DOJ’s Theory of Trump’s Mob

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DOJ’s reply on its bid for a gag on Donald Trump has a number of the things you’d expect.

It has a list of the seven people Trump has threatened since the last filing on this, including Trump’s vicious attack on Mark Milley.

With each filing, DOJ just keeps adding to the list of people Trump either incited or targeted.

The government also notes that Trump may have broken the law — or claimed he did, for political benefit — when he claimed to have purchased a Glock.

9 The defendant recently was caught potentially violating his conditions of release, and tried to walk that back in similar fashion. In particular, on September 25, the defendant’s campaign spokesman posted a video of the defendant in the Palmetto State Armory, a Federal Firearms Licensee in Summerville, South Carolina. The video posted by the spokesman showed the defendant holding a Glock pistol with the defendant’s likeness etched into it. The defendant stated, “I’ve got to buy one,” and posed for pictures with the FFL owners. The defendant’s spokesman captioned the video Tweet with the representation that the defendant had purchased the pistol, exclaiming, “President Trump purchases a @GLOCKInc in South Carolina!” The spokesman subsequently deleted the post and retracted his statement, saying that the defendant “did not purchase or take possession of the firearm” (a claim directly contradicted by the video showing the defendant possessing the pistol). See Fox News, Trump campaign walks back claim former president purchased Glock amid questions about legality (Sept. 25, 2023), https://www.foxnews.com/politics/trump-campaign-walks-back-claim-former-presidentpurchased-glock-amid-questions-about-legality (accessed Sept. 26, 2023). Despite his spokesperson’s retraction, the Defendant then re-posted a video of the incident posted by one of his followers with the caption, “MY PRESIDENT Trump just bought a Golden Glock before his rally in South Carolina after being arrested 4 TIMES in a year.”

The defendant either purchased a gun in violation of the law and his conditions of release, or seeks to benefit from his supporters’ mistaken belief that he did so. It would be a separate federal crime, and thus a violation of the defendant’s conditions of release, for him to purchase a gun while this felony indictment is pending. See 18 U.S.C. § 922(n).

Notably, the government points to 18 USC 922 as its basis to claim it would be illegal for Trump to purchase a gun. His release conditions don’t prohibit him from owning a gun.

Trump won’t be charged on this. Which means it’ll be another thing Hunter Biden will use to show selective prosecution.

But I’m most interested DOJ’s rebuttal to Trump’s claim that Jack Smith improperly connected Trump to January 6 in his press conference announcing the indictment when he said Trump had, “fueled . . . an unprecedented assault on the seat of American democracy.”

The defendant seeks to deflect responsibility for his own prejudicial statements by claiming that the indictment in this case was “false and derogatory” and that the Special Counsel’s brief statement upon its unsealing was prejudicial because it ascribed to the defendant responsibility for the events of January 6, 2021—which, according to the defendant’s opposition, the indictment does not allege. ECF No. 60 at 19-20. The defendant is wrong.

[snip]

[T]he indictment does in fact clearly link the defendant and his actions to the events of January 6. It alleges—and at trial, the Government will prove—the following:

  • The defendant’s criminal conspiracies targeted, in part, the January 6 certification and capitalized “on the widespread mistrust the [d]efendant was creating through pervasive and destabilizing lies about election fraud,” ECF No. 1 at ¶4.
  • In advance of January 6, the defendant “urged his supporters to travel to Washington on the day of the certification proceeding, tweeting, ‘Big protest in D.C. on January 6th. Be there, will be wild!,’” id. at ¶87. He then “set the false expectation that the Vice President had the authority to and might use his ceremonial role at the certification proceeding to reverse the election outcome in [his] favor, id. at ¶96.
  • Then, despite his awareness “that the crowd [ ] on January 6 was going to be ‘angry,’” id. at ¶98, on the morning of January 6, the defendant “decided to single out the Vice President in public remarks,” id. at ¶102, and “repeated knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding and exert pressure on the Vice President to take the fraudulent actions he had previously refused,” id. at ¶10d.
  • Finally, on the afternoon of January 6, after “a large and angry crowd—including many individuals whom the [d]efendant had deceived into believing the Vice President could and might change the election results—violently attacked the Capitol and halted the proceeding,” the defendant exploited the disruption in furtherance of his efforts to obstruct the certification, id. at ¶10e.

In short, the indictment alleges that the defendant’s actions, including his campaign of knowingly false claims of election fraud, led to the events of January 6.

This is a very neat formula of the things Trump did to stoke the violence. The lies provided foundation for the rally which provided an opportunity to target Pence which provided the cause to send mobs to the Capitol. DOJ has been working on laying out this formula for 26 months. Here they lay it out in a few short paragraphs, one way to read a complex indictment.

More remarkably, it comes as part of a gag request that — while it mentioned Trump’s attacks on Pence after the fact — didn’t focus on Trump’s dangerous targeting of Pence to gin up the mob. The initial gag request looked at all the other lives Trump ruined by targeting them. But it didn’t focus on Pence.

Here, once again in the response to an invitation by Trump to do so, DOJ neatly lays out how Trump’s attacks on Pence were a key tool he used to direct the mob.

The Timeline of the Hunter Biden Investigation Doesn’t Support Attacks on Lesley Wolf

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Self-imagined IRS whistleblowers, Gary Shapley and Joseph Ziegler, continue to engage in an information campaign that not only hasn’t provided real evidence for impeachment, but also must be creating real difficulties for David Weiss as he attempts to charge the tax case against Hunter Biden.

The House Ways and Means Committee released a slew of documents provided by the IRS Agents the other day in advance of Thursday’s Impeachment Clown Show. Below, I’ve laid out just the documents pertaining to the investigation (that is, the purported topic of their whistleblower complaint), along with explanations of what the documents show. There are a bunch of other investigative documents (Shapley appears to have let Ziegler assume most of the legal risk of releasing the bulk of the new IRS and grand jury documents), some of which reflect a real sloppiness about parts of the investigation, which would pose still more problems charging this case.

I also plan to write a follow-up post laying out Gary Shapley’s actions in advance of the October 7, 2022 meeting. They show that the items he claimed presented a new “red line” for him in that meeting had instead been raised with him months earlier. He came into the meeting with an agenda — notably, that David Weiss should ask to be appointed Special Counsel (as opposed to Special Attorney) — and raised non-sequiturs given the posture of the case at the time.

As to some other key claims the IRS Agents have made, especially against Lesley Wolf, the record provides countervailing evidence on those too.

As noted, for example, the decision not to take overt steps in 2020 came directly from Donald Trump’s Deputy Attorney General’s office, from someone — Richard Donoghue — who knew first-hand about Russian efforts to tamper in the election by focusing on Hunter Biden. The IRS Agents and Republican Members of Congress have blamed Wolf for that.

One key complaint is that Gary Shapley wasn’t permitted to surprise Hunter Biden during the day of action on December 8, 2020. But as Wolf represented it in a call Ziegler memorialized on December 11, the norm would have been to work through Hunter’s lawyers for an interview. Her support of going with only a heads up to the Secret Service was a deviation from that norm, she claimed. There’s no support in these documents for Shapley’s claim (and Ziegler’s hearsay claim) that the Transition Team got a heads up from DOJ, so if Shapley had a credible source for it, it wasn’t documented notice.

Another complaint — one Republicans in Congress can’t let go — was that Wolf used a subpoena to get the contents of a storage facility Hunter had rather than a search warrant. But a month earlier than that, the plan wasn’t to get a warrant, it was to do a consent search. When Ziegler pitched her on a search warrant after the Rob Walker interview, he wanted to do the search immediately, within a week, in spite of what she represented would be the onerous approval process to get a warrant. According to what Ziegler records Wolf saying, all the lawyers involved in this decision agreed with her (not surprisingly, given that a taint review after going overt would involve the same level of defense attorney involvement as a subpoena would). When the IRS escalated this issue on December 14, they still didn’t know how a taint review would work in the Fourth Circuit, meaning they had not yet tested Wolf’s claims.

Importantly, the reason Ziegler thought it so important to do a search of the storage facility rather than serve a subpoena is that he wanted to find proof of foreign bank accounts, something for which Wolf claims there was no evidence.

Ziegler brought up the potential for foreign accounts and the records that he had seen thus far that indicate there are foreign accounts involved in this case. Wolf said that there is no indication what‐so‐ever that the Subject has foreign accounts and that any records related to that would be turned over [pursuant to subpoena].

Even in the most recent Republican documents, reflecting what Ziegler and Shapley turned over, I’m aware of no such evidence. The foreign payments Republicans claim are so suspect went right through corporations established in Delaware. Many of the payments appear to have gone through the same Wells Fargo accounts on which Ziegler predicated this investigation five years ago. And the IRS appears to have checked (one, two) with the most likely havens — Hong Kong and the Cayman Islands — about whether there were foreign accounts. I haven’t read all the investigative documents or the tax returns and investigators may find something else, but if this is correct, then it’s one hell of a money laundering claim these guys are chasing, consisting of payments through corporations headquartered right in Delaware and payments through Hunter’s main bank account.

It was already clear from Ziegler’s testimony that his complaints about delays in interviews in 2021 didn’t account for Wolf’s efforts to prioritize more important investigative steps, such as getting approval for a subpoena for Hunter’s attorney, George Mesires, rather than focusing on interviews with sex workers. The interview with Mesires took another year to schedule. But one set of emails from the time show it was Ziegler’s IRS supervisor, and not Lesley Wolf, that pushed back on his plans for interviews; the supervisor suggested he bring in “collaterals” to do some of the investigative work rather than do it all himself.

The IRS Agents and Republican Members of Congress similarly keep complaining that David Weiss let the statute of limitations expire on the 2014 and 2015 charges most closely focused on Burisma. There was already evidence (most especially in the hand-written notes that Shapley only belatedly shared) that it wasn’t so much that Weiss “let” SOLs expire, but that he made a prosecutorial decision — one Shapley refused to abide by — not to charge those years. Lesley Wolf first started raising questions about the sufficiency of the evidence in May 2021. This new trove of documents show that Shapley had been informed that DE USAO was disinclined to charge those years more than two months before October 2022, and again in August 2022. There is a good deal of evidence that Shapley’s manufactured panic about “letting” SOLs expire instead is an expression of disagreement with a prosecutorial decision.

Perhaps worst of all, the depiction the IRS Agents have made of Lesley Wolf does not reflect what appears in these documents, which show her to be more supportive of them than they claimed. On September 21, 2020, Wolf followed up immediately when the FBI showed reluctance to pursue parts of the investigation. In October 2020, she was supportive of the IRS’ wishes to do the Day of Action interviews sooner rather than later. In December 2021, she made a point of commending all the work Ziegler had done on the case. In June 2022, David Weiss recognized Ziegler’s work. In August 2022, Wolf noted that Ziegler was  busy dealing with a family issue and empathized, “know I am thinking of you and sending good thoughts.”

The one thing Wolf absolutely did push back on was the IRS Agents’ efforts to conduct a campaign finance investigation of the funds Kevin Morris provided to Hunter to pay off his taxes. At one point, her request that they prioritize the 2014 tax case first (which she said hadn’t been proven yet) was depicted as obstruction. At another — in Shapley notes that again appear to conflict with what he was writing in the official record — she provided several good legal reasons not to pursue the case, including that any “donation” from Morris to Joe Biden via Hunter was even more attenuated than the John Edwards case that failed. By recording and publicly releasing Wolf noting that the law was not clear on this issue, Shapley will make it almost impossible to charge, because anyone charged would simply point out that even DOJ agreed it wasn’t a clear campaign finance donation. And what the IRS Agents otherwise portray as Wolf’s disinterest in involving Public Integrity (PIN) because they would take authority away from her was (here and elsewhere) instead described as PIN requiring another layer of approvals, precisely the thing that IRS Agents were complaining about elsewhere.

The IRS Agents’ recriminations of Lesley Wolf have gotten her targeted with serious threats. And yet, their own record doesn’t substantiate the claims they have made against her.

Update: Corrected which countries IRS reached out to: the Caymans and Hong Kong, not Cyprus.

Timeline

September 21, 2018: Suspicious Activity Report from Wells Fargo.

October 31, 2018: Primary investigation initiated into other entity.

November 1-2, 2018: Request of support for SAR, only other agency investigating was DA office.

December 10, 2018: Primary investigation initiated into Hunter Biden.

January 18, 2019: Update from Wells Fargo on SAR.

Around February 2019: SSA informs Ziegler that DE USAO looking into SAR.

March 28-29, 2019 Exhibit 400: April 26, 2019, FBI FD 302, re: March 28, 2019, Interview with Gal Luft. It appears likely there were two 302s of these interviews (possibly three) because Luft’s alleged lies don’t appear in unredacted form in this one.

