Let’s go back to the Devlin Barrett story that kicked off the manufactured scandal about DOJ slow-walking the Hunter Biden investigation.
That story wasn’t just about tax charges, though those have gotten the bulk of attention. That story claimed that Federal agents had enough evidence to charge Hunter Biden with a false statement tied to purchasing a gun in 2018.
Federal agents investigating President Biden’s son Hunter have gathered what they believe is sufficient evidence to charge him with tax crimes and a false statement related to a gun purchase, according to people familiar with the case.
The gun paperwork part of the investigation stems from 2018, a time period in which Hunter Biden, by his own account, was smoking crack cocaine.
In October of that year, Biden purchased a handgun, filling out a federal form in which he allegedly answered “no” to the question whether he was “an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”
According to a book Hunter Biden later wrote about his struggles with substance abuse, he was using drugs heavily that year.
While it is definitely true that prosecutors ham sandwiched their way through a grand jury on September 14, 2023, charging the President’s son with three felonies (potentially even by relying on the plea colloquy prosecutors obtained before reneging on the deal they made to get it), revelations from that last week have made it clear that while they had enough evidence to charge Hunter Biden, they didn’t have enough evidence to prosecute him.
At the time they indicted, David Weiss had the case file from local authorities showing state prosecutors declining to charge the case days after discovering the gun. Importantly, that case file included evidence photos of the gun itself.
[A]n October 2018 state police case file of the firearm incident that includes interview memoranda and deliberations among Delaware state prosecutors regarding whether to file charges—per the file, on October 30, 2018, after reviewing the facts, New Castle County prosecutors decided not to prosecute and closed the case.
The prosecution produced a Delaware state police case file, which includes a summary of an interview Mr. Biden gave police in October 2018 and other information about the purchase, discard, and recovery of the firearm, as well as evidence photos from its case file. [my emphasis]
They also had the ATF case file, describing more about the gun purchase.
The prosecution also produced an ATF case file that has additional information about the firearm and statements about its purchase.
They had excerpts from Hunter Biden’s book. There’s no indication whether those excerpts include the multiple passages that explain why any digital evidence from 2018 would pose some evidentiary challenges. Indeed, when I asked about one of those challenges in December, Weiss’ spox had no explanation for it.
But there are three things David Weiss only sought after indicting the case — and so over a year after Devlin’s sources got him to publish that there was sufficient evidence to charge Hunter Biden.
Sometime in October, the month after the indictment, they sent the firearm for the first time to an FBI lab to test the residue on the pouch in which the gun was found; the residue tested positive for cocaine. The photos in the local case file are important, because the purported reason an FBI agent accessed the gun in October 2023, the month after the indictment, was to take photos of it.
In 2023, FBI investigators pulled sealed evidence from the state police vault to take photographs of the defendant’s firearm. After opening the evidence, FBI investigators observed a white powdery substance on the defendant’s brown leather pouch that had held the defendant’s firearm in October 2018. Based on their training and experience, investigators believed that this substance was likely cocaine and that this evidence would corroborate the messages that investigators had obtained which showed the defendant buying and using drugs in October 2018. An FBI chemist subsequently analyzed the residue and determined that it was cocaine. [my emphasis]
But the effort to obtain forensic evidence after the indictment was half-hearted; investigators did not test to see how long the residue had been in the pouch, nor did they test for other fingerprints.
(a) a brown pouch (obtained by a scavenger from a public trash can) with cocaine residue was in law enforcement’s possession for over five years, but was not tested until after the charges were brought; (b) even then no test was done for fingerprints or to date how long the residue had been there;
Then, sometime after convening a grand jury for tax crimes in November 2023, the second month after the indictment, Weiss obtained,
testimony (in support of finding probable cause) about the firearm obtained from a witness in a grand jury empaneled in the Central District of California in November 2023 after this indictment had already been brought.
Finally, in December 2023, days after Abbe Lowell asked prosecutors for their evidence of Hunter Biden’s mindset in October 2018, David Weiss obtained — Weiss claims, for the very first time — a warrant to search Hunter’s digital records for such evidence. (Side note: Lowell explains that prosecutors sent him that warrant the day they obtained it, December 4, something Derek Hines didn’t think was important to tell Judge Maryellen Noreika.)
According to the warrant return, Special Agent Boyd Pritchard was still searching for that evidence when Judge Noreika granted my request to unseal it.
