct a training in advance on how to come armed to DC, but he’s a key pivot between the militias and the January 6 organizers.

On May 17, in his interview, the committee focused on the ties between Liggett and two people associated with the MAGA Bus Tour, Dustin Stockton and Charles Bowman.

Stockton, you’ll recall, was the organizer who made great PR for himself by telling Rolling Stone that he had objected to the violent rhetoric leading up to January 6.

But on December 30, 2020, the Committee showed in both Liggett’s and Amy Kremer’s depositions, Stockton was made a member of Liggett’s group.

Q Okay. And just if you focus on the first and third name that Bowman sends, Jeremy Liggett and Tarra Nicolle Hernandez. Just remember those. And if we look at exhibit 21, it is not an email you would have seen. I just want to ask whether he talked about it. You see that on December 30th of 2020, this person Tarra Hernandez, she was the name three on thatlist, sends to Mr. Stockton an email that says: ~ Welcome to Three Percenters, guardians of freedom. So, just a week before the event of January 6th, it is telling Mr. Stockton: Welcome to Three Percenters, guardians of freedom. It is an honor to have you on our team patriots. And then, if you look down there, there is a paragraph towards the bottom that says: Please be advised, per the founder, Jeremy Liggett, you have been moved and assigned as a full active member and not a prospect member. ~ Please disregard the mandatory meeting attendance mentioned in the attached documents. Again, just asking, do you recall him, Dustin, bringing up the notion that he joined the Three Percenters just a week before the event on January 6th?

A No. No. Yeah, no.

Stockton may have gotten involved via Charles Bowman, who did security for the Kremers at several of their events.

Q Do you remember who you used for security in December in D.C.

A Yeah. We used RMS Protective Services. And we also hired the — that first security company that we used for November 14th, we hired them again to be security at the Supreme Court.

Q There is a name we have seen, Charles Bowman, does he work with the security? Do you know that gentleman?

A I know, I do know Bowman. He — mean, he worked – I don’t know that he technically works with them, but — like as an employee, but I know he, you know, works with those guys.

Q Okay. So the folks that you used for November and it sounds like December or at least some of them, Bowman somehow worked with them?

A Yeah. I mean Bowman was I don’t how to describe Bowman. He’s like a big brother that’s always you know, it was lie he was always looking out for us and making sure, you know, that we were safe and whatnot.

Stockton was with both Bowman and Liggett at their December event.

Q Okay. I’m going to pull up page 8 of this exhibit. This is an email blast that Dustin Stockton sent out to some people on December 16th. And then he’s talking about being in an elevator with Charles Bowman, with the 3 percent team in D.C.

A I don’t know why they kept using that term.

Q Well, this is on Saturday December 12th and if you remember back from that welcome email, Dustin Stockton is the one who joined your group, but he’s in the back right here giving a thumbs up.

A Yeah. I know Dustin.

Q Oh, you do? Okay. How do you know Dustin Stockton?

A I’ve met him at rallies and things like that. He’s done speaking engagements. He seems like a nice guy.

Q Did he ever invite you to do speaking engagements?

A Yeah, uh-huh.

Q Did you meet up with him on December 12th?

A I’m trying to remember if — I’m sure there’s a possibility I did. Is that picture from December 12th?

Q This picture is from December 12th.

A Oh, yeah. Then I met with him on December 12th

According to Liggett, Bowman had been on the Guardians of Freedom Telegram chat for years.

Q Okay. So Mr. Bowman was on the Guardians of Freedom Telegram chats?

A Yeah, at one point.

Q Was there anybody else from the Women for America First organization that 11 were on those chats?

A No. No.

Q And was Mr. Bowman a member of Guardians of Freedom?

A No. No.

Q Okay. Why was he on the Telegram chats?

A I sent him an invite.

Q And why did you send him an invite if he wasn’t a member?

A Because he wanted to make sure that there was no one in our group that were saying anything bad about anything, because like I told you guys prior to or earlier, that there’s a lot of people — when you have — when you have organizations that try to get into the organization — they’re bad people. Like, from my knowledge, you know, the few times that I — that I spoke with him, I mean, they don’t want to be affiliated with any kind of extremists or anything like that. mean, that’s —

In addition to inviting Liggett to speak on January 5, Bowman also set Liggett up as a “marshal” for the Ellipse event on January 6. This is how Justin Caporale, one of the main organizers, described Liggett’s inclusion.

Do you remember having conversations with Women for America First organizers about having volunteers for the event?

A I don’t remember the specific conversation, but, yes, we would’ve had that conversation.

Q And what’s the job for volunteers at an event like this?

A To act as an extension of kind of the guest management team, you know, provide way finding, be greeters, you know, make sure if someone needs to find a rest room or food or water, that we can help them get to where they need to go.

Q Was there ever an instance where you thought these volunteers might be used for security purposes at the Ellipse event?

Q No, sir.

A Do you know who Charles Bowman is?

Q I do not.

A Do you remember having any conversations with a Charles Bowman?

A It’s very likely that I did, but I don’t — I don’t know or I don’t remember those conversations. His name does not ring a bell to me. I couldn’t pick him out of a line-up.

Q Okay. And, if we go up here, we see that Mr. Bowman ultimately sends a list of, you know, several names, including a Jeremy Liggett, L-i-g-g-e-t-t, and others: Robinson, Hernandez, Clark. For volunteers, do you know if there’s any vetting done for who’s selected to be a volunteer for these kinds of events?

A Most of the time, there’s not vetting done unless that volunteer is required to be in a secure location.

Q And so there would not have been a way for you to know, as the person requesting volunteers, whether any of these individuals were associated with a militia organization or paramilitary group like the Three Percenters or Oath Keepers or that kind of thing?

Q No, sir.

Liggett did serve as a “marshal.” Per his testimony, he in fact did show people where the bathroom was (in addition to escorting VIPs). He complained that he was not fed lunch as part of the deal.

Q Just a quick followup on that, Mr. Liggett. You said you were disappointed a little in your role on January 6th. Could you explain why you were disappointed?

A Yeah. It was boring. First of all, they put me in a pink vest. Okay? And no offense, I know you’re wearing a pink tie, all right, but I’m not the pink kind of guy. So I was in a bright orange and a bright pink vest. It was fricking cold as hell, okay, and they didn’t feed us lunch. And it was boring, completely boring.

Q The speeches or the activity that you were doing?

A Oh, I don’t know. I didn’t get to see the speeches. I was too busy walking people here and there and passing out signs and stuff. So I was disappointed.

[snip]

You guys should put that in your report, that it was cruel and unusual punishment by these rally people by not feeding us all day. So anyway — and you know they had the budget, because they ask for your money all the time, right.

But that’s not the most damning part of his testimony (for which he had no attorney). When specifically asked if he was the Three Percenter group with which fellow Floridian Kelly Meggs had formed an alliance, he denied it, 100% (he also denied that the B Squad was a Three Percenter group or a militia at all, in spite of integrating the Three Percenter logo into their bling).

So Kelly Meggs is also —

A Who’s Kelly Meggs?

Q He is an Oath Keeper from Florida. And so he says: Well, we are ready for the rioters. This week I organized an alliance between Oath Keepers, Florida Three Percenters, and Proud Boys. We have decided to work together and shut this shit down. He posted it on December 19th, after President Trump’s “will be wild” tweet. Do you have —

A I don’t know.

Q Do you know who this Florida Three Percenter group would be?

A No. No. I can 100 percent, without a doubt, tell you that that is not in reference to anything that we were doing before or — well, I can’t say anything after, but before January 6th, there’s no way, no way.

Q Do you have any guess or hint about which Three Percenter group in Florida Mr. Meggs was talking about?

A I mean, my guess would be — if I were an investigator and I was investigating this, I would probably look into the Three Percenter-Originals. That’s probably who I would look at.

But as the J6C report itself explained, Liggett was the guy on the chats with Meggs.

Meggs bragged on Facebook that following President Trump’s December 19th tweet he had formed an alliance between the Oath Keepers, the Florida Three Percenters, and the Proud Boys “to work together to shut this shit down.”359 On December 19th, Meggs called Enrique Tarrio and they spoke for more than three minutes.360 Three days later, Meggs messaged Liggett, echoing his excitement about the December 19th tweet and specifically referencing the seat of Congress: “He called us all to the Capitol and wants us to make it wild!!!”361 Liggett said “I will have a ton of men with me” and Meggs replied that “we have made Contact [sic] with PB [Proud Boys] and they always have a big group. Force multiplier. . . . I figure we could splinter off the main group of PB and come up behind them. Fucking crush them for good.”362 Aside from Meggs, Stewart Rhodes brought in at least one local militia leader363 and Three Percenters into the Oath Keepers January 6th planning chats that came about following President Trump’s tweet.364

Liggett denied being the guy involved with Meggs, but he did not deny knowing Enrique Tarrio. Which is interesting for a stray reference in the deposition of Samuel Armes, the head of the Florida crypto currency association who, in the interest of war gaming possible threats, wrote the first draft of a document that came to be known as the Winter Palace document. After receiving the document from Armes, Tarrio’s girlfriend shared it with the head of the Proud Boys. Tarrio seems to have referenced in the context of the successful occupation of the Capitol.

J6C asked Armes if he knew Liggett, who they suggested had some association with the document.

I think then — actually, do you know someone named Jeremy Liggett in Florida?

A L-i-g

Q Yeah, L-i-g-g-e-t-t

A Jeremy Liggett. To the best of my recollection, I have never heard that name in my life. Jeremy Liggett? Is he into cryptocurrency?

Q I’m not sure. But it was just a question based on this document, so–

No, I’ve never heard of him in my life.

A Okay.

The document was shared around as a Google doc, so the people who accessed it would be accessible to investigators. But Liggett, even more than the Proud Boys, appears to be a fan of the 1776 invocation, which the document used.

Liggett says that the people who are being prosecuted — like five of his associates (four of whom are accused of pressuring cops in the Tunnel, the worst of the fighting) — are just “little bitty flies” who shouldn’t be prosecuted. He claims to believe false claims about the election, about the treatment of Jan 6 defendants, and about FBI more generally.

And that is the point of this committee. It is the reason why, under the Mueller investigation precedent, DOJ’s inability to share grand jury information with Congress won’t stop this committee from being a problem.

Jim Jordan and Scott Perry want to use their committee to claim that men like Liggett, someone who ties the Ellipse event organizers directly to the worst of the violence, should not be investigated. They want to magnify the complaints of people like Friend, who call a DC-led investigation those who attacked the Capitol an abuse of FBI authority.

The reason why is clear — because the existence of someone like Liggett, who was escorting VIPs even as he was paying for travel of men involved in the tunnel fight — makes their own role in the insurrection more problematic. This committee is not about overseeing the FBI. It’s about trying to spin their own attack on the Constitution as something else than it was.

Update: Added the chat between Liggett and Meggs.

FBI Approved Igor Danchenko as a Source before It Stopped Doing Back-Door FISA Searches to Vet Informants

October 4, 2022/7 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

Last Thursday, Judge Anthony Trenga denied Igor Danchenko’s motion to dismiss, while making it clear the government’s case was really shoddy.

Judge Anthony J. Trenga ruled that Danchenko’s case must be weighed by a jury, clearing the way for his trial next month. But it was “an extremely close call,” Trenga said from the bench.

(This AP piece has more detail but it also makes really obvious errors.) While there’s no ruling on the docket, Trenga must have approved any remaining CIPA issues.

The frothers, of course, remain obsessed with the news that the FBI formally made Danchenko a confidential human source in 2017. Most prominently, for example, Chuck Grassley and Ron Johnson wrote a pissy letter to Merrick Garland and Christopher Wray demanding information about why he was made an informant by October 22.

In December 2016, the FBI’s Crossfire Hurricane team identified Danchenko as Steele’s primary sub-source and, according to the FBI, “became familiar with the 2009 investigation.”[8] The FBI, even in light of the extensive derogatory information attached to Danchenko, proceeded to pay him as a confidential human source three months later from March 2017 to October 2020 as part of Crossfire Hurricane. Therefore, while we were investigating the Justice Department’s and FBI’s misconduct with respect to Crossfire Hurricane, you maintained him on the government’s payroll.

This extraordinary fact pattern requires additional information from the Justice Department and FBI relating to why Danchenko was placed on the payroll and paid by the taxpayer to assist in the federal government’s flawed investigation into President Trump.