April 12, 2019: Package submitted to DOJ-Tax

April 15, 2019 Exhibit 206: April 15, 2019, Email from Joseph Ziegler to Jessica Moran, Subject: Approx. Timeline. This shows the above timeline, about which Ziegler was not clear in his testimony.

April 29, 2019 Exhibit 207: April 29, 2019, Email from Matthew Kutz to Kelly Jackson, cc’ing Joseph Ziegler and Christopher Wajda, Subject: Robert Doe – FYI Venue issue. Kutz is the person to whom Ziegler attributed his understanding that Barr had assigned this to DE USAO himself, before backing off that claim. Kutz is also the person who was documenting 6A and inappropriate influence on the investigation. Ziegler provides none of that.

August 5-7, 2020 Exhibit 202: August 5-7, 2020, Emails Between Joshua Wilson, Lesley Wolf, Carly Hudson, cc’ing Susan Roepcke, Michelle Hoffman, Joseph Ziegler, and Joseph Gordon, Subject: BS SW Draft. This was a warrant for BlueStar emails. AUSA Wolf objected not just to the mention of Joe Biden in the warrant (which is the only thing Ziegler leaves unredacted), but also to a great deal of stuff that was outside scope of the warrant. The SDNY FARA investigation was active in this period, which may be why other stuff was included, but in short order, even the IRS seemed to concede the SDNY FARA investigation into CEFC (the one that would rely on Gal Luft’s interview) was not viable.

Exhibit 203: Draft of B[lue]S[star email] Warrant.

September 3-4, 2020 Attachment 2: September 3-4, 2023, Emails Between Joseph Ziegler, Lesley Wolf, cc’ing Carly Hudson, Jack Morgan, Mark Daly, Joshua Wilson, Susan Roepcke, Alyssa Ruisard, Antonino Lo Piccolo, Christine Puglisi, Stefania Roca, Michael Dzielak, Gary Shapley, and Joseph Gordon, Subject: Today’s Agenda. This is an incredibly helpful list of where key legal process stood:

  • 4 iCloud backups (Ziegler asked whether location data was necessary, which he and Shapley suggested was mandatory before)
  • Relevancy review of iPhone Backup (which tells you they were still scoping the phone when they got the iCloud warrants)
  • Search warrant for BlueStar (about which investigators disagreed in August)
  • Supplemental email search warrant (unclear on which account)
  • DropBox search warrant (which wouldn’t be served for some time, but which seems to have been an attempt to get emails they knew of but didn’t have)
  • Discussion of 2703-D orders (metadata) for two accounts belonging to Vadym Pozharskyi and one to Devon Archer; elsewhere Ziegler relies on the “laptop” for emails involving the two

The agenda also notes investigative developments involving SDNY (the FARA investigation), Pittsburgh (the FD-1023), and Comerica.

September 3-4, 2020: Memo of Meeting. At this meeting, there was a discussion of keeping Hunter Biden’s name off overt requests, to which Ziegler objected (as if he wanted it to be discovered). There’s a discussion of whether the investigation would continue or not after the election, which Wolf said it would. Wolf attributed sensitivities to Richard Donoghue. Note: Shapley doesn’t say who was involved in the follow-up call on September 4.

September 21, 2020 Attachment 3: September 21, 2020, IRS CI Memorandum of Conversation Between Gary Shapley and Mark Daly, Authored by Gary Shapley. This memorializes a meeting earlier that day in which Joe Gordon expressed uncertainty among FBI management about how many interviews they would participate in after the election. Lesley Wolf pushed back hard on this. This memo reflects double hearsay (Wolf to Mark Daly to Shapley) blaming Special Agent Josh Wilson for the reluctance on investigating Hunter, because he had just moved back to Wilmington with his family. Shapley also memorializes a call to his ASAC about the details. This is another instance where Wolf was pushing the investigation hard.

October 19, 2020 Attachment 5: October 19, 2020, Email from Gary Shapley to Lesley Wolf, Subject: Computer. This is an email Shapley read, in part, in his testimony, regarding IRS’ need to know what was going on with the laptop. Ironically, he notes that there may be specific disclosure limitations tied to the IRS warrant, a concern with which he has since dispensed.

October 21, 2020 Attachment 4: October 2, 2020, Emails Between Lesley Wolf, Joseph Ziegler, Gary Shapley, and George Murphy, Subject: Dates. This reflects ongoing discussion about when to do the day of action, in an attempt to avoid interviewing Hunter in Delaware, as opposed to LA. Lesley Wolf was again supportive of Shapley’s goals to do the interviews sooner rather than later.

October 21, 2020 Exhibit 210: October 21, 2020, Emails Between Jack Morgan, Lesley Wolf, cc’ing Mark Daly and Carly Hudson, Subject: Mann Act. Jack Morgan emails Lesley Wolf regarding nine communications, two with traffickers, that he says may support Mann Act exposure. In only two cases was the travel confirmed. There are no dates in this list. Three instances include travel to Massachusetts (and so might coincide with the apparent hijacking of Hunter’s digital identity while he was in Ketamine treatment).

October 22, 2020: Notes on laptop. As noted, Shapley wildly misrepresented what the notes on the laptop actually say. They show that 10 months after accessing the laptop, the FBI still hadn’t done basic things to validate the content on the laptop had not been tampered.

October 22, 2020 Attachment 6: October 22, 2020, IRS CI Memorandum of Conversation between Prosecution Team, Authored by Gary Shapley. Shapley records Wolf as saying that there would not be a warrant on the DE residence. He does not record why. He also records the briefing on the Pittsburgh lead, ordered up by PDAG (Donoghue). This meeting happened an hour after the laptop meeting, but Shapley treats it as a separate meeting (and doesn’t say who attended).

October 23, 2020 Exhibit 400A: Tony Bobulinksi FBI FD-302 Interview Memorandum. This interview happened on October 23, 2020; Bobulinski went straight from the White House to self-report at the FBI. He repeatedly refused to let the FBI image his phones. It certainly doesn’t help Bobulinski’s credibility as a witness.

October 23, 2020 Exhibit 400B: Attachment Tony Bobulinksi FBI FD-302 Interview Memorandum.

November 2-9, 2020 Attachment 7: November 8-9, 2020, Emails Between James Robnett and Kelly Jackson, cc’ing Michael DePalma, George Murphy, and Gary Shapley, Subject: 1 page brief needed. The day after networks called the election for Joe Biden, the Deputy Chief of IRS-CI ordered the team to put together a one-page summary of the Hunter Biden investigation, to be delivered to him by Tuesday, November 10.

November 9, 2020 Attachment 8: November 9, 2020, Email from Kelly Jackson to Gary Shapley, cc’ing George Murphy, Subject: Recipient of the 1 pager. Effectively, the IRS team checked how far this would circulate before drafting.

~November 9, 2020 Attachment 9: Sportsman Investigation, IRS CI One-Pager. This appears to be a draft, not the final, as there are inline questions and answers. This provides a good summary of where the investigation was, notes that the FARA investigation pertained to CEFC (and that investigators planned no overt steps). It also says that the plan was to do a consent search of the storage facility (and a residence, though it’s not clear which one), which puts the later dispute in context.

December 8, 2020 Exhibit 401: December 8, 2020, Transcribed Interview of John Robinson Walker.

December 8-9, 2020 Exhibit 204: December 8-9, 2020, Emails Between Joseph Ziegler, Lesley Wolf, Mark Daly, Carly Hudson, Jack Morgan, cc’ing Christine Puglisi and Gary Shapley, Subject: Storage Location Warrant. The discussion returns to a warrant for the storage facility outside of DC (in VA). Ziegler says he wants to execute it the following week. Wolf tries to explain that there will be too many approvals required and heavy filter requirements because the facility is in the Fourth Circuit.

December 10, 2020 Attachment 10: IRS CI Monthly Significant Case Report, Subject Name: Robert Hunter Biden, December 2020. This periodic report (Shapley only provided two, raising questions about whether there were others) includes the most substantive description of how the investigation was predicated off sex workers. Shapley bitches about Wolf forgoing the approvals and instead applying the subpoena to the storage facility (without noting that the initial plan was to do a consent search). He says that the only viable charges at that point were tax charges (meaning the SDNY FARA charges didn’t flesh out). This report also notes the election meddling allegations. Shapley also bitches that prosecutors aren’t responding to Congressional inquiries, a totally inappropriate stance, one he would repeat in a later report. He blames the December 2020 leak on DOJ, with no explanation. Unclear whether this really is dated December 10, before the December 11 call with Wolf.

December 11, 2020 Exhibit 205: Joseph Ziegler’s Notes re: Phone Call with Lesley Wolf About the Storage Unit Warrant. The notes of this call actually debunks several things Ziegler has claimed. Wolf notes that the normal way to interview Hunter would be to call his lawyers, but she worked hard to go through just Secret Service. She also notes that all lawyers involved agreed subpoenaing for the documents was the appropriate thing to do.

December 14, 2020 Attachment 11: December 14, 2020, Emails Between Kelly Jackson, George Murphy, and Gary Shapley, Subject: SM – call with DFO today. This escalated matters on the facility to Deputy Commissioner. At that point, one of the IRS people didn’t even knew how a taint would work after a search.

December 15, 2020 Attachment 12: December 15, 2020, FBI Electronic Communication, Title: Attempted Interview: Hunter Biden 12/08/2020. The 302 reflecting the non-interview of Hunter. Slightly over two hours later, Hunter’s lawyers contacted the FBI.

January 26, 2021 Exhibit 315A: January 26, 2021, Emails Between Joseph Ziegler, Stefania [redacted], and Carly Hudson, Subject: Can you send me the filter terms that have been used for Relativity? For some reason, Ziegler included these filter terms, which will be very helpful to Hunter’s lawyers. Notably, there were two sets of filters: tax and FARA, which may explain the source of Ziegler’s frustration that they didn’t get all results. At that point FARA was exclusively focused on Ukraine.

Exhibit 315B: Appendix A, Filter Keywords for Google Email.

Exhibit 315C: Appendix A – Laptop, Filter Keywords for Laptop Filter.

Exhibit 315D: Appendix A, Filter Keywords for Laptop FARA Filter.

February 5, 2021 Attachment 13: February 5, 2021, Emails Between Joseph Ziegler, Lesley Wolf, Carly Hudson, Joshua Wilson, Susan Roepcke, Michelle Hoffman, Antonino Lo Piccolo, Christine Puglisi, Stefania Roca, Michael Dzielak, Matthew McKenzie, cc’ing Joseph Gordon and Gary Shapley, Subject: Agenda 2/5 Meeting @ 12:30PM. This reflects Wolf and other lawyers briefing seemingly more than one AAG (unclear whether this is Acting, or Assistant, since no one was confirmed yet). Shapley was put out that NSD asked to be briefed on the tax side of the case.

April 27, 2021 Exhibit 1E: Transcript of Recorded IRS CI Interview with Jeffrey Gelfound, re: Hunter Biden Representation Letter and Discussion of Hunter Biden 2014 Tax Return. A fragment of an interview with Hunter’s accountant regarding a representation letter signed 3 months after the initial representation. Gelfound really didn’t seem as worked up about it as the IRS.

April 27, 2021 Exhibit 1F: Transcript of Recorded IRS CI Interview with Jeffrey Gelfound, re: Alleged Gulnora Deduction. The part of the Gelfound interview regarding how the sex worker came to be deducted.

April 27, 2021 Exhibit 1J: Transcript of Recorded IRS CI Interview with Jeffrey Gelfound, re: Hunter Biden’s Tax Payments. Gelfound suggested that the payments with a lien would be paid by Kevin Morris first, possibly because of publicity.

May 2021 Attachment 14: IRS CI Monthly Significant Case Report, Subject Name: Robert Hunter Biden, Month/Year of Report: May 2021. This notes the 2021 expiration of the 2014 tax year. It states that FBI is not sold on charging decision. It says FBI is actively involving FARA. And it claims there are campaign finance violations (pertaining to Kevin Morris paying off Hunter’s taxes), which Wolf wanted nothing to dø with, in part to avoid PIN involvement. She stated that 2014 could not yet be proved beyond a reasonable doubt, which is what she wanted them to focus on.

June 14, 2021 Exhibit 1G: Interview excerpt of Gulnora. This is the interview with the sex worker payments to whom Hunter deducted. She appears to have ties to the overseas escort service, so these payments could be the ones that triggered the entire investigation. Marjorie Taylor Greene misrepresented this interview in her campaign to turn Hunter into a sex trafficker.

September 9, 2021 Exhibit 208: September 9, 2021, Email Between Joseph Ziegler, Lesley Wolf, Stefania Roca, cc’ing Carly Hudson, Jack Morgan, Mark Daly, Christine Puglisi, Michelle Ann Hoffman, Susan Roepcke, and Joshua J. Wilson, re: Frustrations with Interview Delays. Ziegler complains that some interviews with sex workers have to be put off because DOJ Tax is still approving, among other things, a subpoena for Hunter’s lawyer George Mesires.