That makes David Weiss’ failure, thus far, to actually provide Bates stamps of or describe where they found the messages that prosecutors intend to rely on at trial all the more notable. Even assuming Abbe Lowell’s promised motion to suppress that late warrant fails — and that’s likely — there are aspects of the forensics involved that may make it hard to introduce the messages themselves at trial. Plus, it raises questions about whether they actually found these texts or simply think they know they exist because they read them in some public news report? And if they saw it in a public news report, were those agents tainted by one of the many hard drive sets that have been tampered with?
You can definitely argue, and I’m sure prosecutors will, that some of this late obtained evidence was opportunistic. For example, they may argue that they really did need new photos of Hunter’s gun — photos they did not need to present their case to the grand jury — in advance of trial. They may argue that whatever witness whose November testimony they included in the December warrant was a key tax witness, and they simply locked the person into gun testimony while they had them under oath. That kind of stuff flies under precedents of prosecutorial dickishness all the time.
But, assuming David Weiss’ claim to have only obtained a warrant to search Hunter’s digital evidence for gun crimes on December 4, 2023, you cannot say they had the evidence to prosecute the crime.
They hadn’t looked — not in the over three years they had been combing through Hunter’s digital life. Or, if they had looked, they had done so unlawfully.
That’s not evidence, as Gary Shapley claims, of slow-walking the investigation. That’s evidence that in October 2022, when someone kicked off a scandal that has led to an impeachment inquiry by telling Devlin Barrett what to write down as if it were true, no one planned to take this to trial.
Republicans have spent the 15 months since Devlin’s October Surprise screaming about the investigation, based in significant part on the claims made in Devlin’s story.
But one key claim in Devlin’s story — about how much evidence they had to support the gun charges — has been debunked by David Weiss’ three months of scrambling to get more.
And Devlin, with his reporting partner Perry Stein, chased Derek Hines’ coke-in-gun stunt; that’s precisely the kind of stunt WaPo Dick Pic Sniffers will jump on every time. But they have not reported that that lab report and the warrant to search Hunter’s digital evidence for gun evidence came after the indictment.
In other words, this is, like Matt Viser’s story about the George Bergès testimony, yet another example of WaPo failing to admit that the scandals they manufactured years ago haven’t held up to the evidence found since.
As I laid out here and here, David Weiss’ response to Hunter Biden’s motion to dismiss on selective and vindictive prosecution grounds seemed to rely on a warrant that post-dated the September 14, 2023 indictment charging Hunter with three gun crimes.
Here’s the language in question.
In August 2019, IRS and FBI investigators obtained a search warrant for tax violations for the defendant’s Apple iCloud account. 2 In response to that warrant, in September 2019, Apple produced backups of data from various of the defendant’s electronic devices that he had backed up to his iCloud account. 3 Investigators also later came into possession of the defendant’s Apple MacBook Pro, which he had left at a computer store. A search warrant was also obtained for his laptop and the results of the search were largely duplicative of information investigators had already obtained from Apple. 4 Law enforcement also later obtained a search warrant to search the defendant’s electronic evidence for evidence of federal firearms violations and to seize such data. 5
2 District of Delaware Case No. 19-234M and a follow up search warrant, District of Delaware Case Number 20-165M.
3 The electronic evidence referenced in this section was produced to the defendant in discovery in advance of the deadline to file motions.
4 District of Delaware Case No. 19-309M
5 District of Delaware Case No. 23-507M. [my emphasis]
I asked his spox whether that could possibly be true, but he declined to comment.
So I wrote a letter to Judge Maryellen Noreika seeking to unseal the dockets as judicial records, which would reveal the date.
Judge Noreika ordered the two sides to weigh in.
ORAL ORDER re 73 Letter: IT IS HEREBY ORDERED that, on or before close of business on January 26, 2024, the parties shall provide the Court with their respective positions on the request to unseal the dockets and warrants referenced in the letter 73 . ORDERED by Judge Maryellen Noreika on 1/25/2024. (mdb) (Entered: 01/25/2024)
But Weiss’ letter confirmed my suspicions:
That last warrant, 23-507M, is the only one he described to authorize searches for gun crimes. He didn’t obtain that warrant until December 4 of last year.
David Weiss has been investigating Hunter Biden for going on six years; he indicted the gun crimes just days before the statute of limitations expired on them.
And in all that time, Weiss had (at least per his description) never obtained a warrant to search the iCloud content he first started getting in August 2019 until December 4, 2023, 81 days after he indicted.
To be very clear: there’s absolutely no reason to believe that the December 4 warrant in any way failed to show probable cause (though the laptop may have tainted the July 10, 2020 warrant for other crimes).