I hope to finish a post explaining why all the frothers are painfully stupid in their response to this news before Danchenko’s trial starts next week.

I’m not surprised that Grassley and Johnson are just as clueless on this point as the rest of the frothers.

But I am somewhat surprised that Grassley, the Ranking Member of the Senate Judiciary Committee, doesn’t know something about how FBI vetted informants until 2018, after they formalized Danchenko as one: They queried the person against all the FBI’s databases, including their FISA databases.

For example, we were told disputes occurred related to queries conducted for vetting purposes.52 Specifically, according to the FBI, it was concerned that as a result of the change to the query standard it could no longer perform vetting queries on raw FISA information before developing a confidential human source (CHS). FBI officials told us that it was important for agents to be able to query all of its databases, including FISA data, to determine whether the FBI has any derogatory or nefarious information about a potential CHS. However, because of the implementation of the 2018 standard, the FBI is no longer able to conduct these queries because they would violate the standard (unless the FBI has a basis to believe the subject has criminal intent or is a threat to national security). According to the FBI, because its goal is to uncover any derogatory information about a potential CHS prior to establishing a relationship, many agents continue to believe that it is irresponsible to engage in a CHS relationship without conducting a complete query of the FBI’s records as “smoking gun” information on a potential CHS could exist only in FISA systems. Nevertheless, these FBI officials told us that they recognize that they have been unsuccessful when presenting these arguments to NSD and the FISC and, as noted below, they follow NSD’s latest revision of query standard guidance.

Particularly given the past investigation into Danchenko and concerns about his past ties to Russian spooks, it is highly likely the FBI would have done such a back door search with Danchenko. They would have done it for precisely the concern Grassley and Johnson raised: to chase down some of the derogatory information on Danchenko from the earlier investigation. They would have done it to see the content of conversations he had with anyone of particular interest. Indeed, for a variety of reasons, the FBI likely could have done a backdoor search on Danchenko even after the querying standard changed in 2018.

The FBI likely made Danchenko a CHS not only for very good reasons, but for reasons that the frothers, if endless saturation inside a disinformation bubble hadn’t rotted their brains, might even approve of.

And before they did so, they likely did some very thorough vetting of him first.

John Durham Is Hiding Evidence of Altered Notes

April 5, 2022/29 Comments/in 2016 Presidential Election, 2020 Presidential Election, Mueller Probe /by emptywheel

On Monday, both John Durham and Michael Sussmann submitted their motions in limine, which are filings to argue about what can be admitted at trial. They address a range of issues that I’ll cover in several posts:

Sussmann:

Asks Judge Cooper to immunize Rodney Joffe or dismiss the case (addressed in this post)
Asks to prohibit introduction of privilege logs (addressed in an update to this post predicting something similar would happen)
Argues that Bill Priestap and Trisha Anderson’s notes are inadmissible hearsay and unreliable (this post demonstrates similarities between these notes and those altered in the Mike Flynn docket)
Asks to exclude allegations about the reliability of the DNS data or claims about Christopher Steele (see this post)

Durham wants to:

Admit witnesses’ contemporaneous notes of conversations with the FBI General Counsel
Admit emails referenced in the Indictment and other, similar emails (see this post)
Admit certain acts and statements (including the defendant’s February 2017 meeting with a government agency, his December 2017 Congressional testimony, and his former employer’s October 2018 statements to the media) as direct evidence or, alternatively, pursuant to Federal Rule of Evidence 404(b)
Exclude evidence and preclude argument concerning allegations of political bias on the part of the Special Counsel (addressed in this post)
Admit an October 31, 2016 tweet by the Clinton Campaign

I will link my discussions in serial fashion.

In John Durham’s bid to introduce notes from Bill Priestap and Trisha Anderson, he presented a color scan of Anderson’s notes [red annotation added]:

But he presented a black and white scan of Priestap’s notes [red annotation added]:

That’s important for two reasons. First, because blue sticky tabs were implicated in altered documents submitted in the Mike Flynn case. There was a blue sticky tab on another page of Priestap notes submitted in Flynn’s case.

There were what appear to be blue and red stickies visible on the original version of some Peter Strzok notes submitted in that case.

When the government ultimately confessed to adding dates (affirmatively misleading, in at least one case) to both that set of Strzok notes …

And some Andrew McCabe notes …

… The government claimed that the date added to some Andrew McCabe notes was added via a blue sticky — what sounds like the same sticky we saw in the Priestap notes.

In response to the Court and counsel’s questions, the government has learned that, during the review of the Strzok notes, FBI agents assigned to the EDMO review placed a single yellow sticky note on each page of the Strzok notes with estimated dates (the notes themselves are undated). Those two sticky notes were inadvertently not removed when the notes were scanned by FBI Headquarters, before they were forwarded to our office for production. The government has also confirmed with Mr. Goelman and can represent that the content of the notes was not otherwise altered.

Similarly, the government has learned that, at some point during the review of the McCabe notes, someone placed a blue “flag” with clear adhesive to the McCabe notes with an estimated date (the notes themselves are also undated). Again, the flag was inadvertently not removed when the notes were scanned by FBI Headquarters, before they were forwarded to our office for production. Again, the content of the notes was not otherwise altered. [my emphasis]

If that’s right, then whoever altered the McCabe notes altered them with the same kind of blue sticky note that appears on the Priestap notes that Durham wants to submit at trial.

Whether that date was added via blue sticky note has never been publicly tested. Rather than submitting unaltered versions of McCabe’s notes in the Flynn docket, DOJ — metadata suggests that Jocelyn Ballantine did this — simply digitally removed the date and a footer, effectively submitting a realtered exhibit in place of an altered one. So one cannot rule out that that date was written right onto the notes themselves. McCabe was being specifically prevented by DOJ from reviewing his original notes in the period, not even to prepare for Senate Judiciary Committee testimony, so he hasn’t been able to test that either.

That, by itself, suggests some of the alterations that were an issue in the Flynn docket were altered before they were shared with Jeffrey Jensen.

But that’s all the more interesting given a detail that Michael Sussmann included in his bid to exclude these notes. In Priestap’s grand jury testimony in this case, he testified he didn’t know why he wrote the “no specific client” comment on a slant, or why those notes were, “perhaps darker or thicker than some of the other notes.”

The Indictment characterizes the Priestap Notes as a contemporaneous record of Mr. Priestap’s conversation with Mr. Baker. See id. But beyond offering that they “looked like his writing and organizational style,” Mem. of Special Counsel’s June 2, 2021 Interview of E.W. Priestap, SCO-3500U-018701, at -01, Mr. Priestap said he “[doesn’t] remember why [he] wrote them down and who gave [him] the information,” E.W. Priestap’s June 3, 2021 Grand Jury Test., SCO-3500U-018746, at -98. Not only that, but Mr. Priestap “[does] not recall actually writing these notes,” id. at SCO-3500U-018815, nor can he confirm that the notes actually reflect any conversation he had with Mr. Baker, as opposed to a conversation he had with someone else, id. Indeed, Mr. Priestap “advised he did not remember Baker conveying to him the information about Sussmann,” Mem. of Special Counsel’s June 2, 2021 Interview of E.W. Priestap at SCO-3500U 018702, and was “not certain whether th[e] conversation reflected in the notes . . . was with Mr. Baker or maybe with someone else,” E.W. Priestap’s June 3, 2021 Grand Jury Test. at SCO3500U-018815. Mr. Priestap also has “[n]o idea” why the phrase “said not doing this for any client”—written diagonally to the side of the main body of the notes—was written at all, and could offer no explanation for why those words were “perhaps darker or thicker than some of the other notes.” Id. at SCO-3500U-018816.

The date in the January 24, 2017 Priestap notes is even more irregular — at cross-direction from his other notes on the page, and with uneven ink — and I have always wondered whether that date was added too.

And lo and behold, the Anderson notes also appear to have a sticky note right by the date (as annotated), albeit apparently a red one, though some of the tags on the Strzok notes were of a similar color. She also found aspects of her notes surprising.

Ms. Anderson’s notes (the “Anderson Notes”) include, on top, “Deputies Mtg. 9/19/16,” and then, after a redaction and under a second heading reading “9/19[/]16,” go on to state: “Sussman[n] Mtg w/ Baker” and “No specific client but group of cyber academics talked w/ him abt research,” followed by the phrase, “article this Friday – NYT/WaPo/WSJ.” Anderson Notes at SCO-3500U-000018. The relevant sentence fragment contains no subject revealing who had “[n]o specific client,” nor any other context for that phrase. Ms. Anderson, who was first asked about these notes by the Special Counsel over five years after they were written, has no meaningful memory of the notes or their context: she has only a “vague recollection” of discussing this topic with Mr. Baker and cannot “recall specifics.” Mem. of Special Counsel’s Jan. 5, 2022 Interview of T. Anderson, SCO-3500U-000087, at -88, -96. When shown the notes, Ms. Anderson stated that she had been “surprised” to learn about the “no specific client” phrase, and she “d[id] not now recall hearing from Baker his use” of that phrase; she could only assume that she got that phrase from Mr. Baker “because her notes reflect[ed] it.” Id. at -88.

Durham has only provided a partial scan of theses notes, hiding that the date, 9/19/16, appears earlier on the page, describing a different kind of meeting. That’s consistent with what the added date and the redaction on the McCabe notes did: It served to suggest that McCabe briefed the Flynn case to SSCI the day after Jim Comey was fired. Here, the September 19 date that appears next to the sticky is necessary for Durham’s case to claim that Anderson took these notes the same day of the meeting and not some time after that.

But why would Anderson date her notes twice?

According to a discovery filing in this case, Sussmann has reviewed redacted versions of the originals of the Priestap notes, which were still in the notebook Priestap took them in.

On October 13, 2021, the defense requested, among other things, to inspect the original notes that a former FBI Assistant Director of Counterintelligence took reflecting the defendant’s alleged false statement. The original notes were contained in a hard-bound notebook located at FBI Headquarters and contained extremely sensitive and highly classified information on a variety of topics and unrelated investigative matters. The Government immediately agreed to make the original notebook available to the defense in redacted form, and the defense conducted its review of the notebook on October 20, 2021.

But to test why all these notes have post-it notes on them and why the dates are so unreliable (and affirmatively misleading, in the case of the alteration in the January 5, 2017 Strzok notes), Sussmann would need to review all the notes together, probably with the assistance of the original authors.

It’s still not clear who altered the notes submitted in the Flynn docket, the extent of those alterations, or why the government is submitting exhibits with investigative stickies on them as evidence at trial. DOJ’s filing in the Flynn case blamed the misleading date on the Strzok notes on an FBI agent associated with the Jeffrey Jensen investigation (which would suggest that alteration post-dated Durham’s access to it), but it did not say who altered the McCabe notes.

But by showing that the blue sticky notes existed in Durham’s copy of the exhibits, Durham makes it clear some of the alterations exhibited in the Flynn docket happened before he shared the documents with Jensen’s investigation, if that’s how the notes got shared around.

The misleading date added to the Strzok notes ultimately was part of a packaged Trump attack on Joe Biden at the first debate, one that Sidney Powell, who has since been sanctioned for making fraudulent claims in an attempt to keep Trump in office, appears to have had a part in.

President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.

Given that even Chuck Grassley recognized the alteration added to the Strzok notes was incorrect, it’s hard to believe that was an innocent mistake.

And yet, 18 months later, DOJ is still trying to submit notes with all these investigative sticky notes as exhibits, without explaining why or how they appeared there.

And Durham’s choice to present the Priestap notes — with what appear to be the same blue sticky as appeared on his earlier notes, as well was the the blue sticky described to have been used to alter the McCabe notes — in black-and-white suggests he may know that’s a problem.

Jeffrey Rosen Targeted Project Veritas’ Office Manager Long before Merrick Garland Targeted James O’Keefe

March 24, 2022/42 Comments/in 2020 Presidential Election, emptywheel /by emptywheel

According to a recent NYT story, Project Veritas paid $50,000 to a former Mike Pence lawyer and House staffer, Mark Paoletta, to get members of Congress to push back against the criminal investigation into the rat-fucking organization.

After the criminal investigation into Project Veritas became public last fall, a prominent Republican lawyer who was lobbying on behalf of the organization and Mr. O’Keefe briefed a group of congressional Republicans on the case, to urge them to try to persuade the Justice Department to back off the investigation because the group did nothing wrong, according to a person briefed on the matter.

[snip]

Lobbying filings show that Mr. Paoletta was paid $50,000 during the last two months of last year to inform members of Congress about the F.B.I. raid on Mr. O’Keefe.