September 10-24, 2021 Attachment 15: September 10-24, 2021, Emails Between Gary Shapley and Jason Poole, Subject: Quick Call. Shapley’s own supervisor was blowing him off too, but he did follow-up twice to complain about approvals.

September 20, 2021 Exhibit 209: September 20, 2021, Emails Between Mark Daly and Joseph Ziegler, Subject: Re: email sent to mgmt with list of 10 [redacted]. Mark Daly gets involved and seems to move these forward.

September 20, 2021 Attachment 2: September 20, 2021, Emails Between Joseph Ziegler, David Denning, Christine Puglisi, Darrell Waldon, and Gary Shapley, Subject: Travel. Here Ziegler lashes out at his own supervisor, who suggests he send a “collateral” to do interviews in LA, rather than doing them himself. Contrary to wanting to go overt in the past, he claims he is trying to keep things quiet. Ziegler writes that this is “a case I’ve worked with very little problems and only support from my management, you’re making it hard for me to do my job” (though he may have only been referencing the IRS side).

September 20, 2021 Attachment 3: September 20, 2021, Emails Between Joseph Ziegler, David Denning, Christine Puglisi, Michael Batdorf, and Gary Shapley, Subject: Travel. Ziegler escalates to Mike Batdorf. He notes, “I don’t want to put some details in this email” and also says he’s only cc’ing Shapley “because I’ve briefed him on what has happened and because he’s been my management since day 1,” which is of course false.

September 22, 2021 Exhibit 506: September 22, 2021, Emails Between Justin Cole, James Lee, James Robnett, Michael Batdorf, Darrell Waldon, and Joseph Ziegler, Subject: Sensitive Case Heads Up. CNN reached out to IRS and said they had a recent witness saying the case was almost wrapped up, claiming to having a Hunter email saying that all this would go away when his dad became President, claiming there was a plea deal. Batdorf gets the question, sends it to Ziegler, he asks if he can share with the lawyers. Batdorf asks not to share the CNN side, even though they regularly share media reports. Ziegler reports back that Wolf said no plea had been offered.

September 20-23, 2021 Exhibit 507: September 20-23, 2021, Emails Between Joseph Ziegler, David Denning, Christine Puglisi, Michael Batdorf, and Gary Shapley, Subject: Travel. Batdorf follows up again and Ziegler says “It seems to have been a miscommunication from my senior management. … I had a significant amount of trust in my prior management, and for some reason, that has gone away.”

November 16, 2021 Exhibit 1H: IRS CI Memorandum of Interview with Jeffrey Gelfound on November 16, 2021.J

November 23, 2021 Exhibit 402: John Robinson Walker FBI FD-302.

December 20, 2021 Exhibit 200: December 20, 2021, Email from Lesley Wolf to Mark Daly, Jack Morgan, Carly Hudson, Matthew McKenzie, Joseph Ziegler, Christine Puglisi, Antonino Lo Piccolo, Susan Roepcke, Michelle Ann Hoffman, Michael Dzielak, Stefania Roca, Joseph Gordon, and Joshua Wilson, Subject: Thank you! Wolf gives extra credit to Ziegler for all his work.

January 12, 2022 Attachment 16: Notes from January 12, 2022, Sportsman Call. Wolf gives good legal reasons not to pursue the campaign finance investigation, notably that the law is uncertain and the facts are even more attenuated here than they were for John Edwards. She doesn’t want to involve PIN because it would add another level of approval.

Janaury 27, 2022: Prosecution Memo. As described in Shapley’s testimony, this document is what goes through a series of approval processes.

February 15, 2022 Attachment 17: February 15, 2022, Email from Gary Shapley to Darrell Waldon, cc’ing Lola Watson, Subject: For Review/Approval: Sensitive T26 Prosecution Recommendation – SPORTSMAN – SA Ziegler. This was Shapley’s rebuttal to CT’s non-concur on prosecution, based on Hunter’s addictions. Though Shapley (and especially Ziegler) has elsewhere stated clearly that Hunter was totally incapacitated in this period, Shapley now claims, “the universe of his conduct clearly indicated he was lucid during his periods of insobriety and therefore a blanket lack of willfulness defense to the pattern of conduct is not reasonable nor logical.”

May 13, 2022 Attachment 18: May 13, 2022, Email from Gary Shapley to Michael Batdorf and Darrell Waldon, which Gary Shapley Forwarded to Joseph Ziegler and Christine Puglisi, Subject: Sportsman – 3rd DOJ Tax – Taxpayer Conference Delayed. Because of a delay in the tax conference at which the prosecution recommendation would be presented, Shapely pitches briefing Jason Poole and David Weiss on it in advance.

June 14-15, 2022 Exhibit 314: IRS CI Presentation re: Sportsman Investigation “Robert Doe,” Tax Summit, June 14-15, 2022. This is the slide deck presenting the case. Most of it — three pages — describe spin-off investigations. It shows the main remaining steps were to establish venue somewhere besides Delaware and get discovery production; at this moment, Shapley was refusing to turn over discovery production to DOJ.

June 30, 2022 Exhibit 1K: June 30, 2022, Email from Matthew Salerno to Mark Daly, Lesley Wolf, Carly Hudson, Jack Morgan, cc’ing Chris Clark, Brian McManus, and Timothy McCarten, re: 2018 Tax Defenses Proffered, wh ich Mark Daly Forwarded to Joseph Ziegler, Michelle Ann Hoffman, Christine Puglisi, and Michael Dzielak. This is Mark Daly forwarding Hunter’s lawyers’ rebuttal on some of the 2018 deductions, explaining while none of Hunter’s efforts to develop businesses worked, he was attempting. Ziegler has claimed there’s contrary evidence (from James Biden) in the record, but none of that is definitive and James Biden testified his memory wasn’t great on the matter.

June 21-28, 2022 Exhibit 201: June 21-28, 2022, Emails Between David Weiss, Joseph Ziegler, and Gary Shapley, cc’ing Lesley Wolf, Carly Hudson, Jack Morgan, and Mark Daly, Subject: Sportsman Request. After thanking Ziegler for all his work, Weiss asks IRS to have a revenue agent rerun all the loss numbers for 2014 and 2015. He asks for that, first, because that’s what is normally done, and second, because, “at trial we are going to need a testifier on this issue and that testifier can’t be Joe.” While Ziegler ultimately complied with Weiss’ request, Ziegler first appears to have redone the analysis himself. This email will give Hunter’s attorney cause to question the revenue analyst about Ziegler’s role in these numbers, if this ever gets charged.

July 29, 2022 Attachment 19: Notes from July 29, 2022, Sportsman Call. This includes details of the state of the investigation, including mentions of approval for a new prong of FARA investigation, with references to SDNY (CEFC) and Romania. The outstanding witnesses include George Mesires and family members, including James Biden (and possibly Hallie Biden, though that’s redacted), though an August 18 email lists Mervyn Yan among those left to be interviewed. Wolf clearly tells the team that if they don’t indict by September, it’ll be after November. She clearly says that prosecution decision will be collaborative with DOJ Tax. She clearly says she’s not inclined to toll the 2014 and 2015 tax years ago. In short, she clearly communicates, in July, all the things that the IRS agents claim were surprises in October.

August 5-8, 2022 Exhibit 503: August 5-8, 2022, Emails Between Joseph Ziegler and Lesley Wolf, Subject: Meeting with David. Wolf sets up an August 16 meeting that it appears Ziegler requested, at which only Weiss will be present from DOJ. She requests he run numbers on an early undetermined issue. Ziegler says he’s working with revenue agent — the one Weiss asked to involve in June — on that. Wolf is again warm with Ziegler.

August 11, 2022 Exhibit 501: August 11, 2022, Emails Between Mark Daly, Joseph Ziegler, Christine Puglisi, Michael Dzielak, Michelle Ann Hoffman, Susan Roepcke, cc’ing Jack Morgan, Carly Hudson, and Lesley Wolf, Subject: Meeting. An internal IRS meeting about charging decisions that would precede the meeting with Weiss.

August 12, 2022 Exhibit 502: Calendar Invitation, Subject: Sportsman – Call re Charging, Organized by Mark Daly, Required Attendees: Michael Dzielak, Michelle Ann Hoffman, Susan Roepcke, Jack Morgan, Carly Hudson, Joseph Ziegler, and Christine Puglisi, Scheduled for August 12, 2022. The tax meeting on charging decisions.

August 15-18, 2022 Attachment 4: August 15-18, 2022, Email Between Gary Shapley, Michael Batdorf, and Darrell Waldon, Subject: Sportsman Update. Shapley telling his supervisors that Weiss was still not inclined to charge 2014 and 2015. One of his complaints is that if 2104 and 2015 weren’t charged, it would take the Burisma stuff off the table, which doesn’t sound like a tax decision. He’s still worried about not collecting that revenue, though the revenue is not that much (even if you believe him about what was owed). He claimed that Weiss mocked CT’s non-concurrence, but DOJ Tax does seem to side with not charging some of this. Shapley also claimed that the reason he was only learning venue on CA was through lack of transparency, except that’s totally consistent with what Wolf had said earlier: You decide charges first, then venue.

August 15-18, 2022 Attachment 20: August 15-18, 2022, Emails Between Gary Shapley, Michael Batdorf, and Darrell Waldon, Subject: Sportsman Update. This appears to be a dupe.

August 18, 2022 Exhibit 211: August 18, 2022, Email from Mark Daly to Joseph Ziegler, Michael Dzielak, Michelle Ann Hoffman, Christine Puglisi, Lesley Wolf, and Carly Hudson, cc’ing: Jack Morgan, Jason Poole, and John Kane, Subject: Going forward. At this point, the three remaining interviews were Mesires, Merv[y]n Yan, and James Biden.

August 25, 2022 Attachment 21: August 25, 2022, Emails Between Garret Kerley and Lesley Wolf, cc’ing Joseph Ziegler and Mark Daly, Subject: Case Coordination. The FBI SSA (who may have replaced Joe Gordon) complains they’re not communicating enough between meetings and asks to start an email chain. Wolf asks him to stand down until they can meet — clearly an effort to avoid creating discoverable information. Shapley turns it into a Memo for his files.

September 20 – November 8, 2022 Attachment 29: September 20, 2022, Emails Between Gary Shapley, David Weiss, and Darrell Waldon, Subject: SM Meeting – Management. On September 20, Shapley asks for a quick call. Weiss responds that he would set up a meeting/call for updates in near term (what would end up being the October 7 meeting). Then on November 8, after the prosecution meeting is canceled, Shapley attempts to set up a meeting in December. Shapley then writes back on November 8 saying the FBI can’t make it on December 2, so asks Weiss to confirm that December 5 would work.

September 22, 2022 Attachment 22: Notes from September 22, 2022, 2:30PM, Conversation, at which Lesley Wolf and Mark Daly are Present. Shapley notes that Wolf and Daly both joined late but doesn’t say how late. He describes that the US Attorney (whom he refers to as “her” but has to be a reference to Martin Estrada, who was just confirmed on September 19) has only been sworn in and will need time to get up to speed. DOJ Tax also wanted to defer the charges until after the election. And DE’s finance guy had a number of remaining questions.

September 22, 2022 Attachment 23: September 22, 2022; 3:33PM ff, Email from Gary Shapley to Michael Batdorf, Subject: Conversation with Batdorf Michael T. Shapley texts Batdorf, then emails the texts, complaining about the decision to wait until after the election.

September 22, 2022 Attachment 5: September 22, 2022, 5:28 PM Email from Gary Shapley to Darrell Waldon, Lola Watson, and Michael Batdorf, Subject: SM Update. Shapley tells his supervisors that Wolf said they wouldn’t charge until after the election. Shapley complains that, “the statement is inappropriate let alone the actual action of delaying as a result of the election.” He claims ther are other items (which he doesn’t lay out) “that are equally inappropriate,” probably that they weren’t going to charge the gun charge in October. Shapley was told months ago about this, but is wailing now.

September 22, 2022 Attachment 24: September 22, 2022, Email from Gary Shapley to Michael Batdorf, Darrell Waldon, and Lola Watson, Subject: SM Update. This appears to be a dupe, with the news he had a doctor’s appointment redacted.

September 21-October 6, 2022 Attachment 25: September 21-October 6, 2022, Emails Between Shawn Weede, Ryeshia Holley, and Gary Shapley, cc’ing Garret Kerley and Lesley Wolf, Subject: Call on Charging Timeline. This is a thread between Shawn Weede, Ryeshia Holley (whose name the FBI tried hard to keep obscure), Gary Shapley, about setting up the meeting he wanted. Because he was in the Netherlands the last week of September they instead waited until he returned. Shapley sent out his list of agenda items, showing clearly that he came into the October 7 meeting with an agenda — listing “1. Special counsel 2. election deferral comment – continued delays 3. venue issue”. — and a wildly mistaken understanding of how Special Attorney status works. At 4:34PM, two hours after the WaPo story posted, she says the meeting will include, “Anything further that develops by tomorrow.”