Rather, this totally undermines David Weiss’ arguments about why he reneged on his diversion agreement.
In his filing, he claimed he had been considering charging those crimes for some time before he reneged on the diversion agreement. But if that were true — if it were remotely true he was seriously considering charging the gun crimes before Jim Jordan demanded he do so — then he would have obtained this warrant years before, probably in the 2020 warrant or at the very least after Hunter’s book was published in April 2021.
Update: Corrected Judge Noreika’s first name.
After a jury awarded Ruby Freeman and her daughter $148 million for the intentional lies the former president’s former lawyer told about them in an attempt to steal an election, this is some of what Freeman had to say:
Good evening everyone. I am Lady Ruby. Today’s a good day. A jury stood witness to what Rudy Giuliani did to me and my daughter and held him accountable. And for that I’m thankful. Today is not the end of the road. We still have work to do. Rudy Giuliani was not the only one who spread lies about us, and others must be held accountable too. But that is tomorrow’s work. For now, I want people to understand this. Money will never solve all of my problems. I can never move back to the house that I called home. I will always have to be careful about where I go and who I choose to share my name with. I miss my home, I miss my neighbors, and I miss my name.
Freeman’s daughter, Shaye Moss, said this:
As we move forward, and continue to seek justice, our greatest wish is that no one — no election worker, or voter, or school board member, or anyone else — ever experiences anything like what we went through. You all matter and you are all important. We hope no one ever has to fight so hard just to get your name back.
For the women — vindicated by a jury of their peers, Rudy Giuliani’s peers, doing their civic duty — winning this substantial recognition of the damage done to them was about getting their name back.
The comments from the women said so much about the damage that Trump and Rudy’s bullying have done to the nation’s civic fiber.
But that’s not what led the coverage of their victory.
Here’s how WaPo covered it.
WaPo first named Freeman and Moss in ¶3 of the story. The entire story quotes just 23 of their collective words after the verdict (though quotes or describes their testimony at more length, starting 24¶¶ into the story, after repeating Rudy’s false accusations about the women and the debunking presented at trial.
The damages verdict came in a defamation lawsuit filed against Giuliani, 79, by Fulton County, Ga., election workers Ruby Freeman and Wandrea ArShaye “Shaye” Moss, whom Trump and others on the former president’s campaign and legal teams falsely accused of manipulating the absentee ballot count in Atlanta.
“Today is a good day,” Freeman said, standing outside the courthouse with Moss after a jury awarded the mother and daughter pair $75 million in punitive and $73 million in compensatory damages for defamation and emotional distress.
Their attorneys in closing arguments had urged jurors to “send a message” to Giuliani and others in public life that the “facts matter.” On Friday Moss added, “Giuliani was not the only one who spread lies about us, and others must be held accountable, too.”
By comparison, WaPo cited 58 words from Rudy’s post-verdict comments, with pushback on his claims that he hadn’t had a chance to present a case, but not on his comment that if the 2020 election weren’t exposed we wouldn’t have a country anymore.
Though the story described the verdict as a “potentially worrying sign for him as he faces criminal charges in Georgia accusing him of related efforts to overturn Biden’s victory there,” it didn’t talk about how some of the evidence Rudy withheld in discovery might have made that plight worse.
Politico got the names of Ruby Freeman and Shaye Moss in the subhead and the second paragraph.
Politico sandwiched some of Freeman’s comments, 47 quoted words in ¶19, in-between two paragraphs — starting at ¶9 and in ¶24– quoting 49 words of Rudy’s comments.
A few minutes later, Giuliani stood outside the courthouse and declared, “I don’t regret a damn thing.”
The former mayor and federal prosecutor called the monetary award “absurd” and said he would appeal. He denied responsibility for the threats and harassment that Freeman and Moss received — including a bevy of unambiguously racist, violent messages — and said that he receives “comments like that every day.”
“Today’s a good day. A jury stood witness to what Rudy Giuliani did to me and my daughter — and held him accountable,” Freeman told reporters after the verdict was delivered. “We still have work to do. Rudy Giuliani was not the only one who spread lies about us, and others must be held accountable, too,” she said, without elaborating.
But after the verdict on Friday, Giuliani offered a different reason for declining to take the stand: “I believe the judge was threatening me with the strong possibility that I’d be held in contempt or that I’d even be put in jail,” he said.
Giuliani didn’t repeat his false claims about Freeman and Moss Friday, but continued to air false claims that the 2020 election was stolen. “My country had a president imposed on it by fraud,” he declared.