That’s really telling. After Project Veritas won a fight to get a Special Master appointed to review records seized in a raid on James O’Keefe and others last year, they balked at DOJ’s effort to make them foot the entire bill, telling a tale about their gritty “upstart journalism.”

The government argues that an upstart journalism organization with a current annual budget that recently hovers around $22 million is better suited to fund Special Master proceedings than a goliath arm of the U.S. government featuring a long-standing bloated budget, currently at $31.1 billion.2 The government’s demand that a press entity bear considerable financial burdens to defend against the government’s unconstitutional attack on a free press is corrosive to the First Amendment. The exercise of First Amendment rights is a guaranteed right, not a luxury subject to taxation at the government’s whim. Imposing daunting costs during the pendency of an investigation meant to resolve important First Amendment questions inflicts its own kind of abridgement. When exorbitant costs may be levied against the media simply for acting in accord with settled First Amendment precedent, the process becomes the punishment.

[snip]

For Project Veritas, an upstart journalism organization, each dollar spent on Special Master fees and expenses is a dollar not spent publishing news stories or investigating leads.

They won that fight and thus far, Special Master Barbara Jones has billed almost $40,000, which will be split 50-50.

It turns out, though, that PV’s claim that they would spend every cent saved on Special Master fees on what they euphemistically call “news stories,” was false. Instead, they were spending it to get Chuck Grassley (whose former top staffer Barbara Ledeen used to have close ties to PV), Jim Jordan, and other of the most corrupt Republicans to write letters to Merrick Garland complaining about “brazen and inconsistent standards” and “partisan or other improper motive.” (As we’ll see, it turns out they should have been complaining to Jeffrey Rosen.)

What’s interesting is those letters that Barbara Ledeen’s former boss and Jim Jordan and Ron Johnson signed all suggest they took their understanding of PV’s actions entirely from the public record. They cite news articles.

Congress was told that Don Jr was involved before the stupidest Republicans wrote to complain

Not so, as reported by the NYT. Paoletta apparently knew — and shared — details that had not yet been reported by the press. Paoletta knew of a September 6, 2020 fundraiser held by Elizabeth Fago and attended by Don Jr where Ashley Biden’s diary — allegedly stolen — was passed around.

In August, Ms. Harris reached out to Robert Kurlander, a friend who had been sentenced to 40 months in prison in the 1990s on a federal fraud charge and had expressed anti-Biden sentiments online, to say she had found the diary. The two believed they could sell it, allowing Ms. Harris to help pay for the lawyers representing her in the custody dispute.

New details from interviews and documents have further fleshed out what happened next. Mr. Kurlander contacted Elizabeth Fago, the Trump donor who would host the fund-raiser attended by Donald Trump Jr. When first told of the diary, Ms. Fago said she thought it would help Mr. Trump’s chances of winning the election, according to two people familiar with the matter.

Richard G. Lubin, a lawyer for Ms. Fago, declined to comment.

On Sept. 3, Ms. Fago’s daughter alerted Project Veritas about the diary through its tip line.

Three days later, Ms. Harris and Mr. Kurlander — with the diary in hand — attended the fund-raiser attended by Donald Trump Jr. at Ms. Fago’s house in Jupiter, Fla., to see whether the president’s re-election campaign might be interested in it. While there, Mr. Kurlander showed others the diary. It is unclear who saw it.

It appears that Paoletta had originally been told — and told members of Congress — that Don Jr advocated calling the FBI, only to follow up to express uncertainty about that point.

The lawyer, Mark Paoletta, said that upon learning about the diary at the fund-raiser, Donald Trump Jr. showed no interest in it and said that whoever was in possession of it should report it to the F.B.I. But shortly thereafter Mr. Paoletta, who had served as Vice President Mike Pence’s top lawyer in the White House, called back the congressional Republicans to say he was unsure whether the account about Donald Trump Jr.’s reaction was accurate.

We know from past history, Don Jr doesn’t call the FBI when offered dirt on an opponent. Instead, he says “If it’s what you say, I love it, especially closer to the election.”

Project Veritas was willing to pay $50,000 to tell members of Congress that this crime might impact powerful fundraisers (Fago was named on the PV warrants) and the former President’s son, but didn’t want to foot the full bill for a Special Master.

SDNY always gets emails before they do an overt search

The fact that PV told members of Congress that this involved the former President’s son explains why PV is so pissed upon discovering what has been obvious to me from the start: That before obtaining warrants to seize James O’Keefe’s phones, DOJ had first obtained emails that provided the evidence to get the warrants for his phones.

The Government disclosed many of its covert investigative steps in the ex parte context of the Affidavit, including each email search warrant it had obtained pursuant to the SCA in this investigation.

This is precisely what SDNY did with Michael Cohen and Rudy Giuliani, and it’s what Magistrate Judge Sarah Cave was talking about when she referred to the “considerable detail” in the affidavit.

Third, the Court has reviewed the Materials in camera and observes that they contain considerable detail about individuals who may have already provided information to the Government—voluntarily or involuntarily—such that unsealing of the Materials “could subject [them] to witness tampering, harassment, or retaliation.”

PV revealed that in a motion asking Judge Analisa Torres to claw back this information.

The government apparently disdains the free press, and candor to the Court and opposing counsel. In light of the government’s violations of Project Veritas’s First Amendment, journalistic, and attorney-client privileges, as well as the government’s attendant failure to disclose these matters before or during the litigation of our motion for appointment of a Special Master, Project Veritas requests that this Court, pursuant to its supervisory powers, inherent authority, and Fed. R. Crim. P. 41(g), enter an Order requiring the government to:

(1) immediately halt access, review, and investigative use of Project Veritas materials that the government obtained from Microsoft (cf. November 12, 2021 Order acknowledging pause in government extraction and review of James O’Keefe’s mobile devices);

(2) inform this Court and counsel whether the government used a filter team to conduct a review of the data it seized from Microsoft on the basis of both attorney-client and journalistic privileges;

(3) inform this Court and counsel of the identities of any prosecutors, agents, or other members of the investigative team who have reviewed any data seized from Microsoft, what data they reviewed, and when they reviewed it; and

(4) disclose to the Court and counsel the identity of any other third party to which the government issued demands for Project Veritas data under the Electronic Communications Privacy Act (“ECPA”) with or without a non-disclosure order.

This interim relief is necessary to avoid compounding the harm to Project Veritas caused by the government’s violations of law and principles of candor and to enable Project Veritas to seek appropriate further relief.

I’ve put the dates of these warrants below; those dates and targets totally undermine everything PV has been complaining about.

PV has been complaining about “journalists” when DOJ first found evidence of a crime from their office manager

That’s because the first person targeted at PV was their “human resources” manager; that may be a reference to Jennifer Kiyak, who is named in the warrant targeting O’Keefe but listed on Project Veritas Exposed as PV’s Office Manager.

An office manager would have been the one to arrange payment of $40,000, and by getting her emails and — given that the FBI first targeted her in a subscriber record, may have been traced backwards from contacts with Ms. Biden — DOJ probably obtained plenty of evidence that the “journalists” had done far more than journalism.

Moreover, the first warrant to get “journalists'” emails was obtained while Jeffrey Rosen was Acting Attorney General, and all but one of these warrants for email (the one against O’Keefe) were obtained before Merrick Garland was confirmed. All of these email warrants were obtained before Garland imposed his new media guidelines, guidelines that Billy Barr’s DOJ never adhered to.

In other words, PV has been complaining for months that Merrick Garland targeted “journalists” when in fact they should be complaining that Jeffrey Rosen targeted someone who would, in no way, under any administration, be covered by media guidelines.

DOJ tells PV to hold their complaints until they are indicted

DOJ’s response to PV’s wails (which I wrote up in more detail here) is genuinely hysterical. They say, over and over, that PV can wait until they’re indicted to challenge these warrants.

Movants can raise these issues if there is an indictment filed charging them in connection with the investigation,

[snip]

The materials referenced by the Movants were obtained pursuant to duly authorized legal process that are not subject to challenge by the Movants in this pre-indictment stage.

[snip]

Second, the Movants seek pre-indictment discovery regarding the process used to review the materials referenced by the Movants, the identities of those who participated in that process, and the identities of third parties on which other legal process may have been served in the course of the investigation.

[snip]

To the extent the Movants may potentially be entitled at some point to the disclosures that they seek, any such entitlement would only be triggered, if at all, by the filing of an indictment charging them in connection with the investigation, and not before.2 In the event of a criminal proceeding, as Judge Oetken noted, they would have the opportunity to litigate any privilege or suppression issues, but they cannot do so during the pre-indictment phase of an ongoing grand jury investigation.

They acknowledge that PV would love to know who or what else has been investigated.

Of course, the Movants, like any subjects of a federal grand jury investigation, would like to know about every investigative step the Government is taking during the course of a criminal investigation, but that is not the law, for good reason.

No doubt so would Don Jr.

It also suggested there are other aspects of this investigation that DOJ is keeping secret.

The Government refrained from publicly disclosing details of the investigation, and continues to do so, for the same reasons that this Court denied production to the Movants of the affidavit (the “Affidavit”) submitted in support of the issuance of the search warrant dated November 5, 2021 that is the focus of this Part I matter and that Judge Cave ruled should remain sealed: to protect the ongoing grand jury investigation.

Keep in mind, there are necessarily other warrants out there that list other crimes, such as ones involving Harris and Kurlander that would name theft itself. In fact, the first order targeting PV mentions 18 USC 873 — blackmail.

Which means we can’t rule out that the nomination of Fago to the National Cancer Advisory Board a month after the election might be under investigation too.

These events are covered by three SDNY dockets: 21-mc-813 for James O’Keefe, 21-mc-819 for Eric Cochran, and 21-mc-825 for Spencer Meads.

2020

June: Ashley Biden moves to Philadelphia.

July: Aimee Harris moves into space formerly occupied by Ms. Biden.

August: Harris reaches out to fraudster Robert Kurlander, who contacts Elizabeth Fago.

September 3: Stephanie Walczak offers diary to PV.

September 6: Diary is shared at a fundraiser attended by Jr.

Mid-September: Kurlander and Harris fly to NY with the diary. Spencer Meads travels to Florida and Harris shows more of Ms. Biden’s belongings.

Early October: A PV operative calls Ms. Biden and claims he wants to return the diary; PV takes her agreement as confirmation the diary is hers.

October 12: O’Keefe sends email, not mentioning Ms. Biden by name (but clearly referring to her) explaining his decision not to publish “Sting Ray” Story.

October 16: PV calls Joe Biden to extort an interview.

Late October: PV pays $40,000 for the diary.

October 25: National File publishes pages from Ashely Biden’s diary, linking parallel New York Post campaign targeting Hunter. It explains the provenance of the diary this way:

National File also knows the reported precise location of the physical diary, and has been told by a whistleblower that there exists an audio recording of Ashley Biden admitting this is her diary.

[snip]

National File obtained this document from a whistleblower who was concerned the media organization that employs him would not publish this potential critical story in the final 10 days before the 2020 presidential election. National File’s whistleblower also has a recording of Ashley Biden admitting the diary is hers, and employed a handwriting expert who verified the pages were all written by Ashley. National File has in its posession a recording of this whistleblower detailing the work his media outlet did in preparation of releasing these documents. In the recording, the whistleblower explains that the media organization he works for chose not to release the documents after receiving pressure from a competing media organization.

November 3: PV provides the diary to local law enforcement in FL.

November 22: DOJ uses subpoena for subscriber information of PV’s Human Resources Manager.

November 24: DOJ obtains 2703(d) order for HR manager’s email headers from 9/1/2020 to present.

December 8: Fago appointed to National Cancer Advisory Board.

2021

January 14: DOJ obtains warrant for emails of Eric Cochran, Spencer Meads, and HR manager from 1/1/20 through present.

January 26: DOJ obtains warrant for emails from another PV “journalist” from 1/1/20 through present.

March 5: DOJ obtains warrant for emails of three other PV “journalists” from 1/1/20 through 12/1/20.

March 9: DOJ obtains email headers for additional PV “journalist” from 9/1/20 through 12/1/20.

April 9: DOJ obtains warrant for O’Keefe’s emails from 9/1/20 through 12/1/20.

October 26: Paul Calli call DOJ, asks for AUSA Mitzi Steiner, and asked to speak about the PV investigation; Steiner asked how Calli had obtained her name, what else he had obtained, and declined to speak with Calli.