September 21 – October 6, 2022 Attachment 1: September 21-October 6, 2021, Emails Between Shawn Weede, Ryeshia Holley, Gary Shapley, cc’ing Garret Kerley and Lesley Wolf, Subject: Call on 2 Timeline. This shows the last two emails to the earlier thread.

September 28-29, 2022 Exhibit 504: September 29, 2022, Emails Between Joseph Ziegler, Darrell Waldon, and Gary Shapley, cc’ing Lola Watson and Michael Batdorf, Subject: Sportsman. Darrel Waldon writes to note he requested a meeting with the US Attorney’s office. Ziegler notes he’s awaiting information about CDCA’s decision on charging 2017-2019. Hours later, Waldon asks him to call his cell. Seemingly after that call, Ziegler responds that, “we also need to request the presentation of 2014 and 2015 to the criminal chief / US attorney in DC.” This seems to be inconsistent with past claims about when and how closely DC USAO reviewed this case.

September 29, 2022 Exhibit 401: IRS CI Memorandum of Interview with James Biden on September 29, 2022. Ziegler has pointed to this interview — “James B was not sending RHB any deals while he was out in California.  … conversations were about getting RHB well at this point and not about business” — as proof that Hunter’s lawyers were lying about his attempts to do business in 2018; yet Hunter’s uncle made clear that he kept trying to engage him and also noted that his memory was not all that clear. The interview also raises questions about Tony Bobulinski’s motives and credibility (as Rob Walker already had). The interview timing is as important as anything else — Shapley went on a tear about the timing of charging before this key interview was even done.

October 6, 2022 Attachment 26: October 6, 2022, Emails Between Gary Shapley, Michael Batdorf, and Darrell Waldon, Subject: Sportsman. After responding to Holley, Shapley alerts his supervisors of the Devlin Barrett story that he would later claim he didn’t know where it was published, noting that it is likely to come up at the meeting the next day. He identifies that the leak was “purportedly from the ‘agent’ level, reveals he spoke with the IRS press person about it, and stated, “I have no additional insight that is anything but a rumor.” This marks the third or fourth inconsistent representation of Shapley’s knowledge of the leak.

October 6, 2022 Exhibit 505: October 6, 2022, Emails Between Joseph Ziegler and Carly Hudson, Subject: Sportsman Uncle question. One of the AUSAs tells Ziegler that Weiss asked about something Ziegler raised, and he states that DOJ-Tax didn’t expect the case to be indicted until 2023, as they were still working on approvals. Hudson sends the email at 10:07AM; Ziegler responds at 6:51PM. I find it exceedingly unlikely Shapley did not also know that the case would not be indicted until 2023.

October 7, 2022: Handwritten notes. As noted these notes show that Shapley misrepresented what David Weiss said and introduced the DC USAO review that would be mooted by the decision not to charge 2014 and 2015, something Shapley had been alerted to months earlier.

October 7-11, 2022: Shapley to Darrell Waldon. The original email Shapley shared, which makes it clear the meeting was dominated by the leak.

October 7-11, 2022 Attachment 6: October 7-11, 2022, Email Between Gary Shapley, Michael Batdorf, and Darrell Waldon, Subject: Sportsman Meeting Update. This adds Mike Batdorf’s response to both Shapley and Waldon, 3 hours after Waldon said he’d handle the referral to TIGTA.

November 7, 2022 Attachment 27: November 7, 2022, Notes, Subject: Telephone Call from FBI Special Agent Mike Dzielak and IRS-CI Case Agent Joe Ziegler. A 10-minute call in which an FBI Special Agent discusses with Shapley and Ziegler that DE USAO was asking for management level emails. Dzielak suggests that the FBI was balking, in the same way that Shapley still was. Shapley offered up that this was proof that DE USAO had no intention of charging, which is utterly debunked by the fact that they had made this request once before (he says in April-May here, but in his House Ways and Means testimony he said it was in March). There’s no mention of the leak.

November 8-10, 2022 Attachment 28: November 8-10, 2022, Emails Between Gary Shapley and Ryeshia Holley, Subject: Next Meeting in Delaware. This reflects Shapley’s immediate effort to schedule a December meeting after the November prosecution meeting was canceled. One reason he did so was because of the request for his own emails.

December 13, 2022: Shapley email to Michael Batdorf. This is the email where Shapley asked Batdorf to ask him if he had any questions about the emails that got turned over.

December 13-16, 2022 Attachment 30: December 13-16, 2022, Emails Between Gary Shapley, Michael Batdorf, and Darrell Waldon, Subject: Meeting at Del USAO Today. Shapley emails Batdorf and Waldon to tell them that prosecutors and the FBI had an all-day meeting in Wilmington. Waldon asks if anyone from Tax participated.

January 6, 2023 Attachment 7: January 6, 2023, Notes, re: Call between Gary Shapley and Michael Batdorf on Whistleblowing. Shapley memorializes an either 8- or 13-minute call with Mike Batdorf, alerting him that on January 4, he lawyered up with “whistleblower” counsel. He gave a weird pitch (including that he would criticize the IRS, but that the IRS could boast that it was an IRS agent who “came forward.” Shapley claimed he would attend to 6103 and 6e matters he has not — including getting approval before sharing. He specifically left out the Senate Finance Committee. And he admitted that he expected DOJ to make “nefarious” allegations against him but hoped the IRS would support him. Batdorf said he hadn’t heard of any allegations.

January 20, 2023 Attachment 8: January 20, 2023, Emails Between Gary Shapley, Michael Batdorf, Darrell Waldon, and Lola Watson, Subject: Discussion – Sportsman. In the guise of finding out what was expected of him, Shapley claimed that FBI investigators had been brought back on the Hunter Biden case (which he learned via Ziegler).  He also noted that a third FBI Agent on the team retired before mandatory retirement. Waldon corrects Shapley that the FBI agents met with DE USAO on other issues, but only inquired about Hunter Biden.

January 25-February 10, 2023 Attachment 9: January 25-February 10, 2023, Email Between Gary Shapley and Michael Batdorf, Subject: For Review/Approval: Administrative Leave Request for Protected Whistleblower Activities – Shapley. Shapley asks Batdorf for paid leave for meetings, including with Congress, months before any overt meetings with Congress happened (suggesting he may have met with Grassley). Batdorf not only gives him leave but offers to pick up his work to enable it. Shapley offers to document with whom he was meeting (which given that this request preceded most overt outreach by months, would have been really helpful), but Batdorf says that’s not necessary.

April 13, 2023 Exhibit 212: April 13, 2023, Email from Joseph Ziegler to Lola Watson, cc’ing Gary Shapley, Subject: Sportsman. Ziegler updates Lola Watson (but not Kareem Carter), about meetings Hunter’s lawyers are having, including with Brad Weinsheimer (which leaked). He claims, without evidence, that Weiss was responding to the Merrick Garland testimony. And he addresses two investigations (which involves someone whose taxes would have implications for Hunter Biden — possibly Kevin Morris, would be consistent with Ziegler’s testimony) from which his team has been excluded.

Attachment 31: May 15, 2023, Notes from Conference Call with Kareem Carter, Lola Watson, Gary Shapley, and Joe Ziegler, Re: Sportsman. Memorialization of 17-minute call on which Kareem Carter took the International Tax team off the Hunter Biden case. Some of Shapley’s claims (such as that he documented complaints going back ot June 2020) are not substantiated in the emails released. And he was downright insubordinate on the call. Importantly, his memorialization does not reveal that Ziegler was not invited on the call, and in fact falsely suggests that Ziegler received an invitation to the call.

May 18, 2023 Exhibit 213: May 18, 2023, Email from Joseph Ziegler to Douglas O’Donnell, Daniel Werfel, James Lee, Guy Ficco, Michael Batdorf, Kareem Carter, and Lola Watson, Subject: Sportsman Investigation-Removal of Case Agent. Joseph Ziegler’s email in which he acknowledges breaking chain of command to complain about his removal.

Gary Shapley Didn’t Tell Congress about Election Meddling Concerns

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I’m reading my way through the documents from Gary Shapley and Joseph Ziegler that the House Ways and Means Committee released the other day.

While I have yet to read the tax-related documents closely, the others don’t help the evidence-free impeachment much, undoubtedly complicate David Weiss’ hopes of charging Hunter Biden on tax crimes, and probably give Abbe Lowell a stash of documents he would otherwise not have gotten, some of which show investigative sloppiness and potential evidentiary problems for any case Weiss does charge (again, some of which Lowell would otherwise never have gotten).

Plus, some of the documents undermine the Agents’ claims to be whistleblowers. The documents show they had advance notice of both Delaware’s decision to decline prosecution of the 2104 and 2015 tax years and of the timing of any prosecution. They show Shapley walked into a key October 7, 2022 meeting with a chip on his shoulder and an agenda entirely at odds with his knowledge of declination and timing. From that point forward, phantoms of Shapley’s paranoia, not facts, appear to have driven his actions.

For now, though, I want to point to two details that utterly destroy Shapley’s complaints about delays in 2020. It has always been the case that most of Shapley’s complaints about politicization (besides his own) pertained to events that happened under the Trump Administration. Indeed, that’s something that Jason Smith struggled to address at his own presser the other day: how events from 2020 could support the impeachment of Joe Biden.

But details in two documents Shapley sent in late 2020 reveal that during his entire media tour, Shapley has been withholding a key detail that make these complaints all the more ridiculous.

The first is what must be a draft (since it is not dated and includes editorial questions) one page summary of the investigation written for the IRS Deputy Commissioner around November 9, 2020. It explained (as other documents the IRS agents did too) that after the IRS got a Suspicious Activity Report regarding a UK porn site that wasn’t reporting income to US-based contractors, one of whom Hunter Biden had also paid as an escort, the IRS used that to start pulling Hunter’s tax returns, an initial predication that is going to be comedy gold in any opening arguments Abbe Lowell ever gives at a Hunter Biden trial. It also revealed (again, this gets mentioned in other documents) that there was a FARA investigation out of New York regarding Hunter’s ties to CEFC. Finally, the document attributed any pre-election guidance not just to David Weiss’ office, but also to DOJ Tax and the Deputy Attorney General’s office.

To date no proactive interviews have occurred as a result of guidance provided to the investigative team by the USAO in Delaware, DOJ Tax PDAG and the Deputy Attorney General’s office.

We’ve known of the Deputy Attorney General’s involvement since Shapley’s transcript was first released, which described that the guidance involved Richard Donoghue. Shapley has nevertheless blamed Weiss’ office for these delays ordered by Bill Barr’s top deputies, and Smith even blamed Lesley Wolf personally.

But the centrality of the DAG’s office in such delays is important background to a report filed on December 10, 2020 — which shows that its author (it’s not entirely clear who wrote this, but Shapley provided it) was upset that investigators weren’t improperly sharing information with Congress even then — attributes any delays in the investigation to concerns about election interference.

This investigation has been hampered and artificially slowed by various claims of potential election meddling. Even after the election, our day of action to go overt was delayed more than two weeks.

The memo clearly dismisses those claims, which suggests whoever wrote it thinks they know better than FBI counterintelligence investigators. But it also ignores someone else who knows better about known efforts by Russia to use Hunter Biden as a campaign prop: Donoghue. In February 2020, when he was US Attorney for EDNY, Bill Barr ordered him to serve as a gatekeeper for any investigation implicating Ukraine. This was a specific effort to prevent the SDNY investigation into Rudy Giuliani to pursue Rudy’s efforts to fetch dirt, including a laptop!!, from Andrii Derkach in December 2019.

But starting in July, Donoghue swapped places with Seth DuCharme, becoming the Principal Assistant Deputy Attorney General, where he proceeded to issue guidance to delay any overt investigative steps in the Hunter Biden investigation. In other words, the orders to delay overt steps until after the election would have involved someone who knew as well as anyone in government that the effort to exploit Hunter Biden’s relationship with Burisma involved a plot coordinated with known Russian agents.

But over the course of a four month media blitz, Gary Shapley — represented by people close to Chuck Grassley, who of late has been pushing this Russian information operation himself — suppressed the fact that DOJ had concerns, concerns that manifested in multiple Treasury sanctions afterwards, that the effort to focus attention on Burisma was orchestrated by Russia, Ukranian agents of Russia, and Donald Trump’s own efforts to solicit dirt whereever he could.

Twice yesterday, Republicans refused to vote on Democratic requests that James Comer subpoena Rudy (the first request included a request to subpoena Lev Parnas as well). Yet this detail from Shapley — and his suppression of it for four months — makes a Rudy subpoena all the more important.