Rather than mentioning Moss’ tribute to other civil servants, Politico focused closely on tensions between Rudy and his attorney, Joe Sibley.
Even though the reporters on this story, Kyle Cheney and Josh Gerstein, provide some of the best coverage of all things January 6, the story didn’t mention that by blowing off discovery in this case, Rudy may have tried to keep evidence hidden from Jack Smith.
Like the other outlets, NYT’s story led with an image of Rudy.
But it focused paragraphs two through four on the women.
Judge Beryl A. Howell of the Federal District Court in Washington had already ruled that Mr. Giuliani had defamed the two workers, Ruby Freeman and Shaye Moss. The jury had been asked to decide only on the amount of the damages.
The jury awarded Ms. Freeman and Ms. Moss a combined $75 million in punitive damages. It also ordered Mr. Giuliani to pay compensatory damages of $16.2 million to Ms. Freeman and $16.9 million to Ms. Moss, as well as $20 million to each of them for emotional suffering.
“Today’s a good day,” Ms. Freeman told reporters after the jury delivered its determination. But she added that no amount of money would give her and her daughter back what they lost in the abuse they suffered after Mr. Giuliani falsely accused them of manipulating the vote count.
Because of that early focus, the dead tree version of today’s paper got Freeman’s name — and her declaration that it was a good day — on page A1 three times.
It closed with Freeman’s promise of more.
“Our greatest wish is that no election worker or voter or school board member or anyone else ever experiences anything like what we went through,” she said.
And while this is a an artificial measure, this NYT story also managed to quote more of Freeman’s speech — 31 words — than Rudy’s — 28. While it quoted Rudy attacking the verdict and standing by his lies, it did not repeat his other lies.
As with all the others, this story didn’t consider whether Rudy was protecting himself criminally by withholding related information in discovery.
I get that these measures are totally artificial. I mean this as observation, not criticism.
I get that Rudy is the famous one, Rudy makes this a tale of downfall. Even bmaz made this about Rudy, not the women who faced him down, Ruby Freeman and Shaye Moss.
But I was really really struck by how, even in their vindication, the heroism of what these women did, the heroism of election workers refusing to be bullied, still wasn’t the focus.
Rudy had his lawyer promise to the jury that Rudy would testify and explain the truth.
Nope, he not only failed to personally testify, he put on no defense at all.
Mothers, don’t let your babies to ever grow up to be this stupid.
$148 million. Wow.
You all should get ready to learn about:
1) additur and remittitur.
2) Supersedeas bonds.
This was absolutely a damning verdict, and there is no way for Rudy to hide from it. Nor Trump, who will blithely act like he never knew Rudy.
Fun times, but there is a LOT ahead. Stay tuned.
Back on September 12, I noted that EDNY seemed to have a plan in place such that George Santos might be considering a plea even as the drama in the GOP House caucus played out.
Which is to say that Big Kev may lose the deciding vote that made him Speaker even before discussions of impeachment and shutdowns are resolved.
Santos’ vote was not enough to save Kevin McCarthy on October 3 (though McCarthy seems unconvinced he’s done, so Santos might yet have another chance to provide McCarthy a deciding vote). And he was in the fractious House meeting when EDNY rolled out a superseding indictment. Santos will vote for someone today, but it’s unclear that’ll result in the election of a Speaker.
The superseding indictment should have come as no surprise. It adds two schemes to the charges in his original indictment. One was mapped out in the criminal information to which Santos’ campaign treasurer Nancy Marks pled guilty last week: in order to qualify for the NRCC program, he and Marks allegedly falsely claimed family members had supported his campaign. For that scheme, EDNY indicted Santos with:
- Conspiracy to defraud the US (the single charge to which Marks pled guilty) [count one]
- Two counts of wire fraud for each false FEC report [counts two and three]
- False statements and falsification charges for the 2021 FEC report claiming the donations [counts four and five]
- Identity theft tied to misuse of the identities of 11 donors [count six]
- False statements and falsification charges for the 2022 FEC report claiming Santos had given himself a $500,000 loan [count seven and eight]
In addition, Santos is charged with access device fraud and identity theft [counts nine and ten] falsely using someone else’s credit card to make donations to himself. Specifically, Santos is accused of making a $12,000 payment on August 1, 2021 to a company associated with Santos, most of which Santos then pocketed.
All those charges were larded onto the other counts originally charged in May.
Even with the ten new counts, Santos may not be done.