October 27: Lawyers for Project Veritas inform the DOJ that they will accept service for a subpoena relating to the investigation

November 3, 3:49 PM: Search warrants for Eric Cochran and Spencer Meads approved.

November 4, AM: FBI executes search warrants on former PV employees, Cochran and Spencer Meads.

November 4: PV lawyers accept service of subpoena.

November 4, one hour after the search: Mike Schmidt reaches out to Cochran and O’Keefe for comment about the investigation.

November 5, 11:18 AM: Warrant for O’Keefe authorized

November 5: NYT publishes story on investigation including language that PV would later baseless claim had to have come from the FBI.

November 6: FBI executes a search warrant on James O’Keefe

November 6: Schmidt contacts O’Keefe for comment.

November 6: Lawyers for Project Veritas ask the FBI to sequester material from the phone.

November 7: DOJ declines PV’s request and states the FBI has complied with all media guidelines.

November 8, 6:11PM: DOJ emails PV and tells them the extraction may start as soon as the next day.

November 8: After PV says it’ll file a legal challenge, FBI says it’ll only stop extraction after PV files such a challenge.

November 10: On behalf of PV, Calli Law moves to appoint a Special Master.

November 11, 12:51-12:53AM: Calli asks for confirmation that DOJ stopped extraction and review on O’Keefe’s phone on November 8.

November 11, 7:57AM: DOJ responds that the substantive review of O’Keefe’s phone was paused upon filing of motion on November 10.

November 11; 2:13PM: Judge Analisa Torres sets initial briefing schedule; in response to Torres order, DOJ stops extraction of O’Keefe phone.

November 12: In response to DOJ request, Torres extends briefing schedule.

November 12: Greenberg Traurig lawyer Adam Hoffinger, representing Eric Cochran, asks for Special Master to apply to materials seized from him, as well.

November 12: Letter signed by FL attorney Brian Dickerson but apparently docketed by NY lawyer Eric Franz asks for Special Master to apply to Spencer Meads

November 12, 3:49PM: Calli asks for clarification on review and extraction.

November 12, 3:59PM: DOJ responds that, “upon the filing of your motion, the Government paused the review of all material obtained from the search of your client’s residence.”

November 14: Calli submits clarification letter regarding extraction and review.

November 15: Torres sets schedule in Cochran docket.

November 15: DOJ requests permission to reply to PV on November 19.

November 15: Calli requests inquiry into government leaks to NYT.

November 16: Torres grants permission to respond on November 19.

November 16: Ian H. Marcus Amelkin asks to delete initials of PV source, A.H., from docket.

November 17: Torres denies Amelkin request without prejudice.

November 17: Cochran motion to appoint Special Master.

November 18: For Meads, Dickerson formally moves for Special Master (and also complains that FBI seized dated devices).

November 19: Calli requests extension on response deadline for PV subpoena.

November 19: Government files opposition to request for Special Master and inquiry into purported leaks.

November 19: DOJ requests permission to respond to motion for extension on subpoena. Torres grants request.

November 21: DOJ opposition to extend subpoena deadline.

November 21: Government motion to oppose unsealing affidavits.

November 22: Torres denies motion for extension on subpoena.

November 22: PV reply to government opposition to Special Master.

November 23: Torres denies motion (including from RCFP) to unseal affidavits.

November 23: Cochran reply to government opposition to unseal affidavits.

November 24: Meads reply to refusal to unseal affidavits, including letters from House and Senate complaining to DOJ.

Ten Things TV Lawyers Can Do Rather than Whinging about Merrick Garland

December 3, 2021/146 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

I continue to have little patience for the people–many of them paid to expound as lawyers on TV–who spend their time whinging that Merrick Garland is not moving quickly enough to hold Trump accountable rather than spending their time doing other more productive things to protect democracy.

I’m not aware that any of these people has tracked the January 6 investigation closely enough to name those one or two degrees away from the former President who have been charged or are clearly subjects of investigation. Similarly, I’ve seen none do reporting on the current status of Rudy Giuliani’s phones, which after a Special Master review will release a bunch of information to prosecutors to use under any warrant that DOJ might have. Indeed, many of the same people complain that Trump has not been accountable for his Ukraine extortion, without recognizing that any Ukraine charges for Trump would almost certainly have to go through that Rudy investigation. The approval for the search on Rudy’s phones may have been among the first decisions Lisa Monaco made as Deputy Attorney General.

It’s not so much that I’m certain DOJ would prosecute Trump for his serial attempts to overthrow democracy. There are tea leaves that DOJ could get there via a combination of working up from pawns who stormed the Capitol and down from rooks referred from the January 6 Commission. But I’m more exasperated with the claims that there were crimes wrapped with a bow (such as Trump’s extortion of Ukraine) that Garland’s DOJ could have charged on March 11, when he was sworn in. Even the Tom Barrack prosecution, a Mueller referral which reportedly was all set to indict in July 2020, took six months after Biden’s inauguration before it was indicted. The January 6 investigation started less than eleven months ago; eleven months into the Russian investigation, Coffee Boy George Papadopoulos had not yet been arrested and he was still months away from pleading guilty, on a simple false statements charge. We have no idea how much deliberate damage Billy Barr did to other ongoing investigations arising out of the Mueller investigation, but his public actions in the Mike Flynn, Roger Stone, and Paul Manafort cases suggests it is likely considerable. As for the January 6 investigation, as I’ve noted, it took nine months from the time FBI learned that a Capitol Police Officer had warned Jacob Hiles to delete his Facebook posts until the time DOJ indicted Michael Riley on two counts of obstruction. To imagine that DOJ would have already indicted Trump on anything he might be hypothetically under investigation at this point, particularly relating to January 6, is just denial about how long investigations take, even assuming the subject were not the former President with abundant access to free or RNC-provided legal representation.

It’s not that I don’t understand the gravity of the threat. I absolutely share the panic of those who believe that if something doesn’t happen by midterms, Republicans will take over the House and shut every last bit of accountability down. I agree the threat to democracy is grave.

But there is no rule that permits DOJ to skip investigative steps and due process simply because people have invested in DOJ as the last bulwark of democracy, or because the target is the greatest threat to democracy America has faced since the Civil War. DOJ investigations take time. And that is one reason why, if people are hoping some damning indictment will save our democracy, they’re investing their hopes in the wrong place, because an investigation into Trump simply will not be rolled out that quickly. Even if Trump were indicted by mid-terms, the Republicans have invested so much energy into delegitimizing rule of law it’s not clear it would sway Fox viewers or even independent voters.

I can’t tell you whether DOJ will indict Trump. I can tell you that if they do, it will not come in time to be the one thing that saves democracy.

And so, because I believe the panicked hand-wringing is about the least productive way to save democracy, I made a list. Here are ten way that TV lawyers could better spend their time than whinging that Merrick Garland hasn’t indicted Donald Trump yet:

Counter the propaganda effort to treat the Jan 6 defendants as martyrs.
Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years.
Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past.
Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect.
Emphasize the prosecutions/charges/investigations that have or are occurring.
Describe the damage done by Trump’s pardons.
Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law.
Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary
Explain how shoddy John Durham’s indictments are.
Focus on the legal threats to democracy in the states.

Counter the propaganda effort to treat the Jan 6 defendants as martyrs

Whether or not Trump is ever charged with crimes related to January 6, the right wing noise machine has already kicked into gear trying to make it harder to prosecute other culprits for the January 6 riot. They’ve done so by falsely claiming:

The event was just a protest like the protests of Brett Kavanaugh’s confirmation, a claim DOJ already debunked, in part by showing that the Kavanaugh protestors who briefly halted his confirmation hearing had been legally admitted.
They’re being treated more harshly than those who used violence at BLM or Portland protests. DOJ has submitted multiple filings showing that such claims are based on cherry-picked data that ignore the state charges many of these defendants face, the better quality of evidence against Jan 6ers (in part because they bragged about their actions on social media), and the more heinous goal of the protest involved.
Large numbers of non-violent January 6 are being held in pretrial detention. In reality, the overwhelming majority of those detained were charged either in a militia conspiracy or for assaulting cops. The exceptions to this rule are generally people (like Brandon Fellows or Thomas Robertson) who violated pretrial release conditions. Additionally, a good number of those accused of assaulting cops have been released.
January 6 defendants are subjected to especially onerous treatment in jail. Many of the conditions they’re complaining about are COVID restrictions imposed on all detainees (though often more restrictive for those who, like a lot of January 6 defendants, choose not to get vaccinated). And in an inspection triggered by January 6 defendant Christopher Worrell’s complaints, the Marshals determined that the other part of the DC jail violated Federal standards, though the part in which the Jan 6ers are held did not.
January 6 defendants are just patriots trying to save the country. In reality, of course, these people were attempting to invalidate the legal votes of 81 million Americans.

Again, all these claims are easily shown to be false. But far too many people with a platform are allowing them to go unanswered, instead complaining that DOJ is not doing enough to defend the rule of law. This sustained effort to turn the Jan 6ers into martyrs will achieve real hold unless it is systematically countered.

Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years

As noted above, after Proud Boy assault defendant Worrell complained about the treatment he received in DC jail, the Marshals conducted a snap inspection. They discovered that the older part of the DC jail, one housing other detainees but not Jan 6ers, did not meet Federal standards and have started transferring those detainees to a prison in Pennsylvania.

What has gotten far less attention is that problems with the DC jail have been known for decades. Even though the problems occasionally have gotten passing attention, in general it has been allowed to remain in the inadequate condition the Marshals purportedly discovered anew because a white person complained.

This is an example, then, when a white person has claimed himself to be the victim when, in fact, it’s yet another example of how brown and black people have less access to justice than similarly situated white people.

This development deserves focused attention, most of all because it is unjust. But such attention will flip the script that Jan 6ers are using in an attempt to get sympathy from those who don’t understand the truth.

Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past

There’s a lot of impatience that DOJ hasn’t simply charged January 6 defendants with sedition or insurrection.

Thus far, DOJ has chosen to use a less inflammatory and more flexible statute, obstruction, instead. Obstruction comes with enhancements — for threatening violence or especially obstructive behavior — that DOJ has used to tailor sentencing recommendations.

The wisdom of this approach will soon be tested, as several DC Judges weigh challenges to the application of the statute. If the application is overturned, it’s unclear whether DOJ will charge something else, like sedition, instead.

But DOJ probably chose their current approach for very good reason: because sedition is harder to prove than obstruction, and in the past, white terrorists have successfully beaten such charges. That’s true for a lot of reasons, partly because the absence of a material support statute makes association with a right wing terrorist group harder to prosecute.

A cable personality whom I have great respect for — NBC’s Barb McQuade — knows this as well as anyone, as she was US Attorney when a sedition conspiracy case against the Hutaree collapsed. In that case, DOJ had trouble proving that defendants wanted to overthrow the US government, the kind of evidentiary claim that DOJ will face in January 6 trials, even as currently charged.

There are real challenges to prosecuting white terrorism. Some education on this point would alleviate some of the impatience about the charging decisions DOJ has made.

Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect

In the period between the time Steve Bannon was referred to DOJ for contempt and the time he was charged, a number of commentators used the delay to explain what it takes to get an indictment (against a high profile political figure) that stands a chance of work; one good example is this column by Joyce Vance.

There have been and are numerous examples of similar delays — the Tom Barrack indictment and the Rudy Giuliani Special Master review are two — that offer similar teaching opportunities about the process and protections involved in indicting someone.

Due process takes time. And yet in an era of instant gratification, few people understand why that’s the case. If we’re going to defend due process even while trying to defend our democracy, more education about what due process involves would temper some of the panic.

Emphasize the prosecutions/charges/investigations against Trump that have or are occurring

Given the din calling for prosecution of Donald Trump, you’d think none of his associates had been prosecuted. As Teri Kanefield noted the other day, it would be far better if, instead of saying Trump had suffered no consequences for his actions, there was some focus instead on where he had.

Trump’s business is currently under indictment with multiple investigations into it ongoing. His charity was shut down and fined for self-dealing. Trump’s Inauguration Committee will be civilly tried for paying above market rates to Trump Organization.