“Reasonable Persons:” Trump’s Recusal Stunt Flops

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Yesterday, Judge Tanya Chutkan denied Trump’s motion for her recusal.

Chutkan’s order was judicious, clinical, and never once responded to the ridiculous claims John Lauro made in his bid to remove a Black woman judge. In other words, it is a model of judicial temperament, and so will hold up under any appeal.

For example, rather than laying out how much video she had seen implicating Trump in the violence and lawlessness of January 6, Chutkan simply corrected the error Trump’s lawyers had made when they falsely claimed she had seen no video on which to base her comments in Chrstine Priola’s sentencing, and so (they insinuated) had formed opinions based on what she had seen on the news.

The statements at issue here were based on intrajudicial sources. They arose not, as the defense speculates, from watching the news, Reply in Supp. of Mot. for Recusal, ECF No. 58 at 4 (“Reply”), but from the sentencing proceedings in United States v. Palmer and United States v Priola. The statements directly reflected facts proffered and arguments made by those defendants. And the court specifically identified the intrajudicial sources that informed its statements.

[snip]

The court also expressly based its statements in Priola’s sentencing on the video evidence presented earlier in the hearing. Priola Sentencing Tr. at 11– 14, 29. Priola. The statements directly reflected facts proffered and arguments made by those defendants. And the court specifically identified the intrajudicial sources that informed its statements.

Here’s the proof, from the sentencing transcript Trump’s attorneys cited themselves, that prosecutors entered the video that Trump’s lawyers claimed they couldn’t find into evidence.

As we’ve discussed, I would like to play seven video clips which the government feels are the best evidence of the defendant’s conduct that day. The clips total about ten minutes. Each was an exhibit to the government’s sentencing memorandum. Before I play each clip, I’ll just preview a little bit about what each clip shows.

[Introduction of each of 6 videos, including notation that the videos were played.]

THE COURT: There’s no Exhibit 6. Is that right?

MS. ZIMMERMAN: No. That was a mistake, Your Honor.

THE COURT: Okay.

(Video played.)

[snip]

Does the Court have any questions about any of the videos?

THE COURT: No. Thank you.

Having established that the comments about which Trump complained arose in the course of her role as a judge, Chutkan described that she was obligated to directly address the bids that Robert Palmer and Christine Priola made for a downward departure because they were not as culpable as Trump.

To begin, the court’s statements reflect its obligation to acknowledge Palmer and Priola’s mitigation arguments on the record. As already noted, both defendants sought a lower sentence on the grounds that their culpability for the January 6 attack was lesser than that of others whom they considered to be the attack’s instigators, and so it would be unfair for them to receive a full sentence while those other people were not prosecuted. See supra Section III.A. The court was legally bound to not only privately consider those arguments, but also to publicly assess them. By statute, every judge must “state in open court the reasons for its imposition of the particular sentence.” 28 U.S.C. § 3553(c). For every sentence, the court must demonstrate that it “has considered the parties’ arguments,” Rita v. United States, 551 U.S. 338, 356 (2007), including a defendant’s arguments that their case involves mitigating factors that should result in a lower sentence, United States v. Pyles, 862 F.3d 82, 88 (D.C. Cir. 2017). That is what the court did in those two cases. A reasonable person—aware of the statutory requirement that the court address the defendant’s arguments and state its reasons for its sentence—would understand that in making the statements contested here, the court was not issuing vague declarations about third parties’ potential guilt in a hypothetical future case; instead, it was fulfilling its duty to expressly evaluate the defendants’ arguments that their sentences should be reduced because other individuals whom they believed were associated with the events of January 6 had not been prosecuted.

While Chutkan’s comment about what a “reasonable person” should know given sentencing obligations might be a dig at Trump’s lawyers’ claimed ignorance of this basic fact, it nevertheless adopts the standard for recusal: not what a defense attorney feigning ignorance might argue, but instead what a reasonable person might understand.

Chutkan similarly noted that Trump’s team had to adopt a “hypersensitive, cynical, and suspicious” in order to interpret her factual statements as if they necessarily addressed Trump himself.

But the court expressly declined to state who, if anyone, it thought should still face charges. It is the defense, not the court, who has assumed that the Defendant belongs in that undefined group. Likewise, for the sentencing hearing in Priola, the defense purports to detect an “inescapable” message in what the court did not say: that “President Trump is free, but should not be.” Id. at 2 (emphasis added). The court did state that the former President was free at the time of Priola’s sentence—an undisputed fact upon which Priola had relied for her mitigation argument—but it went no further. To extrapolate an announcement of Defendant’s guilt from the court’s silence is to adopt a “hypersensitive, cynical, and suspicious” perspective rather than a reasonable one. Nixon, 267 F. Supp. 3d at 148.

Again, this opinion should be rock solid in the face of appeal, even if it won’t impress those of “hypersensitive, cynical, and suspicious” disposition.

This opinion addresses what reasonable people should understand and believe. It certainly won’t persuade Trump’s groupies, because they are not reasonable people. But it soundly addresses the standard for recusal and the actual evidence before Chutkan.

Republicans Plan to Declare Trump’s Entire Business Model a High Crime and Misdemeanor

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The Republicans have decided that the perfect time to kick off an impeachment is just before their own incompetence leads to a government shutdown, which will lead to millions of government workers and service members either getting laid off, or working without pay, will strain food support for poor families and limit food inspections, and will result in holdups for people traveling by air.

The GOP really does plan to launch a no-evidence impeachment while Rome burns.

Yesterday, House Ways and Means released another document dump from purported whistleblowers Gary Shapley and Joseph Ziegler. I’m wading through those now, but even a cursory review shows that Shapley makes claims that go beyond what his colleagues backed, at times delving into bad faith.

In advance of a hearing featuring Fox News pundit Jonathan Turley, Republicans released their justification for an impeachment inquiry.

It is nothing short of batshit insane.

That’s true, first of all, because they plan to impeach Joe Biden for actions his son took while Joe wasn’t even in government. One of their latest new fetishes is that in 2019, Hunter Biden used his father’s address as a permanent address and got legal financial transfers at it.

Again, much of this impeachment is about Joe Biden being a Dad.

Crazier still, the premise of this impeachment is that Hunter Biden traded on the family brand and he and his associates (including James Biden, but also a bunch of people who made far more money) made a paltry $24 million by doing so.

In other words, just days after a judge ruled that Trump and two of his sons had wildly inflated his own value — including by adding a brand premium to his properties!!! — continuing into the years he was President, Republicans want to impeach Joe Biden because business interests Joe Biden wasn’t part of tried to do that on a far, far smaller scale.

Republicans are impeaching Joe Biden because his son had business interests with a Chinese company, the most salacious interactions of which occurred the year after the Obama Administration, even though Trump’s own daughter benefited from her own family’s brand and her nepotistic job in the White House to obtain trademarks from the government of China during some of the same years.

The Chinese government granted 18 trademarks to companies linked to President Donald Trump and his daughter Ivanka Trump over the last two months, Chinese public records show, raising concerns about conflicts of interest in the White House.

In October, China’s Trademark Office granted provisional approval for 16 trademarks to Ivanka Trump Marks LLC, bringing to 34 the total number of marks China has greenlighted this year, according to the office’s online database. The new approvals cover Ivanka-branded fashion gear including sunglasses, handbags, shoes and jewelry, as well as beauty services and voting machines.

The approvals came three months after Ivanka Trump announced she was dissolving her namesake brand to focus on government work.

China also granted provisional approval for two “Trump” trademarks to DTTM Operations LLC, headquartered at Trump Tower on Fifth Avenue in New York. They cover branded restaurant, bar and hotel services, as well as clothing and shoes.

And Trump’s own tax returns — released after a years-long fight — revealed that in the same year Republicans are obsessing about Hunter over, 2017, Trump’s company made $17.5 million in China, far more than Hunter made personally during this entire period.

Mr. Trump’s plans in China have been largely driven by a different company, Trump International Hotels Management — the one with a Chinese bank account.

The company has direct ownership of THC China Development, but is also involved in management of other Trump-branded properties around the world, and it is not possible to discern from its tax records how much of its financial activity is China-related. It normally reports a few million dollars in annual income and deductible expenses.

In 2017, the company reported an unusually large spike in revenue — some $17.5 million, more than the previous five years’ combined. It was accompanied by a $15.1 million withdrawal by Mr. Trump from the company’s capital account.

Republicans want to make the bread and butter of Trump’s corporate existence a High Crime and Misdemeanor.

Democrats should use this opportunity to show that Trump is the one who should have been under a five year tax investigation, Trump is the one who should be impeached for using his position in the White House to enrich himself, his daughter, and her spouse.

In an interview after yesterday’s House Ways and Means roll out, Richard Neal raised several problems with the impeachment inquiry. Notably, Ways and Means Chair Jason Smith — who was humiliated at his own press conference yesterday — has never made a 6103 request to the IRS to officially release these documents, as Neal himself did in the protracted effort to get Trump’s tax returns. It’s not clear any of this — especially Shapley and Ziegler going back to get files from IRS servers after they have been removed from the investigation — is legal.

As families face severe financial crisis because of Republican incompetence, Kevin McCarthy, Jim Jordan, James Comer, and the recently-humiliated Jason Smith are going to pursue an impeachment premised on the notion that Trump’s entire business model is a High Crime and Misdemeanor.

“They Were Trying to Boot the Machine:” John Paul Mac Isaac Claims the FBI Really WERE That Incompetent

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If you can believe John Paul Mac Isaac, the FBI did some incredibly bone-headed things after they obtained Hunter Biden’s laptop in December 2019. As he describes it in his book (which I read recently while stuck in a hospital awaiting foot surgery), on the very same day the FBI collected the laptop purported to belong to Hunter Biden, on December 9, 2019, someone named “Matt” told Mac Isaac they had tried to boot it up.

“Hi, my name is Matt,” said a voice I didn’t recognize. “I work with Agent DeMeo and Agent Wilson. Do you have a second? I have some questions about accessing the laptop.”

Confused, I responded, “Sure, what’s going on?”

“Did the laptop come with any cables or a charger? How can I connect the drive to a PC? When I plug it in, it wants to format the drive,” Matt said.

“PCs can’t natively read Mac-formatted disks. You will only be able to access the drive from another Mac.”

This is fairly common knowledge among most computer users, and I was surprised that any kind of tech person wouldn’t know it.

“Sadly, Hunter never left the charger or any other cables,” I went on. “I have a charger and everything you need back at the shop. You guys are welcome to it.”

I was feeling really uncomfortable. This Matt guy definitely didn’t seem to have the training or resources to be performing a forensic evaluation of the laptop. Hadn’t the whole reason for taking the laptop been to get it to a lab for proper evaluation and dissemination?

“Tell him we’re OK and we won’t need to go back to his shop,” Agent DeMeo said in the background. “We’ll call you back if we need to,” Matt said before hanging up.

[snip]

“Hi, it’s Matt again. So, we have a power supply and a USB-C cable, but when we boot up, I can’t get the mouse or keyboard to work.”

I couldn’t believe it—they were trying to boot the machine!

“The keyboard and trackpad were disconnected due to liquid damage. If you have a USB-C–to–USB-A adaptor, you should be able to use any USB keyboard or mouse,” I said. He related this to Agent DeMeo and quickly hung up.

Matt called yet again about an hour later.

“So this thing won’t stay on when it’s unplugged. Does the battery work?”

I explained that he needed to plug in the laptop and that once it turned on, the battery would start charging. I could sense his stress and his embarrassment at having to call repeatedly for help. [my emphasis]

To be sure, you can’t believe Mac Isaac.

His own story is riddled with questionable details and important discrepancies.

The most important discrepancy is his description of the laptop he turned over to the FBI, which he describes as a 2016 Mac, not the 2018 Mac identified by serial number.

I moved on to the last Mac, a thirteen-inch 2016 MacBook Pro. The drive was soldered onto the logic board. This one powered on but then would shut down. I suspected that there was a short in the keyboard or trackpad, and if I took it apart, I could at least get it to boot and possibly recover the data.

As I understand it, Mac Isaac’s claims that the hard drive was soldered onto the logic board is also inconsistent with the known details of the laptop shared with the FBI.

But there are important other discrepancies between the story Mac Isaac tells and the one the government tells. In his timeline of his interactions with the FBI, Mac Isaac gets the date for the actual handoff, December 9, correct, but other dates he uses differ from those that show up in Gary Shapley’s timeline. For example:

  • Mac Isaac says that Agent Josh Wilson (who is mentioned in Shapley’s notes) reached out to his father on November 1; Shapley’s notes say that happened on November 3
  • Mac Isaac says that Wilson called him on November 4; Shapley’s notes say that happened on November 6
  • Mac Isaac says that Wilson came to his home on November 19; Shapley’s notes say that happened on November 7

These discrepancies aren’t all that important, legally. But Mac Isaac’s dates seem tailored to the impeachment proceedings going on in the same period, and so to laying a foundation for sharing the laptop with Rudy Giuliani.