The credit card fraud counts — two right now — remain fairly amorphous. While Santos is alleged to have attempted to make numerous credit card payments, only that one on August 1, 2021 is enumerated.
And there’s nothing in the indictment specifically tied to Sam Miele, Santos’ finance guy who was indicted on August 15 for impersonating a key McCarthy staffer. Miele’s case was continued in September to last Friday; time was excluded last week until today (extending past yesterday’s grand jury meeting); and yesterday EDNY asked for another month-long continuance, to November 14. Miele hasn’t, apparently, availed himself of the kind of no cooperation plea deal that Nancy Marks entered into last week. But EDNY seems to think he might, on short order.
As it is, Republicans are likely to face a two week window between the time former Rhode Island Congressperson David Cicilline is replaced on November 7, probably by Democrat Gabe Amo, and the time former Utah Congressperson Christ Stewart is replaced on November 21, probably by Republican Celeste Maloy, in which their margin will shrink by one. But EDNY is increasing the heat on George Santos.
And it seems like there’s likely still another shoe yet to drop there.
Update: Roger Sollenberger reported before the superceding indictment came out yesterday that ultimately there was $500,000 that ultimately back-filled the bullshit financial loan Santos made to his campaign. But it’s not clear, yet, whence it came.
You might remember me complaining that the way Fulton County Attorney’s Office was ridiculous with their application of their state’s RICO provisio. I said that it was absurd, abusive and would lead to further abuse of it.
Well further evidence of that abuse is now here, and it is very ugly. Via the Washington Post:
“A Georgia grand jury has indicted 61 people on racketeering charges connected to protests that seek to block the building of the planned police and firefighter training facility in Atlanta that has been referred by critics as “Cop City.”
Georgia Attorney General Chris Carr (R) announced the sweeping indictment Tuesday after a long-running state investigation that mainly focused on members of Defend the Atlanta Forest, which prosecutors called an “anti-government, anti-police, and anti-corporate extremist organization” that has supported a violent movement against law enforcement since the 2020 racial justice protests.The 109-page indictment was filed in Fulton County on Aug. 29, just weeks after the same grand jury charged former president Donald Trump with racketeering charges under the state’s Racketeer Influenced and Corrupt Organizations (RICO) law, in connection with efforts to overturn President Biden’s 2020 win in Georgia.”
Yes, you read that right, the same grand jury that rendered the sprawling Trump and friends indictment. At least this time the State of Georgia acted through its proper Attorney General, and not through a local county attorney who took it upon herself.
“Designed to prosecute a criminal enterprise, the law has also been used against gang leaders and human traffickers. The Georgia RICO law is one of the broadest in the country. It allows prosecutors to weave together a wide variety of alleged crimes, including violations of state and federal laws, and even activities in other states. The charges brought against the activists is the latest example of Georgia prosecutors bringing racketeering counts in prominent cases.”
Yeah, no kidding. Yes, RICO was gratuitous as to Trump. In fact, I think it made the Fulton County indictment weaker if cases go to trial. It is complex and confusing. And a jury may well find it so. Or not. We’ll see.
As to the protestors, keep in mind that the minimum sentence is 5 years prison. Same for Trump et. al. A judge can modify that, but what if a judge doesn’t?
This is now going to spread outside of Georgia, and that is very much not a good thing. It was designed for mob bosses, and then drug cartels, and nobody cares about that use. But expansion like in GA to political speach and acts is really bad. It is more than bad, it is heinous. It is a stain and blight on the American criminal justice system.
I warned that what has, and was, being done in Georgia was dangerous. And this is just then tip of the iceberg coming because it will spread.
For anybody that has forgotten, here is Ken White, aka Popehat, on RICO.And, yeah, he pretty much maintains that as to the Trump et. al indictment in Fulton County:
“I am not a Georgia law expert. Federal RICO against Trump would be extremely implausible. Georgia RICO? Won’t speculate. I will say that Georgia RICO seems like a needlessly convoluted and performative approach, but DAs gonna DA.”
That was from Ken’s Mastodon account. He has also said:
“In my view, the Georgia RICO indictment is gratuitous, self-indulgent, and careless of the appearance of legitimacy.”
That is being kind, and the indictment of the protestors for RICO is even more absurd. The moral of the story is be careful of what you cheer for, because what Georgia is doing is truly egregious.
Proud Boy Dominic Pezzola, who U.S. District Judge Tim Kelly described Friday as the “tip of the spear” that first let rioters flood into the Capitol on Jan. 6, 2021, has been sentenced to 10 years in prison. As he exited the courtroom, Pezzola shouted: “Trump won!” and pumped his fist in the air.