His Campaign Manager, his National Security Advisor, his Coffee Boy, his Rat-Fucker, and one of his personal lawyers were found guilty of lying to cover up what really happened with Russia in 2016. Several of these men (as well as a top RNC donor) also admitted they were secretly working for frenemy countries, including (in Mike Flynn’s case), while receiving classified briefings as Trump’s top national security aide. Trump’s biggest campaign donor, Tom Barrack, is being prosecuted for using the access he purchased to Trump to do the bidding of the Emirates. Another of Trump’s personal lawyers, Rudy Giuliani, is under investigation for the same crime, secretly working for another country while claiming to represent the interests of the President of the United States.

The sheer scale of this is especially breathtaking when you consider the projection the GOP has — successfully — focused on Hunter Biden for similar crimes. Even with years of effort and help from Russia, the GOP has not yet been able to prove that the President’s son’s influence peddling or potential tax accounting violated the law. Yet the GOP continues to focus on him relentlessly, even as the long list of Republicans who admit to the same crime continues to grow.

Trump has already proven to be the most corrupt president in some time, possibly ever. And instead of relentless messaging about that, Democrats are complaining about Merrick Garland.

Describe the damage done by Trump’s pardons

One reason why it’s hard to focus on all those criminal prosecutions is because Trump pardoned his way out of it. With the exception of Michael Cohen and Rick Gates, all the people who lied to cover up his Russian ties were pardoned, as was Steve Bannon and others who personally benefitted Trump.

Perhaps because these pardons happened in the wake of January 6, Trump avoided some of the shame he might otherwise have experienced for these pardons. But for several reasons, there should be renewed attention to them.

That’s true, for starters, because Trump’s pardons put the entire country at risk. By pardoning Eddie Gallagher for war crimes, for example, the US risks being treated as a human rights abuser by international bodies. The military faces additional disciplinary challenges. And those who cooperated against Gallagher effectively paid a real cost for cooperating against him only to see him escape consequences.

Paul Manafort’s pardon is another one that deserves renewed attention. That’s true not just because the pardon ended up halting the forfeiture that otherwise would have paid for the Mueller investigation, the cost of which right wingers claimed to care about. It’s true because Trump has basically dismissed the import of industrial scale tax cheating (even while right wingers insinuate that Hunter Biden might have made one error on his taxes). And finally, it’s true because Trump made an affirmative choice that a guy who facilitated Russia’s effort to undermine democracy in 2016, sharing information directly with someone deemed to be a Russian spy, should not be punished for his actions.

Finally, there should be renewed attention on what Trump got for his pardons. Did Steve Bannon and Mike Flynn pay central roles in January 6 in exchange for a pardon?

The US needs some means to prohibit such self-serving pardons like Trump pursued. But in the meantime, there needs to be some effort to shame Trump for relying on such bribes to stay out of prison himself.

Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law

Donald Trump pardoned Steve Bannon for defrauding a bunch of Trump loyalists. According to very recent reporting, Sidney Powell is under investigation (and being abandoned by her former allies) on suspicion she defrauded the thousands of Trump supporters who sent money to support her election conspiracy theories.

Meanwhile, the Republican Party continues to dump money into protecting Trump for his own crimes, even as Republicans lose races that could have benefitted from the money.

However, some RNC members and donors accused the party of running afoul of its own neutrality rules and misplacing its priorities. Some of these same officials who spoke to CNN also questioned why the party would foot the legal bills of a self-professed billionaire who was sitting on a $102 million war chest as recently as July and has previously used his various political committees to cover legal costs. According to FEC filings from August, the former President’s Make America Great Again committee has paid Jones Day more than $37,000 since the beginning of the year, while his Make America Great

Again super PAC has paid a combined $7.8 million to attorneys handling his lawsuits related to the 2020 election.

“This is not normal. Nothing about this is normal, especially since he’s not only a former President but a billionaire,” said a former top RNC official.

“What does any of this have to do with assisting Republicans in 2022 or preparing for the 2024 primary?” the official added.

Bill Palatucci, a national committeeman from New Jersey, said the fact that the RNC made the payments to Trump’s attorneys in October was particularly frustrating given his own plea to party officials that same month for additional resources as the New Jersey GOP sought to push Republican Jack Ciattarelli over the finish line in his challenge to incumbent Democratic Gov. Phil Murphy.

“We sure as heck could have used $121,000,” Palatucci told CNN.

Loyal Trumpsters are the victim of one after another grift, and that should be emphasized to make it clear who is really taking advantage of them.

And one after another former Trump loyalist get themselves in their own legal trouble. One of the messages Michael Cohen tried to share in his testimony before going to prison was that “if [other Republicans] follow blindly, like I have,” they will end up like he did, going to prison. Hundreds of January 6 defendants — some of whom imagined they, too, might benefit from Trump’s clemency (they still might, but they’ll have to wait) — are learning Cohen’s lesson the hard way.

Kleptocracy only benefits those at the top. And yet Trump’s supporters continue to aggressively pursue policies that will make the US more of a kleptocracy.

It’s fairly easy to demonstrate the damage degrading rule of law in exchange for a kleptocracy is. Except average people aren’t going to understand that unless high profile experts make that case.

Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary

The Project Veritas scandal remains obscure and may never amount to charges against PV itself. Yet even as it has become clear that DOJ is investigating theft, key Republicans Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson are trying to shut down the investigation into that theft. Chuck Grassley’s efforts to do so are particularly noxious given that a long-term staffer of his, Barbara Ledeen, is a sometime co-conspirator of Project Veritas.

Republicans have undermined legitimate investigations into Trump, over and over, with little pushback from the press. This is an example where it would seem especially easy to inflict a political cost (especially since Grassley is up for re-election next year).

It would be far more useful, in defending rule of law, to impose political costs on undermining the investigations that commentators are demanding from DOJ than it is to complain (incorrectly) that such investigations aren’t happening. Merrick Garland (however imperfect) is not the enemy of rule of law here, Jim Jordan is.

Explain how shoddy John Durham’s indictments are

One of the complaints that David Rothkopf made in the column that kicked off my latest bout of impatience with the hand-wringing about Garland complained that Garland “is letting” Durham charge those who raise concerns about Trump’s ties to Russia, even while (Rothkopf assumes) ignoring Trump’s own efforts to obstruct the investigation.

We have seen that Garland is letting the highly politicized investigation of special prosecutor John Durham into the conduct of the Trump-Russia investigation continue (by continuing its funding). We therefore have the real prospect that those who sought to look into the Trump-Russia ties that both Mueller and Congressional investigations have demonstrated were real, unprecedented and dangerous might be prosecuted while those who actively sought the help of a foreign enemy to win an election will not be.

As I have noted, both of Durham’s indictments have been shoddy work, hanging charges on Twitter rants and other hearsay evidence.

And while there was some worthwhile criticism of the Michael Sussmann indictment (perhaps because he’s well-connected in DC), Democrats seem to take Durham’s word that Igor Danchenko — and not Christopher Steele or Russian disinformation — is responsible for the flaws in the dossier. Perhaps as a result, the legal experts who could point out how ridiculous it is to rely on a Twitter feed for a key factual claim have remained silent.

With such silence, it is not (just) Garland who “is letting [Duram’s] highly politicized investigation” continue unchecked, but also the experts whose criticism could do something to rein him in.

If the investigation is politicized — and it is — then Durham is a far more appropriate target than Garland.

Focus on the legal threats to democracy in the states

There has, admittedly, been deserved focus on the ways Republicans are chipping away at democratic representation in the states.

But that is where the battle for democracy is being fought. And in most of the states where Trump attempted to undermine the 2020 election, there are follow-on legal issues, whether it’s the investigation into the suspected voting machine theft in Colorado (including into a former campaign manager for Lauren Boebert), a seemingly related investigation in Ohio, or the effort to criminalize efforts to ease voting by seniors during the pandemic in Wisconsin.

Republicans are trying to criminalize democracy. That makes it all the more important to ensure that the call for rule of law remains laser focused on the criminal efforts to cheat to win, if for no other reason than to shame those involved.

The threat to democracy is undoubtedly grave. Republicans are deploying their considerable propaganda effort into legitimizing that attack on democracy (even while suggesting Biden has committed the kind of graft that Trump engaged in non-stop, classic projection).

In the face of that unrelenting effort, expert commentators who support democracy have a choice: They can defend the rule of law and shame those who have denigrated it, or they can spend their time complaining about the guy trying, however imperfectly, to defend it himself. The latter will make Garland less able to do his job, the former will help him do whatever he is willing and able to do.

Update: Added “suspected” to the PV bullet.

The Viral Twitter Thread in Which Darrell Cooper Confesses Republicans Were Pawns of Russian Disinformation

July 13, 2021/37 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

For some reason, this Twitter thread by a guy named Darrell Cooper, purporting to explain why Trumpsters came to attack the US Capitol, went viral.

I resisted several requests to fact check it. Now, after it has gone even more viral (including on Tucker Carlson’s show), Phil Bump has done a good fact check. As Bump notes, while Cooper accurately lays out that Trump supporters have lost confidence in institutions, Cooper offers an explanation that relies on a series of false claims so as to put the blame on Democrats.

It is indisputably the case that Trump supporters accept claims about election fraud in part because of their diminished confidence in institutions such as government and the media. What is subject to dispute, though, is the cause of that lack of confidence. While Cooper suggests that it’s emergent, it isn’t. While Cooper argues that it’s a function of investigations into Trump, it’s actually a function of partisan responses — largely but not entirely on the right — driven by Trump himself. And, most important, what Cooper presents as the indisputable facts undergirding his argument are often misleading or false and a function of partisan defenses of Trump that are common in conservative media.

Bump then debunks Cooper’s claims that:

The FBI spied on the Trump campaign using evidence manufactured by the Clinton campaign
We now know that all involved knew it was fake from Day 1 (see: Brennan’s July 2016 memo, etc)
The Steele dossier was the sole evidence used to justify spying on the Trump campaign
The entire Russian investigation stemmed from the Page investigation and not George Papadopoulos and Paul Manafort
Protests planned in case Trump overturned the election were a plan for violence
There were legitimate concerns about the election

Bump is absolutely right that Cooper makes false claims to be able to blame Democrats and Bump’s fact checks are sound (and really exhausting that they’re still required). Bump is likewise correct that a false claim about the Steele dossier is central to Cooper’s story.

I’d add that Cooper doesn’t mention that his claims about the problems with the Steele dossier matter primarily to the third and fourth FISA orders against Carter Page, and so happened under the Trump Administration and in three cases, were signed by people Trump either kept (in the case of Jim Comey) or put in place (in the case of Dana Boente and Rod Rosenstein).

But according to Cooper’s logic, if the dossier hadn’t existed, a series of events that followed wouldn’t have happened, and so Republicans wouldn’t have attacked their own government. Thus far it’s a typical right wing attempt to disclaim responsibility for their own actions.

What Bump doesn’t mention, though, is that it is now almost universally agreed upon on among Trumpsters that the dossier was the product of Russian disinformation. Lindsey Graham — who conducted an investigation into the circumstances of the Carter Page FISA — thinks it is. Chuck Grassley — who led the investigation into the dossier — thinks it is. Ron Johnson — who also made a show of investigating these things — thinks it is. Chuck Ross — the chief scribe of the dossier on the right — thinks it is. The high gaslighter Catherine Herridge thinks it is. Fox News and all their favorite sources think it is. WSJ’s editorial page thinks it is. None of these people have thought through the implications of that, but they do all appear to believe that the Russians fed disinformation through the Democratic-funded dossier to the FBI.

So, even setting aside the implications of the possibility that the dossier was Russian disinformation, according to Cooper’s narrative, Trump’s supporters wouldn’t have attacked their own government if it weren’t for Russian disinformation that set off a chain of events that led them to lose confidence in American institutions.

But consider the implications of the dossier as disinformation, implications that are evident largely thanks to sources that right wing figures have made great effort to liberate.

In response to a Trey Gowdy question at an interview by a GOP-led investigation into the dossier, Bruce Ohr explained that on July 30, 2016, Christopher Steele shared three pieces of information with him (later in his interview he would add a fourth, Russian doping): Two details from what we now know to be the dossier, as well as a third — that Oleg Deripaska’s attorney had information about Paul Manafort stealing money from Deripaska.

And then the third item he mentioned was that Paul Hauser, who was an attorney working for Oleg Deripaska, had information about Paul Manafort, that Paul Manafort had entered into some kind of business deal with Oleg Deripaska, had stolen a large amount of money from Oleg Deripaska, and that Paul Hauser was trying to gather information that would show that, you know, or give more detail about what Paul Manafort had done with respect to Deripaska.