A far more important set of discrepancies pertain to Mac Isaac’s description of what happened on December 9, 2019.

The blind computer repairman first describes that the second agent, Agent Mike DeMeo, called him to ask for the device identifiers that morning, before coming to the shop to pick up the device.

Agent DeMeo called around 9:30 a.m. It caught me a little off guard. The only other time we had communicated was shortly after our meeting almost three weeks earlier. He had asked me then to text him the timeline of my interaction with Hunter. I figured that he wanted something in writing showing the chain of custody—or it was an effort to trap me into writing something that could be twisted into a charge of lying to the FBI.

This time, he asked me to text him the model and serial number of the external drive and laptop. I explained that I hadn’t made it to the shop yet. “I need this information before we head over,” he insisted. “It’s important.”

“Give me thirty-five minutes,” I responded, then hung up. I finished getting ready and headed to the shop. After texting the numbers to Agent DeMeo, I waited in the shop with the blinds closed and the lights out, so as not to announce that the store was open. [my emphasis]

Shapley described that the FBI obtained and confirmed the device identifier before they ever met Mac Isaac, on November 6 (though perhaps Mac Isaac only referred to other identifiers needed for the subpoena).

Nevertheless, this discrepancy is important for a number of reasons, not least that if the FBI looked at all closely at the returns on a subscriber subpoena to Apple, it should have raised significant alarm that someone was trying to hack Hunter Biden. But if they didn’t obtain this information until the day they obtained the laptop, then they couldn’t have reviewed the subscriber data very closely in advance. That negligence might, in turn, amount to negligence in missing clear signs that the then former VP’s son was being hacked.

As Mac Isaac describes it, it was not until Agents arrived at his shop that they told him they were going to seize the laptop with a subpoena rather than imaging the laptop there at the shop.

Both agents arrived at my door about a half hour late. “Where’s the tech?” I asked, holding the door open.

“We have a change of plans,” Agent Wilson responded. “Can we go in the back?”

I led the agents to the back, and Agent Wilson placed his bag on the workbench. “

I have a subpoena here to collect the laptop, the drive, and all paperwork associated with the equipment,” he said, pulling out a collection of very formal and important-looking paperwork. “I’ll need you to sign it.”

When Mac Issac asked why they had changed their plan, he claims, lead Agent Josh Wilson deferred to Agent Mike DeMeo, who told him that they were taking the laptop back to a lab to image.

“You guys scared the shit out of me!” I exclaimed. “So why the change of plans? Don’t get me wrong; I’m grateful that you’re taking this stuff out of my shop.”

Agent Wilson looked over at Agent DeMeo, who was buried in his clipboard. “Ah, Mike?” he said. Agent DeMeo paused his writing and said, “We have a lab that takes these things and is better equipped than our field tech.”

Mac Isaac also claims that at that same meeting, DeMeo told him only to contact him, not Wilson.

“Tell them you keep abandoned equipment offsite, like a warehouse location,” Agent DeMeo answered, taking over. “Tell them it will take a day for you to check and they should call back the next day. Then immediately text me at my cell number. From now on, only communicate through my cell number. Not Agent Wilson, just me. We need to avoid communicating through, ah, normal channels. I’m sure you can understand. Text me and we will get the equipment back to you and deal with the situation.”

This communication works the opposite of the way you’d expect. Often, second agents are asked to take the stand, so you’d want them to have a clean digital trail. Here, the lead agent, Agent Wilson, was protecting his communications, whereas the second agent was not.

And then, as Mac Isaac tells it, that very same day, someone else, “Matt,” called using DeMeo’s phone, asking really embarrassing questions about how to access the laptop.

The claim that someone at the FBI was trying to boot up the laptop is alarming enough — though as I noted in July, there is some corroboration for the claim in Gary Shapley’s notes.

FBI determined in order to do a full forensic review a replacement laptop had to be purchased so the hard drive could be installed, booted and imaged.

[snip]

Josh Wilson stated that (while laughing) so whoever [people wanting to review the laptop] are they are going to have to buy a laptop to put the hard drive so they can read it.

Where Mac Isaac’s claims are totally inconsistent with the FBI claims, in a way that would cause grave legal problems for the FBI, is the date: Mac Isaac claims that the FBI was trying to boot up the laptop that same day, on December 9.

According to Gary Shapley’s notes, the FBI didn’t have approval to even get a warrant on December 9, much less have a signed warrant itself.

The FBI didn’t have a warrant to access the “Hunter Biden” “laptop” until December 13.

And yet, if you can believe Mac Isaac, the FBI was already trying to boot it up, perhaps irreparably altering its contents, three days before they got a warrant.

Featured image showing known dissemination of the “Hunter Biden” “laptop” by Thomas Fine.

Hunter Biden Threatens to Make Robert Costello’s Dalliance with Rudy Giuliani Even More Costly

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Last week, Robert Costello’s law firm sued Rudy Giuliani — as they earlier successfully sued Steve Bannon for a far smaller amount earlier this year — for stiffing them on payments amounting to almost $1.4 million.

In a statement provided by a spokesman, Mr. Giuliani lashed out at Mr. Costello and the lawsuit, portraying it as an overly aggressive attempt to collect.

“I can’t express how personally hurt I am by what Bob Costello has done,” Mr. Giuliani said. “It’s a real shame when lawyers do things like this, and all I will say is that their bill is way in excess to anything approaching legitimate fees.”

Reached by phone, Mr. Costello initially declined to comment but fired back after hearing Mr. Giuliani’s statement, asking, “How can he take a personal affront when he owes my firm nearly $1.4 million?”

Mr. Costello also disputed the claim that the bills were excessive, saying that he billed his regular hourly rate and that Mr. Giuliani never complained about the cost until Davidoff Hutcher & Citron warned that it had planned to sue.

“He’s a little late to that party,” Mr. Costello said, adding, “it’s too late for that frivolous claim as he will find out in court.”

Mr. Giuliani, he said, “took the low road here because he is feeling desperate.”

In all, Mr. Costello’s firm has billed Mr. Giuliani $1,574,196, according to the lawsuit. Of that, Mr. Giuliani has paid only $214,000, the lawsuit said, most recently handing over $10,000 last week.

Rudy doesn’t have the money to pay Costello. This lawsuit can only serve to pressure Rudy to get Trump to pay up, something he has thus far refused to do.

In any case, Costello’s costs for enabling Rudy’s shenanigans may well grow, now that Hunter Biden has sued both of them for hacking his personal data.

The lawsuit largely parallels the lawsuit filed earlier against Garrett Ziegler — though the evidence that first Costello and then Rudy hacked the data is based on a different access claim. Hunter alleges (with merit) that Ziegler unlawfully accessed encrypted data that had been saved to Hunter’s iTunes account.

In this suit, the hacking claim appears to be two-fold: first, Costello’s demonstration to Olivia Nuzzi of how he accessed Hunter’s email account using Hunter’s own credentials.

24. Plaintiff has discovered (and is continuing to discover) facts concerning Defendants’ hacking activities and the damages being caused by those activities through Defendants’ public statements in 2022 and 2023. During one interview, which was published on or about September 12, 2022, Defendant Costello demonstrated for a reporter precisely how Defendants had gone about illegally accessing, tampering with, manipulating and altering Plaintiff’s data:

“Sitting at a desk in the living room of his home in Manhasset, [Defendant Costello], who was dressed for golf, booted up his computer. ‘How do I do this again?’ he asked himself, as a login window popped up with [Plaintiff’s] username . . .”3

By booting up and logging into an “external drive” containing Plaintiff’s data and using Plaintiff’s username to gain access Plaintiff’s data, Defendant Costello unlawfully accessed, tampered with and manipulated Plaintiff’s data in violation of federal and state law. Plaintiff is informed and believes and thereon alleges that Defendants used similar means to unlawfully access Plaintiff’s data many times over many months and that their illegal hacking activities are continuing to this day.

3 Andrew Rice & Olivia Nuzzi, The Sordid Saga of Hunter Biden’s Laptop, N.Y. MAG. (Sept. 12, 2022), https://nymag.com/intelligencer/article/hunter-biden-laptop- investigation.html.

I’ve been told that because of the way the data was stored, booting the hard drive up would update emails onto the hard drive, including any emails altered during the November 2019 Burisma hack. But using Hunter’s credentials — if that’s what Costello did — would be a CFAA violation unto itself.

Additionally, the complaint notes that both Costello and Rudy boasted about accessing Hunter’s camera roll.

26. For example, Defendant Costello has stated publicly that, after initially accessing the data, he “scrolled through the laptop’s [i.e., hard drive’s] email inbox” containing Plaintiff’s data reflecting thousands of emails, bank statements and other financial documents. Defendant Costello also has admitted publicly that he accessed and reviewed Plaintiff’s data reflecting what he claimed to be “the laptop’s photo roll,” including personal photos that, according to Defendant Costello himself, “made [him] feel like a voyeur” when he accessed and reviewed them.

[snip]

31. By way of further example, in an episode of the podcast “Louder with Crowder” in late 2022, Defendant Giuliani held up a laptop computer on air and announced: “This is the hard drive they’re on,” referring to data (e.g., photographs) he apparently carries around with him on a daily basis, presumably so that he can continuously access, tamper with and manipulate the data whenever and wherever he desires.

Hunter’s team may know that these photos would not have been available without a password.

Note, the complaint makes some interesting allegations about John Paul Mac Isaac’s own actions; I would be unsurprised if Hunter sues him next.

23. Following these communications, Mac Isaac apparently sent via FedEx a copy of the data he claimed to have obtained from Plaintiff to Defendant Costello’s personal residence in New York on an “external drive.” Once the data was received by Defendants, Defendants repeatedly “booted up” the drive; they repeatedly accessed Plaintiff’s account to gain access to the drive; and they proceeded to tamper with, manipulate, alter, damage and create “bootable copies” of Plaintiff’s data over a period of many months, if not years.

2. Plaintiff’s investigation indicates that the data Defendant Costello initially received from Mac Isaac was incomplete, was not forensically preserved, and that it had been altered and tampered with before Mac Issac delivered it to Defendant Costello; Defendant Costello then engaged in forensically unsound hacking activities of his own that caused further alterations and additional damage to the data he had received. Discovery is needed to determine exactly what data of Plaintiff Defendants received, when they received it, and the extent to which it was altered, manipulated and damaged both before and after receipt.

Mac Isaac admits in his book that the copy he made of the laptop he received was not a forensic copy.

As with Costello’s suit, the lawsuit against Rudy is drilling a dry hole. Rudy is broke, and even if Hunter prevailed, he’d be at the back of a long line of creditors at some time Rudy declares bankruptcy.

But the discovery is something else.

So, too, is Costello’s role in all that, which he may or may not be claiming is part of attorney-client privileged activities, a claim that would he impossible to sustain in light of the Nuzzi profile.

And, in the shorter term, these lawsuits provide basis to claim that DE USAO is pursuing Hunter for misdemeanor tax charges, while ignoring the way the President’s son was and continues to be serially hacked by his father’s opponents.

Update: Politico includes this quote in their report on the lawsuit.

Giuliani and his allies have long argued that the purported laptop was fair game because it was allegedly abandoned. But at the heart of the lawsuit is the argument that regardless of where any piece of computer hardware was located, Hunter Biden’s data still belongs to him alone. A member of his legal team, granted anonymity to discuss his newly aggressive legal strategy, put it this way: “If you take your coat to the dry cleaner and leave your wallet in it, and you forget to pick it up, it doesn’t mean the dry cleaner gets the wallet and all your money. It’s just common sense.”

The member of his legal team hinted that more litigation could follow.

“Everyone involved in stealing and manipulating Hunter’s data should be hearing footsteps right about now,” that person said.

I don’t think people yet have considered the full scope of people this might include.

John Lauro’s False Claims about Assaults “at the Behest” of Donald Trump

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As I predicted, John Lauro misrepresented the timing of prosecutors’ request for a limited gag on Trump’s violent speech. Lauro presents his response as if DOJ first asked to limit Trump’s violent speech on September 15 in docket entry 57, and not (in sealed form, to which Trump objected, on September 5) at docket 47.

President Trump respectfully submits this response in opposition to the prosecution’s motion to impose unconstitutional prior restraints on President Trump’s political speech. (the “Motion,” Doc. 57, seeking the “Proposed Gag Order,” Doc. 57-2).

Here’s the handy dandy annotated docket I did so NYT journalists could understand the true timing (even if they didn’t note their corrections once they did belatedly understand it).