The remark came after his wife, daughter and mother delivered tear-soaked, highly emotional pleas to the court for mercy and less than an hour after Pezzola told the court: “There is no place in my future for groups or politics whatsoever.”
Pezzola faced trial for seditious conspiracy and a multitude of other charges connected to efforts with fellow Proud Boy co-defendants to forcibly stop the transfer of power. He was acquitted of the sedition charge but jurors that reviewed the case for a marathon four-month slog did find him guilty of conspiring to obstruct an official proceeding. Pezzola was also found guilty of obstruction of an official proceeding, conspiracy to prevent members of Congress and federal law enforcement officers from discharging their duties, civil disorder, and destruction of government property.
For the forcible taking of a police riot shield off a U.S. Capitol Police officer Pezzola was also found guilty of assaulting, resisting, or impeding certain officers and robbery involving government property.
“You really were, in some ways, the tip of the spear that allowed people to end up getting into the Capitol,” Kelly said.
The 10-year sentence fell well under what prosecutors initially sought: 20 years. Guidelines only recommended 17.5 to 22 years. Kelly did apply the terrorism enhancement on his offenses, but felt that it didn’t apply to his conduct specifically and overstated it. Pezzola, the judge said, did not have intent to kill.
Proud Boy leader Ethan Nordean — who was convicted of seditious conspiracy — was sentenced to 18 years in prison by Judge Kelly on Friday afternoon. That is the same length of sentence that was given to former Oath Keeper founder Elmer Stewart Rhodes. Rhodes was also convicted of seditious conspiracy and several other charges.
When it was his time to make a statement, Nordean’s voice was clear and loud. He did not appear to be overcome by emotion. He started out by telling Judge Kelly that he believed only two points about Jan. 6 really needed to be understood to grasp the gravity of that day.
“We must conclude Jan. 6 was a complete and utter tragedy. How do we know this? It’s best to simplify this complex argument…All we need to show is two simple points: first, lots of people were seriously hurt and [next] some people lost their lives. We don’t necessarily need to know about all the destruction that was caused, [or about those] not following commands of law enforcement or those who assaulted police officers,” Nordean said.
“A lot of people went to [D.C. on] Jan. 6 with good intentions but passions accelerated and chaos ensued,” Nordean also sad Friday. “Even if we start out with good intentions, the end result is how we will be judged, as it should be.”
Of his largest regrets around Jan. 6, Nordean told the court it was his lack of “leadership” on Jan. 6.
“I came to Jan. 6 as a leader. I came to keep people out of trouble and keep people safe,” he said.
Later he added: “The truth is I did help lead a group of men back to the Capitol and I can see the government’s point: I had ample opportunity to de-escalate and I chose to do nothing… There’s no excuse for what I did…. adding myself to an already chaotic and dangerous situation in the Capitol building was sorely irresponsible.”
Pezzola and Nordean’s co-defendants Joseph Biggs and Zachary Rehl were sentenced Thursday. Both Biggs and Rehl were convicted on the seditious conspiracy charge; Biggs received 17 years and Rehl was sentenced to 15 years. After Judge Kelly fell ill earlier in the week, Proud Boys leader Henry “Enrique” Tarrio’s sentencing was pushed to Sept. 5. Prosecutors seek 33 years for Tarrio.
If you want to read through the live-thread I’ve put together for emptywheel, check out the link here. An in-depth report encapsulating these historic sentences is coming.
NOTE: Emptywheel is again supporting Brandi Buchman’s coverage of the Proud Boys hearings live from the courthouse. Please consider making a donation to emptywheel as she continues her reporting through the final Proud Boys sentencing hearing for Henry “Enrique” Tarrio scheduled for Sept. 5.
Alright, there are two hearings today, both at pretty much the same time. The first is in Prettyman Courthouse in DC and concerns trial scheduling for the J6 case of Jack Smith. It may get VERY contentious. As a preview, even Trump’s attorneys are at severe disagreement, with one saying no trial and must wait until 2026. Alina Habba, on the other hand says Trump knows everything and is ready to go. I’ve always considered Habba a bit of a dim bulb, but man did she prove it there.
Regarding the other simultaneous matter, it concerns ostensibly Mark Meadows’ motion to remove the Willis charges to federal court. It was filed, and will be heard, in the Northern District of Georgia.