Byron York provided more background on Steele’s efforts to share information from Deripaska with Bruce Ohr. The IG Report done in response to GOP requests provided still more. For example, the IG Report revealed that Steele had set up a meeting between Ohr and Oligarch 1, whom we know to be Deripaska, in September 2015 (these claims are consistent with the heavily redacted Ohr 302s liberated by Judicial Watch).

Handling Agent 1 told the OIG that Steele facilitated meetings in a European city that included Handling Agent 1, Ohr, an attorney of Russian Oligarch 1, and a representative of another Russian oligarch. 209 Russian Oligarch 1 subsequently met with Ohr as well as other representatives of the U.S. government at a different location.

[snip]

Ohr and Steele also communicated frequently over the years regarding Russian Oligarch 1, including in 2016 during the time period before and after Steele was closed as an FBI CHS.409 Steele told us his communications with Ohr concerning Russian Oligarch 1 were the result of an outreach effort started in 2014 with Ohr and Handling Agent 1, to approach oligarchs about cooperating with the U.S. government. Ohr confirmed that he and Handling Agent 1 asked Steele to contact Russian oligarchs for this purpose. This effort resulted in Ohr meeting with Russian Oligarch 1 and an FBI agent in September 2015.

The IG Report also revealed that in September 23 (around the same time Deripaska was interviewed by the FBI), Steele passed on a claim that Deripaska wanted to share information about Manafort.

On September 23, 2016, at Steele’s request, Steele met with Ohr in Washington, D.C. Ohr told us they spoke about various topics related to Russia, including information regarding Russian Oligarch 1 ‘s willingness to talk with the U.S. government about Manafort.

Far more consistently than using Ohr as a channel for dossier reports (and for a longer period of time), Steele used his ties with Ohr to advance Oleg Deripaska’s interests. And for the entirety of the time that Steele was feeding the FBI dossier reports, that meant Steele was feeding Ohr claims that not only presented Deripaska as a trustworthy actor, but did so in part by promising Deripaska’s cooperation in a criminal investigation of Paul Manafort. The FBI (and Mueller after that) didn’t investigate Manafort primarily for the stuff Deripaska was trying to feed the FBI, but Deripaska was making great efforts to ensure that the FBI would investigate Manafort. In the aftermath of all this, Trump and Manafort blamed Democrats for all this, but in fact, Deripaska was at least as responsible.

According to footnotes that Graham, Grassley, and Johnson had declassified, before Deripaska first started offering to help DOJ criminally investigate Manafort — before that July 30, 2016 meeting between Steele and Ohr — a Deripaska associate likely learned about the dossier project (the same declassification revealed that two Russian intelligence officers had learned of the project before that meeting which, given the belief that several of Deripaska’s associates were Russian intelligence officers, may be the same report).

Ohr told the OIG that, based on information that Steele told him about Russian Oligarch 1, such as when Russian Oligarch 1 would be visiting the United States or applying for a visa, and based on Steele at times seeming to be speaking on Russian Oligarch l’s behalf, Ohr said he had the impression that Russian Oligarch 1 was a client of Steele. 210 We asked Steele about whether he had a relationship with Russian Oligarch 1. Steele stated that he did not have a relationship and indicated that he had met Russian Oligarch 1 one time. He explained that he worked for Russian Oligarch l’s attorney on litigation matters that involved Russian Oligarch 1 but that he could not provide “specifics” about them for confidentiality reasons. Steele stated that Russian Oligarch 1 had no influence on the substance of his election reporting and no contact with any of his sources. He also stated that he was not aware of any information indicating that Russian Oligarch 1 knew of his investigation relating to the 2016 U.S. elections. 211

210 As we discuss in Chapter Six, members of the Crossfire Hurricane team were unaware of Steele’s connections to Russian Oligarch 1. [redacted]

211 Sensitive source reporting from June 2017 indicated that a [person affiliated] to Russian Oligarch 1 was [possibly aware] of Steele’s election investigation as of early July 2016.

In fact, the IG Report completed in response to Republicans’ requests makes it clear: if the dossier was disinformation, that disinformation most likely involved Oleg Deripaska, with whom Manafort was using his position on the Trump campaign in an attempt to patch up financial and legal relations.

Priestap told us that the FBI “didn’t have any indication whatsoever” by May 2017 that the Russians were running a disinformation campaign through the Steele election reporting. Priestap explained, however, that if the Russians, in fact, were attempting to funnel disinformation through Steele to the FBI using Russian Oligarch 1, he did not understand the goal. Priestap told us that

what he has tried to explain to anybody who will listen is if that’s the theory [that Russian Oligarch 1 ran a disinformation campaign through [Steele] to the FBI], then I’m struggling with what the goal was. So, because, obviously, what [Steele] reported was not helpful, you could argue, to then [candidate] Trump. And if you guys recall, nobody thought then candidate Trump was going to win the election. Why the Russians, and [Russian Oligarch 1] is supposed to be close, very close to the Kremlin, why the Russians would try to denigrate an opponent that the intel community later said they were in favor of who didn’t really have a chance at winning, I’m struggling, with, when you know the Russians, and this I know from my Intelligence Community work: they favored Trump, they’re trying to denigrate Clinton, and they wanted to sow chaos. I don’t know why you’d run a disinformation campaign to denigrate Trump on the side. [brackets original]

Of course, for months before Deripaska first started offering (through Steele) to cooperate with the FBI against Manafort, Manafort had been trying to exploit his position on Trump’s campaign to ingratiate himself with (among others) Deripaska, in part in hopes to paper over precisely the financial dispute that Deripaska was, through Steele, trying to use to increase Manafort’s legal exposure. Weeks before the July 30 Steele-Ohr meeting, for example, Manafort had offered to brief Deripaska on the Trump campaign.

Immediately upon joining the Campaign, Manafort directed Gates to prepare for his review separate memoranda addressed to Deripaska, Akhmetov, Serhiy Lyovochkin, and Boris Kolesnikov,879 the last three being Ukrainian oligarchs who were senior Opposition Bloc officials. 880 The memoranda described Manafort’ s appointment to the Trump Campaign and indicated his willingness to consult on Ukrainian politics in the future. On March 30, 2016, Gates emailed the memoranda and a press release announcing Manafort’ s appointment to Kilimnik for translation and dissemination.881 Manafort later followed up with Kilimnik to ensure his messages had been delivered, emailing on April 11, 2016 to ask whether Kilimnik had shown “our friends” the media coverage of his new role. 882 Kilimnik replied, “Absolutely. Every article.” Manafort further asked: “How do we use to get whole. Has Ovd [Oleg Vladimirovich Deripaska] operation seen?” Kilimnik wrote back the same day, “Yes, I have been sending everything to Victor [Boyarkin, Deripaska’s deputy], who has been forwarding the coverage directly to OVD.”883

[snip]

The Office also obtained contemporaneous emails that shed light on the purpose of the communications with Deripaska and that are consistent with Gates’s account. For example, in response to a July 7, 20 I 6, email from a Ukrainian reporter about Manafort’ s failed Deripaskabacked investment, Manafort asked Kilimnik whether there had been any movement on “this issue with our friend.”897 Gates stated that “our friend” likely referred to Deripaska,898 and Manafort told the Office that the “issue” (and “our biggest interest,” as stated below) was a solution to the Deripaska-Pericles issue.899 Kilimnik replied:

I am carefully optimistic on the question of our biggest interest. Our friend [Boyarkin] said there is lately significantly more attention to the campaign in his boss’ [Deripaska’s] mind, and he will be most likely looking for ways to reach out to you pretty soon, understanding all the time sensitivity. I am more than sure that it will be resolved and we will get back to the original relationship with V. ‘s boss [Deripaska].900

Eight minutes later, Manafort replied that Kilimnik should tell Boyarkin’s “boss,” a reference to Deripaska, “that if he needs private briefings we can accommodate.”901

That is, per both Rick Gates and Manafort himself, how Manafort came to meet with Deripaska aide Konstantin Kilimnik on August 2, just three days after Deripaska tried to increase Manafort’s legal exposure via Steele. That’s how — and why! — he provided a briefing on campaign strategy amid a discussion of resolving the debt to Deripaska (as well as a plan to carve up Ukraine), as described by the SSCI Report completed under Chairs Richard Burr and Marco Rubio.

(U) At the meeting, Manafort walked Kilimnik through the internal polling data from Fabrizio in detail.453 According to Gates, Kilimnik wanted to know how Trump could win.454 Manafort explained his strategy in the battleground states and told Kilimnik about polls that identified voter bases in blue-collar, democratic-leaning states which Trump could swing.455 Manafort said these voters could be reached by Trump on issues like economics, but the Campaign needed to implement a ground game.456 Gates recalled that Manafort further discussed the “battleground” states of Michigan, Wisconsin, Pennsylvania, and Minnesota.457 (U) The Committee sought to determine with specificity what information Kilimnik actually gleaned from Manafort on August 2, 2016. Information suggests Kilimnik understood that some of the polling data showed that Clinton’s negatives were particularly high; that Manafort’s plan for victory called for focusing on Clinton’s negatives as much as possible; and that given Clinton’s high negatives, there was a chance that Trump could win. (U) Patten’s debriefing with the SCO provides the most granular account of what information Kilimnik obtained at the August 2, 2016 meeting:

Kilimnik told Patten that at the New York cigar bar meeting, Manafort stated that they have a plan to beat Hillary Clinton which included Manafort bringing discipline and an organized strategy to the campaign. Moreover, because Clinton’s negatives were so low [sic]-if they could focus on her negatives they could win the election. Manafort discussed the Fabrizio internal Trump polling data with Kilimnik, and explained that Fabrizio ‘s polling numbers showed that the Clinton negatives, referred to as a ‘therm poll,’ were high. Thus, based on this polling there was a chance Trump could win. 458

(U) Patten relayed similar information to the Committee. In particular, he told the Committee that Kilimnik mentioned Manafort’s belief that “because or Clinton’s high negatives, there was a chance, only because her negatives were so astronomically high, that it was possible . to win.”459

[snip]

(U) In addition to Campaign strategy involving polling data and the Ukraine plan, Manafort and Kilimnik also discussed two financial disputes and debts at the meeting. (U) The first dispute involved Deripaska and Pericles.477 Gates recalled that Kilimnik relayed at the meeting that Deripaska’s lawsuit ha’d been dismissed.478 Gates also recalled that Kilimnik was trying to obtain documentation showing the dismissal.479

In short, even without confirmation the dossier was disinformation, it’s clear that Deripaska was playing a vicious double game, using Steele as a channel to increase Manafort’s legal exposure even while using that legal exposure as a way to get an inside track to Trump’s campaign. But if the dossier is disinformation (as Trumpsters seem to universally agree now), it might help explain the dodgy content of the dossier in ways that aren’t important to this post (for example, it might explain why Steele’s sources falsely claimed that Carter Page was Manafort’s liaison with Russia in the same days when Kilimnik flew to the US to offer a pitch to Manafort on Ukraine involving senior Russians).

Now consider one more detail, given that Trumpsters seem to universally agree the dossier was disinformation and the IG Report’s suggestion that the most likely architect of that disinformation was Oleg Deripaska.

On January 8, 2017, Manafort flew to Madrid to meet with a different Deripaska deputy, Georgiy Oganov. As the SSCI Report explained, while Manafort told investigators they discussed the Pericles lawsuit — the same lawsuit Deripaska was using to make Manafort legally insecure — they also discussed stuff that remains almost entirely redacted, but stuff that includes recreating their “old friendship” which (also per the SSCI Report) involved Manafort conducting influence campaigns for Deripaska.

On January 8, 2017, hours after returning to the United States from a trip to ~ to Madrid, Spain.598 Manafort met with Oganov in Madrid during what he claimed was a one-hour breakfast meeting.599 Manafort told the FBI that, at the meeting, Oganov told him that he needed to meet with Deripaska in person to resolve the Pericles matter.600 Manafort agreed but said he would not travel to Ukraine or Russia for the meeting.601

(U) Manafort provided false and misleading information about the purpose, content, and follow-up to the meeting with Oganov to both the Committee and the SCO. In particular, Manafort told the Committee in a written response through counsel that he attended a meeting on or around January 17, 2017, in Madrid with “Georgy Organov.”602 The written response claimed that the meeting was “regarding a private litigation matter involving Oleg Deripaska.”603 Despite admitting his attendance at the meeting to the Committee in May 2017, Manafort initially denied attending the meeting in his interviews with the SCO in the fall of 2018.604 He eventually admitted to attending the meeting with Oganov, and then repeated what he described in his letter to the Committee-that the meeting had been arranged by his lawyers and concerned only the Pericles lawsuit.605

Manafort’s claims about the meeting were false. As the above messages show, the meeting was not designed to be about Pericles, but was also about recreating the “old friendship” and “global politics.”