One reason Lauro’s manufactured misrepresentation about the timing of the motion — September 5 versus September 15 — matters is because he’s now falsely suggesting that DOJ only issued this request after Biden got a bunch of bad polling data.

At bottom, the Proposed Gag Order is nothing more than an obvious attempt by the Biden Administration to unlawfully silence its most prominent political opponent, who has now taken a commanding lead in the polls. Indeed, this very Motion came on the heels of adverse polling for President Biden.

To be sure, Lauro must recognize what rank bullshit this claim is, given that he doesn’t cite the polling in question (which probably is meant to invoke the outlier WaPo poll of this week). This is designed to work for the Federalist and Fox set, not for Judge Chutkan.

But the timing matters for another reason.

Probably because Lauro wants to set up a future argument balancing election-related speech against defendant-related restrictions, he suggests DOJ is doing this primarily to silence criticism of Jack Smith, and not to protect witnesses, prosecutors, and Judge Chutkan herself.

[T]he prosecution complains that President Trump’s political statements “undermine confidence in the criminal justice system,” which it asserts somehow justifies the Proposed Gag Order. Motion at 2, 6, 8, 15. The prosecution cites no authority in support of this bizarre claim. Nor can it. As the Supreme Court has repeatedly emphasized, “speech critical of the exercise of the State’s power lies at the very center of the First Amendment.” Gentile, 501 U.S. at 1034; New York Times Co. v. Sullivan, 376 U.S. 254, 273 (1964) (“Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.”). This includes criticism of the Court and the Special Counsel.

When Lauro finally gets around to dealing with the violent threats Trump has issued, he ignores the bulk of the examples DOJ provided, instead focusing exclusively on the one Trump’s team had already addressed.

[N]o witness has suggested that he or she will not testify because of anything President Trump has said. To the contrary, witnesses appear eager to share their expected testimony with the media and will undoubtedly testify at a potential trial, if called to do so.7 Nor has any witness suggested that President Trump’s protected statements have “influenc[ed] [his or her] testimony,” as the prosecution baselessly suggests. Motion at 15.

This is entirely unsurprising, as President Trump has never called for any improper or unlawful action. Quite the opposite, the prosecution’s cited posts show that President Trump intends to redress the unfairness of this proceeding through legitimate means. This includes, for example, filing motions with the Court—a form of relief that President Trump has every right to pursue and talk about. This is a far cry from the type of “true threat” the prosecution would need to show to justify a prior restraint. Virginia v. Black, 538 U.S. 343, 360 (2003) (“Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”).8

Unable to identify any instance where President Trump uttered any threat, the prosecution points to others, claiming President Trump “knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets.” Motion at 3. Again, the prosecution offers no evidence of any causal connection between his speech and the alleged unlawful acts of others to support this meritless claim.

7 Two “potential witnesses” the prosecution does not want President Trump speaking about, for example, are former Attorney General Bill Barr and former Vice President Mike Pence. Both have written books about their tenure with President Trump and the latter is currently running for president. See, e.g., Geoff Bennett, Bill Barr: Trump Committed a “Grave Wrongdoing” in Jan. 6 Case, PBS NEWSHOUR, Aug. 3, 2023. Neither shies away from a hearty public debate with President Trump. Both were at the very top of government and it is absurd to think that they would be intimidated by social media posts. Others the prosecution identifies as “harassed,” are likewise current and former government officials who have made politics, for all its discord and discourse, a large part of their lives.

8 The prosecution once again cites President Trump’s August 4, 2023, Truth Social post; however, as previously explained, Doc. 14 at 7–8 n.8, that post did not concern this case. See Nick Robertson, Trump campaign defends threatening social media posts as free speech, The Hill (August 5, 2023) (quoting a Trump campaign statement that “[t]he Truth post cited is the definition of political speech, and was in response to the RINO, China-loving, dishonest special interest groups and Super PACs, like the ones funded by the Koch brothers and the Club for No Growth.”).

In today’s environment, this Court could easily take judicial notice that “[t]he language of the political arena . . . is often vituperative, abusive, and inexact,” Watts, 394 U.S. at 708 (citations omitted), and even “very crude [or] offensive method[s] of stating a political opposition” are not true threats. Id.

Finally, the prosecution raised (and President Trump addressed), this same post in connection with its motion for a protective order. Doc. 14 at 7–8 n.8. Despite having ample opportunity to dispute President Trump’s explanation, including in a reply brief, Doc. 15, and at oral argument, Doc. 29, the prosecution chose not to do so. Now, the prosecution once again tries to revive this debunked position in support of its Motion. The Court should accord such unpersuasive arguments no weight. [my emphasis]

Lauro ignores the multiple cases, cited in prosecutors’ filing, where people told Trump directly that his incitement had ratcheted up threats against people like Jeff Duncan, Chris Krebs, and Ruby Freeman. He ignores prosecutors’ citation of Trump bragging about the way his followers respond to Trump.

As he acknowledged in a televised town hall on May 10, 2023, his supporters listen to him “like no one else.”

Perhaps more importantly, Lauro ignores something he has already ignored, in his reply to his own motion to recuse Tanya Chutkan.

As I noted, by filing a motion to recuse based off things Judge Chutkan said when January 6 defendants blamed Trump for their actions, Trump invited prosecutors to lay out the many more times defendants had done just that. Not only did prosecutors provide eight other examples where defendants already sentenced by Chutkan blamed Trump for their actions, DOJ laid out something that Robert Palmer said of his own actions on January 6: That he went to the Capitol “at the behest” of Trump and took action to prevent the certification of the vote because of the false claims Trump had made.

On December 17, 2021, the Court sentenced Robert Scott Palmer, an individual who, on January 6, 2021, after attending the former president’s remarks at the Ellipse and while wearing a “Florida for Trump” hat, “threw a wooden plank at” police officers; “sprayed the contents of a fire extinguisher at the officers until it was empty, and then threw the fire extinguisher” at them; and “assaulted another group of law enforcement officers with a 4-5 foot pole,” which he threw “like a spear at the officers.” United States v. Palmer, 21-cr-328, ECF 30, at 10, 2 (Govt. Sentencing Mem.); id., ECF No. 23, at 3 (D.D.C. Oct. 4, 2021) (Statement of Offense). Palmer was charged with, and pled guilty to, assaulting, resisting, or impeding certain officers using a dangerous weapon, in violation of 18 U.S.C. §§ 111(a) and (b). Id., ECF No. 24 at 1 (D.D.C. Oct. 4, 2021) (Plea Agreement).

In a sentencing memorandum filed before his hearing, Palmer’s attorney asserted that he had gone to the Capitol “at the behest of” the defendant and had been convinced by individuals, including the defendant, that the election was fraudulent and that Palmer needed to take action to stop the presidential transition. Id., ECF No. 31 at 8 (D.D.C. Dec. 13, 2021) (Def. Sentencing Mem.). [my emphasis]

John Lauro is lying when he claims that there is “no evidence of any causal connection between his speech and the alleged unlawful acts of others.” Lauro himself elicited that evidence. And the evidence is that, according to Robert Palmer, because of the false claims Trump and others told about the election, Palmer went to the Capitol on January 6 “at the behest of” Donald Trump, and serially assaulted several cops.

Trump’s reply ignored the substance of Palmer’s claims; it even dropped all mention of the Palmer case. Trump thereby left uncontested DOJ’s representation of Palmer’s claim that he did what he did “at the behest” of Trump.

Thus far, in the case against Trump, DOJ has been rather reserved about the dockets and dockets full of evidence that rioters believed they had been ordered by Trump to do what they did. The indictment itself shows that Trump’s several days of pressure — including his 2:24PM tweet — resulted in direct threats from rioters to Pence.

111. At 2:24 p.m., after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

112. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.

113. At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!”

Yet, DOJ has not made it anywhere explicit that evidence in the case of dozens, if not hundreds, of Jnauary 6 defendants make it clear that these threats to Pence arose directly from Trump’s statements. And in their motion for a gag order, DOJ did not tie the threats against Pence Trump elicited on January 6 to one he has made recently that they included in the motion.

But because John Lauro made it an issue in his recusal motion, DOJ has provided crystal clear evidence of one case where someone believed he was taking action — violent assaults against cops — “at the behest of Trump.”

John Lauro wanted it this way — he wanted to create the false illusion that whatever gag Chutkan might impose came only after he accused her of being a biased Black Woman. But in the process, he himself elicited proof that Trump’s statements to lead directly to violence.

On Recusal, Give Trump the Evidentiary Hearing He Demands!

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There are a number of fairly insane claims made in Trump’s reply seeking Judge Tanya Chutkan’s recusal.

Trump scolds that an impartial judge should express no opinion.

2 Consistent with the presumption of innocence and due process, an impartial court would ordinarily avoid stating any opinion regarding a third party’s guilt or innocence until that party has received an opportunity to present a defense. See United States v. Microsoft, 253 F.3d 34, 114 (D.C. Cir. 2001).

But that is precisely what Chutkan did when she said she “I have my opinions, but they are not relevant:” she didn’t express her opinion. By Trump’s own definition, Chutkan is an impartial judge!

Trump makes a very narrow argument that the eight additional defendants Chutkan sentenced who attributed their actions to Trump, mentioned by the prosecution, did not say Trump directed them to engage in violence, enter the Capitol, or interfere with the proceedings (I included that footnote in this post).

1 None of the excerpts cited in footnote 1 of the Response claim that President Trump directed or encouraged anyone to enter the Capitol, undertake violence, or interfere with proceedings at the Capitol. Of course, no such evidence exists. The defendants in these other cases obviously sought to explain the circumstances of their conduct, but that had no relevance to whether President Trump should be charged. That issue was never before the Court prior to this case. Therefore, the only reasonable conclusion—and the very one that the prosecution consciously avoids—is that Judge Chutkan formed her disqualifying opinions from information outside of the courtroom.

Even ignoring that several of them did say Trump told them to go to the Capitol, that’s a distraction. As prosecutors have shown, one of the two defendants that Trump himself raised, Robert Palmer, literally said that he went to the Capitol “at the behest” of Trump, where — because he had been persuaded by Trump and others he needed to prevent the transition of power — he proceeded to serially assault cops. Trump simply ignores that one of the two cases he himself raised did precisely that.

But the most batshit claim — one that I hope backfires wildly — is the claim that when Judge Chutkan said, “I’ve seen video” during the Christine Priola sentencing, there was no video in evidence before her.

Similarly, Judge Chutkan’s statement that President Trump “remains free to this day,” Motion, Ex. A at 29:17–30:3, had no factual or legal relevance to the matter before her. That conclusion was formed, according to Judge Chutkan, based upon unspecified “videotapes” and “footage” that the prosecution has not established were in evidence and appear not to be. Id. (“I see the videotapes. I see the footage of the flags and the signs that people were carrying and the hats they were wearing and the garb.”). But even if they were in the record of the Priola case, they could hardly support a conclusion that President Trump should be charged.

In addition to the sentencing memo DOJ submitted for Priola, they formally noticed the following videos:

1. Government Exhibit 1 is a video approximately 26 seconds in length that shows the crowd behind the barricades on the east side of the Capitol. People in the crowd can be heard chanting, “Stop the steal.” Priola’s sign can be seen in the crowd.

2. Government Exhibit 2 is a video approximately 1 minute and 23 seconds in length that shows the rioters outside the East Rotunda (Columbus) doors, including some rioters reacting to pepper gas. Priola and her sign can be seen while she is standing about 15- 20 feet from the entrance. People in the crowd can be heard chanting, “USA, USA.”1

3. Government Exhibit 3 is a video approximately 3 minutes in length that shows rioters outside the East Rotunda doors attempting to enter the Capitol building. Priola’s sign can be seen in the crowd outside. The video also shows the doors being forced open from the inside and Priola (now inside the building) talking to another rioter on camera and walking down the corridor. People in the crowd can be heard chanting, “Who’s our President? Trump!”; yelling, “Tear it down”; and later chanting, “Defend your Constitution. Defend your liberty.”

4. Government Exhibit 4 is a video approximately 26 seconds in length that shows the breach of the East Rotunda doors. Priola’s sign can be seen outside the building through the open doors.

5. Government Exhibit 5 is a video approximately 2 minutes and 30 seconds in length that shows the rioters breaching the East Rotunda doors. Priola can be seen with her sign soon after she enters the building.

6. Government Exhibit 72 is a video approximately 1 minutes and 28 seconds in length that shows the rioters, including Priola, walking down the east corridor inside the Capitol Building. It also shows Priola holding her sign up to one of the windows and tapping on the glass to get the attentions of rioters outside. Rioters can be heard chanting, “Defend your Constitution. Defend your liberty.” and “Who’s house? Our house.”

7. Government Exhibit 8 is a video approximately 14 seconds in length that shows rioters, including Priola, on the Senate Chamber floor. Priola can be seen and heard talking on her cell phone.