“Fulton County District Attorney Fani Willis will lay out the first details of her sprawling anti-racketeering case against former President Donald Trump, his White House chief of staff Mark Meadows and 17 other co-defendants at a federal court hearing on Monday morning.
This will be the first time that substantive arguments will be made in court about the four criminal cases brought against Trump this year.
The subject of the hearing, set to begin at 10 a.m., is Meadows’ motion to move his case to federal court and possibly have it thrown out, but it’s much more than that – it could end up acting as a mini-trial that determines the future of Fulton County’s case against the former president.”
I am not sure how much of a “mini-trial” this will really be. If so, that could take all day if evidence is to be presented and argued, which strikes me as unlikely. No cameras in either hearing so you will have to follow @Brandi Buchman and, I believe, @JoshGerstein for live updates. Via Rosalind, “Jordan Fischer – @JordanOnRecord on bird site – is also giving nice updates for the D.C. hearing.”
UPDATE: The Fulton County Judge has just set September 6 as the arraignment and plea date for all Fulton County defendants, including Trump. That is pointy to be a busy day for the court then. Unclear if some will be allowed to appear by video, but they sure our ht to be encouraged to do so.
After Trump was indicted in DC, the speculation — informed and otherwise — went to his possible defense strategies. “Delay delay delay” was an early one, following his increasingly successful efforts to do so in the Mar-a-Lago case before Judge Cannon. Judge Chutkan, however, is no Judge Cannon, and she has been pushing hard to move things along briskly. Trump sycophants have been putting some trial balloons out there, to see what might fly with the base, if not with the court, such as cries of “Free Speech!” and “First Amendment!” which pointed to a possible defense strategy. Another was the claim that Trump was relying on the advice of counsel, and thereby cannot be held liable.
That last one I found rather . . . what’s the correct legal term of art? Oh yes . . . silly.
White House Counsel Pat Cippolone told Trump that his claims of fraud were silly. He was more polite about it, but that’s what his advice boiled down to. Trump’s AG, DAG, Acting AG, head of OLC, and numerous other lawyers at the DOJ told Trump that his claims of fraud were silly. Christopher Krebs, a lawyer and the first head of the Cybersecurity and Infrastructure Security Agency at DHS told Trump that his claims of fraud were silly for multiple reasons. DNI John Ratcliffe (per Cassidy Hutchinson) said Trump’s claims were silly and dangerous.
But apparently the advice of all these lawyers he appointed to positions in his own administration wasn’t enough for Trump, because Rudy et al. said all these lawyers were wrong.
Out in the states, there were other lawyers weighing in, too. Ryan Germany, the general counsel to Georgia Secretary of State Brad Raffensperger, told him that his claims about fraud in Georgia were silly. Some of Trump’s own lawyers in Pennsylvania and Arizona withdrew from representing Trump before the courts in their states, which is a strong sign that their client would not listen to them and take their advice that his claims were silly. Then more of his PA lawyers did the same. Even the lawyers who stayed on to represent Trump in these election cases told the judges in their cases that Trump’s claims of fraud were silly, as there was no evidence to back up those claims.
But apparently the advice of all these lawyers wasn’t enough for Trump, either.
Which brings us to the judges. State judges and federal judges. Trial judges and appellate judges. The justices of the Supreme Court of the United States. In more than five dozen separate cases, the rulings issued by all these courts said that as a matter of law, Trump’s claims were silly. Let’s let US Judge Matthew Brann of the Middle District of Pennsylvania speak for the all lawyers who wear the black robes, who passed judgment on one or more of Trump’s claims. As Brann wrote in the Introduction to his ruling in DONALD J. TRUMP FOR PRESIDENT, INC., et al. v. KATHY BOOCKVAR, et al.:
In this action, the Trump Campaign and the Individual Plaintiffs (collectively, the “Plaintiffs”) seek to discard millions of votes legally cast by Pennsylvanians from all corners – from Greene County to Pike County, and everywhere in between. In other words, Plaintiffs ask this Court to disenfranchise almost seven million voters. This Court has been unable to find any case in which a plaintiff has sought such a drastic remedy in the contest of an election, in terms of the sheer volume of votes asked to be invalidated. One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption, such that this Court would have no option but to regrettably grant the proposed injunctive relief despite the impact it would have on such a large group of citizens.
That has not happened. Instead, this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws, and institutions demand more. At bottom, Plaintiffs have failed to meet their burden to state a claim upon which relief may be granted. Therefore, I grant Defendants’ motions and dismiss Plaintiffs’ action with prejudice.