Manafort returned to the US on January 12 and, three days later, tried to set up an in-person meeting with KT McFarland.

She checked with Mike Flynn, who told her that the “perception” of meeting with Manafort, “especially now” (this was after Flynn’s own back channels with Russia were beginning to become public) would not be good, so to hold off until they were in the hot seats.

Manafort didn’t meet with Trump’s national security team, but around the same time, per reporting from Ken Vogel, he reached out to Reince Priebus and suggested the errors in the dossier not only discredited it, but also the FBI investigation.

It was about a week before Trump’s inauguration, and Manafort wanted to brief Trump’s team on alleged inaccuracies in a recently released dossier of memos written by a former British spy for Trump’s opponents that alleged compromising ties among Russia, Trump and Trump’s associates, including Manafort.

“On the day that the dossier came out in the press, Paul called Reince, as a responsible ally of the president would do, and said this story about me is garbage, and a bunch of the other stuff in there seems implausible,” said a person close to Manafort.

[snip]

According to a GOP operative familiar with Manafort’s conversation with Priebus, Manafort suggested the errors in the dossier discredited it, as well as the FBI investigation, since the bureau had reached a tentative (but later aborted) agreement to pay the former British spy to continue his research and had briefed both Trump and then-President Barack Obama on the dossier.

Manafort told Priebus that the dossier was tainted by inaccuracies and by the motivations of the people who initiated it, whom he alleged were Democratic activists and donors working in cahoots with Ukrainian government officials, according to the operative. [my emphasis]

According to Rick Gates, at some point Manafort asked Kilimnik to obtain more information from his sources about it, including from Deripaska.

Since that suggestion to Priebus — which he made days after his return from a meeting with Deripaska’s associate — Trump has pursued precisely the strategy laid out by Manafort, using the errors in the dossier — the dossier that all Trumpsters now seem to believe was filled with errors by Russian intelligence and possibly by Deripaska associates — to discredit it and with it, the Russian investigation.

That’s the strategy that led Tucker Carlson’s Daily Caller to report on the dossier full time — including forcing the opinion editor at the time to publish a Deripaska column attacking the dossier.

Fusion GPS’s Simpson, in a New York Times op-ed describing his own Judiciary Committee testimony, claimed a neoconservative website “and the Clinton campaign” were “the Republican and Democratic funders of our Trump research.” The Judiciary Committee’s Sen. Dianne Feinstein (D-Calif.) then unilaterally released, over the objection of committee chairman Sen. Chuck Grassley (R-Iowa), Simpson’s testimony to “set the record straight.” Fusion GPS “commended Senator Feinstein for her courage.”

Yet on March 16, 2017, Daniel Jones — himself a team member of Fusion GPS, self-described former FBI agent and, as we now know from the media, an ex-Feinstein staffer — met with my lawyer, Adam Waldman, and described Fusion as a “shadow media organization helping the government,” funded by a “group of Silicon Valley billionaires and George Soros.” My lawyer testified these facts to the Senate Intelligence Committee on Nov. 3. Mr. Soros is, not coincidentally, also the funder of two “ethics watchdog” NGOs (Democracy 21 and CREW) attacking Rep. Nunes’ committee memo.

A former Obama State Department official, Nuland, has been recently outed as another shadow player, reviewing and disseminating Fusion’s dossier, and reportedly, hundreds of other dossiers over a period of years. “Deep State-proud loyalists” apparently was a Freudian slip, not a joke.

Invented narratives — not “of the people, by the people, for the people,” but rather just from a couple of people, cloaked in the very same hypocritical rhetoric of “freedom” and “democracy” that those are actively undermining — impede internationally shared efforts on the world’s most pressing, real issues, like global health, climate change and the future of energy. My own “Mother Russia” has many problems and challenges, and my country is still in transition from the Soviet regime — a transition some clearly wish us to remain in indefinitely.

And that’s the strategy that led Chuck Grassley, Lindsey Graham, and Ron Johnson to spend their time discrediting the dossier rather than conducting oversight of Donald Trump.

That’s the strategy that led Darrell Cooper to believe (or claim to believe) several false claims about the dossier and then use those false claims to excuse the way Trumpsters lost faith in institutions and so attacked the Capitol. In short, the likelihood that the dossier is disinformation — indeed, the likelihood that the guy twisting the nuts of Trump’s campaign manager fed the dossier full of disinformation even while using that pressure to obtain his cooperation — means that (at least if you believe Cooper’s narrative) that disinformation led, through a series of steps, Americans to attack the American Capitol.

Trumpsters appear to love Cooper’s narrative, I guess because it doesn’t hold them responsible for their own gullibility or betrayal of the country. There are other problems with it (including the replication of other claims that Republicans have agreed is Russian disinformation). But ultimately, even with Cooper’s errors, what his narrative amounts to (at least for all the Trumpsters who believe the dossier was disinformation) is a claim that Russia’s 2016 disinformation campaign led Trump supporters to attack the US Capitol.

Update: After I posted some folks in the thread questioned what the point of the disinformation would be. This post lays out a possible logic to it all.

“Oversight:” Mike Flynn Lied to Protect Barbara Ledeen, Who Then Fed Disinformation to Sara Carter

May 11, 2021/60 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

In a footnote to an October 2019 filing, prosecutors in the Mike Flynn case suggested that Sidney Powell was misrepresenting Flynn’s “cooperation and candor” in his first interviews with Robert Mueller’s team, a claim that is consistent with Flynn’s own description of his lawyers’ unhappy review of it. The 302s liberated by BuzzFeed earlier this year show just how ridiculous some of the lies Flynn told in his November 16, 2017 meeting with Mueller’s prosecutors.

For example, in addition to repeating his lies about his conversations with Sergey Kislyak and claiming that he “did not specifically recall conversations regarding Wikileaks” during the campaign, Flynn also claimed that he never had conversations about how to get Hillary’s missing emails.

FLYNN did not recall discussions about a concerted effort to locate [Hillary’s] missing emails.

[snip]

FLYNN never had any conversations about how to get CLINTON’s missing emails. FLYNN did not remember hearing anyone else on the campaign discuss this either. The consensus was that they hoped the emails would be found all of a sudden.

Flynn would go on to unforget all three topics in the weeks and months ahead.

On the topic of searching for Hillary’s emails, however, Flynn was still shading the truth in his final interview before pleading guilty on November 29, 2017. Flynn described that he had met Peter Smith regarding business development in 2015, and described that Smith had emailed during the campaign. But, “FLYNN lost interest in what SMITH sent him because he ‘did not see any there, there’,” per the interview report. As to others who might be involved in the effort, Flynn described that “possibly Barbara LEDEEN” had been a recipient of some of the emails from Smith, though suggested Sam Clovis was a more important player.

It would be six months later, in an interview on May 4, 2018, before prosecutors returned to Flynn’s role in hunting down Hillary’s emails in depth. It appears that, at first, they asked Flynn generally about the Peter Smith effort, and this time, he remembered that “LEDEEN’s role” in the effort “was as a conduit.” Flynn explained that he gave “time and attention” to the effort “out of respect for his friendship with LEDEEN.” It was in that context that Flynn remembered that someone “sent files to FLYNN on one or two occasions,” though even then, he couldn’t remember whether the files were about Benghazi or the missing emails.

The prosecutors started asking Flynn about the actual emails — many of which were liberated in the documents liberated by BuzzFeed.

Prosecutors first asked about an email that the FBI Agent who wrote up the 302 described as a May 24, 2016 email from Ledeen to Flynn. But it’s actually an email Ledeen sent one of the chief purveyors of disinformation about the Flynn case, Catherine Herridge, promising “evidence” (though there are notations on it that may reflect Flynn got a hard copy).

Prosecutors then showed an email Flynn sent to Ledeen on June 16, 2016, in response to Ledeen’s question, “You got the Signal email.”

Flynn’s response reflects him having downloaded and read the report on the effort to obtain the emails. “amazing!” Flynn responded. “I’ll speak more off line with you about it this evening or tomorrow.”

On September 10, 2016, Ledeen wrote Flynn a “TIME SENSITIVE” email, explaining that “we are at the point of rubber hitting the road re the project you know I have been working on.”

In response to Ledeen’s request, the interview suggests, Flynn spoke with someone who had been an early campaign advisor, but he told Mueller’s team that “he did not really remember the details of the conversation.”

He claimed to remember nothing of the October 29, 2016 Hushmail promising a Phase II of the report, however.

“You’ve got me on this one,” Mike Flynn claimed, then described asking Barbara Ledeen, “Can’t you just tell me?” and imagining that, “he became frustrated trying to open the message.”

There was another HushMail on November 3, which Flynn suggested might pertain to Sidney Blumenthal.

But he suggested that “The servers may have been a second set of email messages to FLYNN,” and explained it was all “secret squirrel stuff.”

Flynn’s interview then proceeded to talk about an in-person meeting that Ledeen had set up, apparently with this same person, to discuss microtargeting; the pitch appeared to combine Sidney Blumenthal, servers in Eastern Europe, and microtargeting. It was in this context that, six months after claiming that he never spoke to anyone about getting Hillary’s missing emails, he admitted he actually talked about pursuing the Hillary emails “to anyone he was with on the Trump plane,” including Trump.

FLYNN conveyed to people that people were looking for the missing emails and were confident they would eventually find them. FLYNN would have said this to anyone he was with on the TRUMP plane. FLYNN does not know if specifically said he knew people but he could have. People on the plane include TRUMP. FLYNN did not believe he conveyed to the team information about the servers in the Ukraine or Eastern Europe. FLYNN was not ruling it out but does not recall exactly what he said.

Barbara Ledeen, still a key Senate Judiciary Committee staffer to Senators who have led the effort to undermine the Russian investigation, was right in the thick of all this during the 2016 election: Secret servers in Ukraine, missing emails, and microtargeting. That’s the woman overseeing the investigation into the investigation.

Which makes the other emails liberated in the BuzzFeed release implicating Ledeen all the more important.

It turns out that, before prosecutors asked about all this, they may have been alerted to a text Ledeen sent on May 1, 2018, inquiring about the status of Flynn’s case. Mueller’s team raised the text two weeks after the Peter Smith and microtargeting discussion, on May 17, 2018, when prosecutors focused on Ledeen’s extensive effort to monitor the Russian investigation (starting well before Mueller was appointed).

The backup liberated by Buzzfeed shows that Michael Ledeen inquired about whether he “and Sara” could say that Flynn was getting an immunity for testimony deal on March 31, 2017 (the same way Ledeen’s co-conspirators in Iran-Contra escaped accountability), establishing that the Ledeens funneled stories to Sara Carter. A year later, Flynn conceded, he may have still been a source for Sara Carter stories via the Ledeens, in this case for a story about Flynn getting discovery.

BARBARA reached out FLYNN but he did not respond to her with anything specific. FLYNN may have told her they received discovery and were reviewing the documents.

FLYNN had many conversations around the time of this article but was never asked if the information could be shared with CARTER, nor did he direct anyone to share it with her.

Prosecutors asked about several other Carter stories, and Flynn’s long-suffering attorney, Rob Kelner, admitted that Carter had reached out several times before the plea deal and that he (Kelner) may have been the source for the detail that Andrew McCabe reached out to Flynn about an interview on short notice.

More interesting, however, are the emails between those Carter stories, which show Michael Ledeen (who, remember, was one of the first people Flynn called before secretly undermining sanctions with Sergey Kislyak in December 2016) reached out on April 17, 2017, telling Flynn, “it’s time…”

Then Michael Ledeen reached out the next day (apparently to a different Flynn email address) to arrange a pastrami dinner with extra pickles, Dr. Brown’s diet soda, and “a message for you.”

The meeting would have been on Monday April 24, 2017. Some of Carter’s scoops have been solid, albeit hyped. Others have been garbage. Her regurgitation of Sidney Powell’s false claims was pure propaganda. But she was also responsible, with John Solomon, for one of the most important unsubstantiated stories of the entire investigation, one that claimed Andrew McCabe had said they were going to “fuck Flynn” in a meeting after Flynn’s interview, an allegation that came up in Flynn’s last interview with Mueller (at a time when Mueller would replicate the two investigations that had been done on this allegation in the past).