1 The government’s sentencing memorandum incorrectly stated that the crowd could be heard chanting “Stop the steal” and “Who’s our President? Trump!” during this video. ECF No. 56 at 10. [my emphasis]

More importantly, there’s all the other video Chutkan had seen by October 28, 2022.

Do you know how insane it is for someone to tell Judge Tanya Chutkan that by October 28, 2022, the date of Priola’s sentencing, she had not seen video evidence on which she could form an opinion about how central Trump was to January 6? Do you have any idea how many hundreds of hours of video DC judges like Chutkan, pertaining to Priola in Chutkan’s case, but also pertaining to the series of assault defendants whose detention proceedings she had presided over and defendants sentenced before Priola, had seen by that point?

Trump made the argument that by October 28, 2022, Judge Tanya Chutkan had not seen sufficient evidence about January 6 to form an opinion about Trump’s role in the attack. If I were Judge Chutkan, I’d order the hearing Trump claims he wants, refuse to waive his appearance, and force him, his attorneys, and the journalists only beginning to pay attention to January 6 because Trump has been charged to review the video of the attack she had sat through by October 2022.

As one example, Chutkan presided over several spectacular assault cases, including one where a former Marine who had attended the TCF Center mob in Detroit after the election brought his hockey stick to the Capitol and used it to beat a cop, one of the many spectacularly brutal assaults that happened that day.

Trump claims that during the year and a half of January 6 cases she had presided over by October 28, 2022, Chutkan had not seen any evidence from which she could form an opinion about the event. By all means, let’s put the evidence she had seen in the record.

By Asking for Tanya Chutkan’s Recusal, Trump Invited a Lesson in His Centrality to January 6

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Trump’s motion for Tanya Chutkan to recuse was not designed to work. Rather, it was designed as a messaging vehicle, to establish the basis for Trump to claim that a Black Judge was biased against him so he can better use it to discredit rule of law and as a campaign and fundraising vehicle.

Because Trump’s motion was primarily a messaging vehicle, the — legally apt — messaging with which DOJ responded is of some interest.

Invited to do so by Trump, DOJ laid out how central Trump is to the thousand other January 6 prosecutions.

Invited to do so by Trump, for example, DOJ provided eight other times — in addition to the cases of Robert Palmer and Christine Priola cited in the recusal motion — where defendants before Judge Chutkan have implicated Trump in their actions.

This Court, like all courts in this District, has presided over dozens of criminal cases related to January 6. And this Court, like all courts in this District, gained knowledge about the events of January 6 and insight about the persons charged based on its daily administration of those cases. For instance, the Court learned that numerous individuals charged with January 6 crimes attempted to minimize their actions and spread blame to others, including to defendant Trump and to the mob that each rioter joined at the Capitol. Indeed, the Court regularly heard variations of such arguments from other defendants, in the form of sentencing memoranda and allocutions, before similar claims were made by the defendants in the two sentencing hearings on which the defendant bases his claim of bias.1

1 See United States v. Bauer, 21-cr-49, ECF No. 38 at 3 (D.D.C. Oct. 6, 2021) (Def. Sentencing Mem.) (arguing that Bauer “only decided to turn from the Ellipse and head towards the Capitol when then-President Trump directed the crowd to proceed in that direction” and then followed the group); United States v. Hemenway, 21-cr-49, ECF No. 39 at 2 (D.D.C. Oct. 6, 2021) (Def. Sentencing Mem.) (arguing that Hemenway decided “to take part in the political rally on the Ellipse” and got “caught up in the group mentality of the crowd that entered the Capitol”); United States v. Bissey, 21-cr-165, ECF No. 29 at 17 (D.D.C. Oct. 12, 2021) (Sentencing Tr.) (defense attorney arguing that Bissey had minimal role on January 6 and “did not come to D.C. with any intention other than supporting her president”); United States v. Miller, 21-cr-226, ECF No. 52 at 4 (D.D.C. Dec. 8, 2021) (Def. Sentencing Mem.) (arguing that “[Miller] had absolutely no expectation or desire to overthrow the government. Rather, she was supporting the President in what he claimed were legitimate efforts to claim victory in the Presidential election.”); United States v. Perretta, 21-cr-539, ECF No. 55 at 2 (D.D.C. Jan. 4, 2022) (Def. Sentencing Mem.) (arguing that Perretta “attended the ‘Save America’ political rally, where then-President Trump encouraged listeners to march to the Capitol to make their voices heard” and then went to the Capitol with thousands of other individuals from the Ellipse); United States v. Ehmke, 21-cr-29, ECF No. 30 at 2-5, 8-9 (D.D.C. May 6, 2022) (Def. Sentencing Mem.) (arguing that Ehmke had a minor role and that others, “including the former president, the rally’s organizers and speakers, and other nefarious, organized groups . . . arguably bear much greater responsibility”); United States v. Ponder, 21-cr-259, ECF No. 58 at 21-22 (D.D.C. Jul. 26, 2022) (Sentencing Tr.) (Ponder asserting that he marched from Ellipse to Capitol “with the intentions on a peaceful protest. However, things had spiraled out of control” and he “got caught up in it.”); United States v. Cortez, 21-cr-317, ECF No. 80 at 38 (D.D.C. Aug. 31, 2022) (Sentencing Tr.) (defense attorney arguing that Cortez was “being told these things by the president, you need to save your country, and he’s trying to do something right”). [my emphasis]

Again, these are just defendants Judge Chutkan has already sentenced. The footnote conveys how routine it is for defendants, before every single DC judge, to blame Trump for their role in assaulting the Capitol.

Invited to do so by Trump, DOJ laid out how Christine Priola wore Trump merch as she surged through the East door alongside the Oath Keepers and Joe Biggs, and then helped occupy the Senate floor on January 6.

On October 28, 2022, the Court sentenced Christine Priola, who on January 6, 2021, surged with other rioters into the Capitol and onto the Senate floor, “carrying a large sign reading, ‘WE THE PEOPLE TAKE BACK OUR COUNTRY’ on one side and ‘THE CHILDREN CRY OUT FOR JUSTICE’ on the other,” United States v. Priola, 22-cr-242, ECF No. 65 at 3 (D.D.C. July 26, 2022) (Statement of Offense), and wearing pants with the phrase, “MAKE AMERICA GREAT AGAIN,” id., ECF No. 56 at 13, 16 (D.D.C. Oct. 21, 2022) (Govt. Sentencing Mem.). Priola was charged with, and pled guilty to, obstructing an official proceeding, in violation of 18 U.S.C. § 1512(c)(2). Id., ECF No. 66 at 2 (D.D.C. Feb. 21, 2023) (Sentencing Tr.)

In her sentencing memorandum, Priola, too, laid the groundwork for spreading the blame to others, noting that “[a]fter the presidential election, Donald Trump . . . and his inner circle began spreading the word that the election was ‘stolen’ from him by Democrats and others,” with claims “made on media sources, as well as by the President himself, that the election system had been corrupted and that the integrity of the election should be questioned.” Id., ECF No. 57 at 3 (D.D.C. Oct. 21, 2022) (Def. Sentencing Mem.). Priola’s sentencing memorandum then sought leniency for Priola in part because she “played no role of importance” at the Capitol, and had she not been there, “there wouldn’t be one change in what transpired.” Id. at 14.

At her sentencing hearing, Priola likewise explained that, at the time of her criminal conduct, she believed that the election had been stolen and that “certain politicians or groups have, like, taken over things that maybe weren’t supposed to be.” Id., ECF No. 66 at 26 (D.D.C. Feb. 21, 2023) (Sentencing Tr.). [my emphasis]

Because Priola raised Trump in her sentencing submission, DOJ explained, binding precedent required Chutkan to respond to it.

Similarly, on Trump’s invitation, DOJ laid out how Palmer claimed he went to the Capitol “at the behest of” Trump where, while wearing a Florida for Trump hat, he serially assaulted cops defending the Capitol.

On December 17, 2021, the Court sentenced Robert Scott Palmer, an individual who, on January 6, 2021, after attending the former president’s remarks at the Ellipse and while wearing a “Florida for Trump” hat, “threw a wooden plank at” police officers; “sprayed the contents of a fire extinguisher at the officers until it was empty, and then threw the fire extinguisher” at them; and “assaulted another group of law enforcement officers with a 4-5 foot pole,” which he threw “like a spear at the officers.” United States v. Palmer, 21-cr-328, ECF 30, at 10, 2 (Govt. Sentencing Mem.); id., ECF No. 23, at 3 (D.D.C. Oct. 4, 2021) (Statement of Offense). Palmer was charged with, and pled guilty to, assaulting, resisting, or impeding certain officers using a dangerous weapon, in violation of 18 U.S.C. §§ 111(a) and (b). Id., ECF No. 24 at 1 (D.D.C. Oct. 4, 2021) (Plea Agreement).

In a sentencing memorandum filed before his hearing, Palmer’s attorney asserted that he had gone to the Capitol “at the behest of” the defendant and had been convinced by individuals, including the defendant, that the election was fraudulent and that Palmer needed to take action to stop the presidential transition. Id., ECF No. 31 at 8 (D.D.C. Dec. 13, 2021) (Def. Sentencing Mem.). Two paragraphs later in the memorandum, Palmer’s attorney argued that the Court should, as a mitigating factor, “consider that the riot almost surely would not have occurred but for the financing and organization that was conducted by persons unconnected to Mr. Palmer who will likely never be held responsible for their relevant conduct.” See id. at 8-9. [my emphasis]

Because Palmer blamed Trump for his actions in his sentencing package, DOJ explained, binding precedent required Chutkan to respond to it.

Even before it laid out how the claims of defendants obligated Chutkan to address their claims that Trump caused them to do what they did, DOJ laid out the precedents that apply to intrajudicial comments about related cases, a much higher standard for recusal than the precedents Trump invoked. At Trump’s invitation, then, DOJ cited Watergate, where the DC Circuit did not find that Judge John Sirica should have recused from the Haldeman trial because he had, during the burglars’ trial, correctly judged that the conspiracy extended well beyond those men.

[T]he Supreme Court has held that where a recusal motion rests on statements made in a judicial setting and reflect “opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings,” recusal will be warranted “only in the rarest circumstances” where the comments “display a deepseated favoritism or antagonism that would make fair judgment impossible.” Id. at 555. After all, “opinions held by judges as a result of what they learned in earlier proceedings” are “normal and proper,” and “not subject to deprecatory characterization as ‘bias’ or ‘prejudice.’” Id. at 551; see Belue v. Leventhal, 640 F.3d 567, 573 (4th Cir. 2011) (“The high bar set by Liteky for predispositional recusals makes good sense. If it were otherwise—if strong views on a matter were disqualifying—then a judge would hardly have the freedom to be a judge.”).

This higher standard applies equally when a court’s intrajudicial statements were made in separate proceedings, including proceedings in which the defendant was not a party. The D.C. Circuit made this clear in its decision in United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976) (en banc). There, defendants sought recusal of the judge presiding over numerous, separate Watergate-related matters, in part based on statements the judge had made during an earlier, separate trial in which, among other things, he “expressed a belief that criminal liability extended beyond the seven persons there charged.” Id. at 131-32 & n.293. The Circuit found that recusal was not warranted because the grounds for the claim were “judicial acts” including “prior judicial rulings . . . or the exercise of related judicial functions.” Id. at 133-34. The Circuit further stated that the “disabling prejudice” necessary for recusal “cannot be extracted from dignified though persistent judicial efforts to bring everyone responsible for Watergate to book.” Id.

At Trump’s invitation, DOJ likened the January 6 rioters to Watergate burglars directed by those trying to help the President retain power.

And, at Trump’s invitation, DOJ recalled a more recent DC Circuit opinion finding that far stronger intrajudicial statements also did not require recusal. At Trump’s invitation, DOJ recalled how Trump’s people had started selling out the country even before being sworn in.

On the other side of the ledger are countless cases in which recusal based on judicial comments was deemed unwarranted—even based on comments that, unlike this Court’s comments on which the defendant bases his motion, directly criticize a defendant. For instance, recently in this District, a judge told a defendant at a hearing, “Arguably, you sold your country out. . . . I’m not hiding my disgust, my disdain for this criminal offense.” In re Flynn, 973 F.3d 74, 83 (D.C. Cir. 2020) (en banc) (per curiam). The D.C. Circuit found that these statements did not meet the Liteky test, stating, “the District Judge was not simply holding forth on his opinions; rather, each of the statements to which Petitioner objects was plainly made in the course of formal judicial proceedings over which he presided—not in some other context.”

Trump wants his January 6 trial to be messaging and fundraising vehicle.

But that may serve as little more than an invitation for DOJ to lay out just how deeply implicated he is in the entire assault on the Capitol.

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