Short Judge Brann: Mr. Trump, you’re being silly. Go away, and don’t bring this crap into my courtroom again.
So back to the case before Judge Chutkan. If Trump’s team tries to raise the “reliance on the advice of counsel” defense, I would hope that Jack Smith and his team would run through the list of each one of the Trump administration lawyers who told Trump his claims were silly, and each one of the judges who ruled that as a matter of law, these claims were silly, and ask whoever is representing Trump one simple question: how many MORE lawyers need to tell Trump he’s wrong before he accepts their conclusions?
Which brings me to the final question asked at Trump’s infamous July 2018 press conference alongside Vladimir Putin in Helsinki.
Jonathan Lemire: Thank you. A question for each President. President Trump, you first. Just now, President Putin denied having anything to do with the election interference in 2016. Every U.S. intelligence agency has concluded that Russia did. What – who – my first question for you, sir, is, who do you believe? My second question is, would you now, with the whole world watching, tell President Putin – would you denounce what happened in 2016? And would you warn him to never do it again?
Donald J. Trump: So let me just say that we have two thoughts. You have groups that are wondering why the FBI never took the server. Why haven’t they taken the server? Why was the FBI told to leave the office of the Democratic National Committee? I’ve been wondering that. I’ve been asking that for months and months, and I’ve been tweeting it out and calling it out on social media. Where is the server? I want to know, where is the server? And what is the server saying? With that being said, all I can do is ask the question. My people came to me – Dan Coats came to me and some others – they said they think it’s Russia. I have President Putin; he just said it’s not Russia.
I don’t see any reason why it would be, but I really do want to see the server. But I have – I have confidence in both parties. I really believe that this will probably go on for a while, but I don’t think it can go on without finding out what happened to the server. What happened to the servers of the Pakistani gentleman that worked on the DNC? Where are those servers? They’re missing. Where are they? What happened to Hillary Clinton’s emails? Thirty-three thousand emails gone – just gone. I think, in Russia, they wouldn’t be gone so easily. I think it’s a disgrace that we can’t get Hillary Clinton’s 33,000 emails. So I have great confidence in my intelligence people, but I will tell you that President Putin was extremely strong and powerful in his denial today. And what he did is an incredible offer; he offered to have the people working on the case come and work with their investigators with respect to the 12 people. I think that’s an incredible offer. Okay? Thank you.
Given a choice between believing the conclusions of every US intelligence agency on Russian interference in the 2016 election on the one hand and the extremely strong and powerful denial by the leader of Russia on the other, Trump chose Putin.
Can you see why Helsinki came to my mind?
Trump has a pattern when it comes to getting advice from others, that revolves around two immutable statements:
- Trump wants advice that supports his current thinking, OR advice that will provide him some kind of immediate or future benefit.
- Trump does NOT want advice that tells him he is wrong about something, that he lost a court case or election, or that he otherwise failed.
When confronted by failure, Trump will seize on anything that suggests even the slimmest possibility of ultimate success.
Again, look at Helsinki. Sure, the unanimous conclusion of the US intelligence community was that Russia meddled in the 2016 election, but if Trump accepted that conclusion in public, while standing next to Putin, any hope Trump had of a grand Trump Tower Moscow (something he had worked on for years) would be gone. Also, if Putin held some kind of compromising information on Trump (a conclusion that Marcy leaned toward in her post on the press conference), Putin would surely release it. The result of backing the US IC would be immediate harm and future failure for Trump. Not good.
Would this loss and damage be outweighed by some other benefit, like being seen as the heroic leader of the US intelligence community? Hardly. In Trump’s eyes, these were Deep State folks who were out to get him, and even if he accepted their advice, they’d never accept him as their leader, and he’d piss off his other supporters who had been backing him against the IC. Also not good. Thus, Trump’s answer to Lemire’s question was simple: I believe Putin.
Faced with a mountain of evidence against him, either in Helsinki or in courtrooms across the country, Trump will always reject the advice of those who say definitively that he has lost and cling for his life to the advice of whomever tells him otherwise. Trump lives by the immortal line of Lloyd Christmas: “So you’re telling me there’s a chance . . . Yeah!”
Trump is not seeking out folks like Rudy “Four Seasons Total Landscaping” Giuliani, Sidney “Release the Kracken!” Powell, or any of his other lawyers to guide his legal strategy. He keeps them around because they keep telling him that there’s a chance.
Spoiler alert for Trump and anyone who hasn’t seen Dumb and Dumber: Lloyd’s 1 in a million chance did not come through for him, and he didn’t get the girl.