The same interview reveals that Barbara Ledeen was responsible for another false claim that never died, that there was some original 302 that said something different from the one that recorded Flynn’s lies.

“Barbara tends to have a ‘big mouth,'” Flynn complained on May 17, 2018, as part of these discussions. But he still did what, according to the same interview report, she kept nagging him to do: withdraw his guilty plea. For a long time, it looked like she was simply protecting her husband Michael’s close friend. But with the backup materials, it seems just as likely that Ledeen’s efforts to undermine the Russian investigation are as much about her own complicity as Flynn’s himself.

A person who had a key role Senate Judiciary Committee oversight of the Russian investigation was sending Hushmail and Signal communications looking for secret servers in Ukraine during the events in question.

Update: Here’s my summary of what each of the 302s included from when they were released in January).

Update: In January, Flynn thought that the April message that Ledeen was passing on may have been from Trump.

Arrest First, Learn about Right Wing Terrorism Later

March 10, 2021/46 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

In his Senate testimony the other day, FBI Director Chris Wray was not particularly cognizant of the granular details of the investigation into January 6. But he said something else, repeatedly, that bears consideration.

In response to a Dick Durbin question about whether he agrees that the Capitol attack involved white supremacists and other violent extremists, Wray responded by explaining that as the FBI arrests more and more people, it is developing a better understanding of the motivations behind those involved in the attack.

We’re seeing quite a number, as we’re building out the cases on the individuals we’ve arrested for the violence, quite a number of what we would call militia violent extremists, so we have a number who self-identify with, you know, the Proud Boys or the Oath Keepers, things like that. We also have a couple of instances where we’ve already identified individuals involved in the criminal behavior who we would put in the racially motivated extremists who advocate for what you would call sort of white supremacy. Some of those individuals, as well — one of the things that is happening is part of this is that as we build out the cases on the individuals when we arrest them for the violence we’re getting a richer and richer understanding of different people’s motivations.

Then, in response to a Chuck Grassley question about how the FBI will learn more about alleged left wing extremists (which Wray answered for anarchists), Wray said that by arresting these people, the FBI is learning about their tactics and tradecraft.

I think as with any domestic terrorism threat or, frankly, any counterterrorism threat more broadly, we’re also looking to develop more and better sources so we get more visibility and insight into the plans and intentions, tactic, tactics, procedures of any group of violent extremists. Another is to get better at how to navigate around some of the operational trade craft that they use. So, the more times, the more arrests we see and this is relevant both for the anarchist violent extremists and the racially motivated violent extremists, for example, the more arrests you see, that’s obviously good news that we’re arresting people that need to be arrested. There’s a whole ‘nother part of that is really important. The more arrests we make, the more from those cases we learn about who else their contacts are, what their tactics are, what their strategies are, et cetera. And that makes us smarter, better able to get in front of the threat going forward.

Finally, when Amy Klobuchar asked if the attack was planned and coordinated, Wray first responded that there were aspects that had been planned. Then, in response to a specific question about the Proud Boys’ coordination, Wray explained that the FBI is escalating charges after initial arrests based on what they learn subsequent to the initial arrest.

There have been a growing number of charges as we continue to build out the investigation, either individuals who are now starting to get arrested involving charges that involve more things like planning and coordination or in some instances individuals who were charged with more simple offenses, but now we’re superseding as we build out more of an understanding of what people were involved in. And there were clearly some individuals involved, which I would consider the most dangerous, the most serious cases among the group, who did have plans and intentions and some level of coordination.

None of this is surprising. It has been apparent from the court filings in the investigation.

But the significance of it is worth considering. The FBI blew it in advance of the attack for reasons that have yet to be confirmed but at least seem to arise from an unwillingness to see right wing terrorism being planned in plain sight. But, as I’ve repeatedly said, the nature of the attack is such that every single person who entered the Capitol and many of those who remained outside, physically fighting cops, committed a crime. And so, based on those trespass crimes, the FBI is arresting a lot of people. Because that’s the way the investigation has rolled out — and because, for every single trespass defendant, the record of what they said about their actions in advance make the difference between getting charged for obstructing the vote count or not — it means the FBI arrests people before they’ve done a lot of investigation they otherwise might do before an arrest. For better and worse, that means that the FBI is arresting people and then conducting intrusive collection on them, starting with their cell phone, even for people who seem to be just trespass defendants. That further means that the FBI will get access to communications that will support conspiracy charges when they otherwise would have a difficult time making such charges without a domestic terrorism statute.

There are real problems with this approach — Oath Keeper affiliate Jon Ryan Schaffer moved to dismiss the charges against him because DOJ has left him in an Indiana jail for 48 days without obtaining an indictment. For existing networks that aren’t recognizably a militia, I’m fairly certain the FBI is not seeing associations until after initial detention bids have been lost. Prosecutors have had to backtrack on claims with some notable defendants (such as Ethan Nordean, who got sent released to home confinement as a result).

But it means the FBI will obtain a far more detailed understanding of some of these people than they otherwise would have been able to get. And as it does so, it is seeing the networks of conspiracy that they otherwise might not have.

Congress versus the Constitution: Merrick Garland’s Second Reconstruction

February 26, 2021/30 Comments/in 2020 Presidential Election, Department of Justice, Impeachment, January 6 Insurrection, Terrorism /by emptywheel

Early morning Eastern Time on January 6, I wrote a post arguing that Merrick Garland was a better Attorney General pick than a lot of people assumed. By the end of the day, the January 6 insurrection made him look like an even better pick, based on his successful prosecution of right wing terrorist Timothy McVeigh. When he testified on Monday, Garland surpassed even those expectations, in large part because he described as his mission the same one DOJ had when originally founded 151 years ago: protecting the rights of people of color in the face of right wing terrorism.

Celebrating DOJ’s 150th year reminds us of the origins of the Department, which was founded during Reconstruction, in the aftermath of the Civil War, to secure the civil rights promised by the 13th, 14th and 15th Amendments. The first Attorney General appointed by President Grant to head the new Department led it in a concerted battle to protect black voting rights from the violence of white supremacists, successfully prosecuting hundreds of cases against members of the Ku Klux Klan.

Almost a century later, the Civil Rights Act of 1957 created the Department’s Civil Rights Division, with the mission “to uphold the civil and constitutional rights of all Americans, particularly some of the most vulnerable members of our society.”

That mission remains urgent because we do not yet have equal justice. Communities of color and other minorities still face discrimination in housing, education, employment, and the criminal justice system; and bear the brunt of the harm caused by pandemic, pollution, and climate change.

150 years after the Department’s founding, battling extremist attacks on our democratic institutions also remains central to its mission. From 1995 to 1997, I supervised the prosecution of the perpetrators of the bombing of the Oklahoma City federal building, who sought to spark a revolution that would topple the federal government. If confirmed, I will supervise the prosecution of white supremacists and others who stormed the Capitol on January 6 — a heinous attack that sought to disrupt a cornerstone of our democracy: the peaceful transfer of power to a newly elected government.

This mission is all the more important — and optimistic — given the strains on Congress in the wake of January 6.

Given the delay caused by the former President’s attempted coup, impeachment, the delayed Senate organizing resolution, and a recess, this week, kicked off by Garland’s hearing, has been the first week where the 117th Congress has moved to account for the events of January 6. How Congress responds — and its effect on mid-term elections in 2022 — will have a key role in deciding whether the Republic survives Trump’s efforts to steal an election, or whether those events just harbor a decline into white supremacist authoritarianism.

How Congress responds to the events of January 6 is especially critical given disputes about the form of a 9/11 style commission to assess the event. Nancy Pelosi and Mitch McConnell disagree on key details: whether Democrats should have more representatives on the commission, and how broad the scope will be.

Senate Minority Leader Mitch McConnell slammed House Speaker Nancy Pelosi’s draft proposal for a commission to investigate the Jan. 6 attack on the U.S. Capitol, calling it “partisan by design.”

The Kentucky Republican said he agrees the siege on the Capitol warrants a “serious and thorough review,” but said he thinks Pelosi’s proposal falls short of the standard set by the commission established after the Sept. 11, 2001, terrorist attacks, upon which Pelosi said she would model this new panel.

“The 9/11 Commission was intentionally built to be bipartisan, 50-50 bipartisan split of the commissioners was a key feature,” McConnell said Wednesday on the Senate floor. “It both helped the effectiveness of the investigation itself, and help give the whole country confidence in its work, and its recommendations.”

It’s unclear whether the two sides can come up with a plan for a 9/11 type commission, both because there’s virtually no comity between the two parties and because Republicans have prioritized protecting Trump, their party, and the members of Congress who played a role (with another member implicated yesterday by her spouse’s Three Percenter truck decal). I suspect such a commission may have to wait until other events change the GOP’s current commitment to Donald Trump.

One thing that might change the GOP’s current capture by Trump is the DOJ investigation.

While there are some DOJ decisions that raise questions for me and while it is not yet clear how the courts will finally decide to treat January 6, Merrick Garland’s confirmation will presumably only raise confidence in DOJ’s actions. Virtually all members of the Senate Judiciary Committee, for example, praised his role in the prosecution of Timothy McVeigh during his confirmation hearing (see my live tweet here). Unless DOJ really bolloxes key cases — or unless they shy away from witnesses like James Sullivan, Ali Alexander, and Enrique Tarrio, who can tie the insurrection directly to Trump’s close associates — I expect the investigation and eventually prosecution of those responsible will make the GOP’s continued support of Trump far more toxic (as a few of the GOPers who’ve been censured for their vote to convict Trump have suggested will happen).

The prosecution of January 6 will be the easy part.

The real question, I think, is how Garland weathers GOP attempts to demand prosecutions that Billy Barr primed them to expect.

For example, numerous members (especially Lindsey Graham and Chuck Grassley, whose shared staffer Barbara Ledeen and her spouse were implicated in the Russian investigation) demanded that Garland promise to keep John Durham on, citing Barr’s promise to keep Mueller on during his confirmation hearing, at a point when Barr had already made public statements about the investigation while admitted he knew fuckall about the actual facts.

Garland repeated, over and over, that he can’t make such a commitment until he speaks with Durham. No one knows what Durham continues to pursue that has made his investigation last as long as the Mueller investigation. What is known is that Durham hasn’t interviewed key witnesses and his public filings exhibit fundamental misconceptions about the Russian investigation and precisely the kind of bias he purports to be investigating. Garland repeatedly answered that he didn’t know of any reason to remove Durham early. But he also noted that precisely what Graham and others are demanding about Page — some kind of investigation — happened with the Horowitz report. Notably, Garland knew a detail Republicans refuse to acknowledge: that Horowitz’s ongoing investigation into FISA reveals that the problems in the Carter Page Woods file were no different than other FISA applications, and the more general problems may be a pattern as well.

Given Garland’s emphasis on civil rights, I was at least as interested in Republican attempts to undermine such an effort. Most pathetically, John Kennedy engaged in a colloquy about whether systematic racism exists, whether he, himself, can be racist if he doesn’t think he is, “who wins,” as if equality is a zero sum game. Tom Cotton tried to play games about the difference between racial equality and racial equity.

Finally, there will be GOP pressure to either both-sides political violence, equating actions they claim without evidence were perpetuated by Antifa with January 6, or to limit the extent of the prosecution. With regards to the latter, Garland argued that this investigation will proceed like all investigations, working their way up if the evidence dictates it. That is a position utterly consistent with support for prosecuting Trump’s associates, or maybe even Trump.

With regards to efforts to both-sides political violence — which was Trump’s defense to impeachment and has already played a key role in Republican efforts to dodge accountability for their role in January 6 — Garland gave the kind of judicious answer to Josh Hawley that every Democrat should be prepared to offer. The violence in Portland was criminal (and to the extent it was, it was prosecuted). But it was not an attempt to interrupt the processes of government, such as by interrupting trials.

The Republicans have for years successfully pressured DOJ to try to criminalize their political opponents. As DOJ continues its massive investigation into the insurrection, these efforts will grow more urgent.

Merrick Garland will be confirmed without cowing to Republican efforts to equate their own assault on the Constitution with Democratic politics. But such efforts will intensify after he assumes office, particularly if Durham fails to find the crimes that really don’t exist and as DOJ gets closer to Trump or members of Congress. DOJ has about 18 months to right itself after Bill Barr’s damage, and we shall see how long Garland continues to retain the goodwill of Republicans.