DOJ Has Spent Five Months Trying to Access Scott Perry’s Phone

Earlier this month, I noted the difficulty created by the fact that 25 of the known witnesses or investigative subjects in the January 6 investigation were attorneys. Days later, I reiterated the difficulty presented by the six or so key participants in Trump’s suspected crimes who are members of Congress.

An important scoop from Politico demonstrates how difficult that is. It confirmed that a still-sealed appeal of a Beryl Howell decision pertains to DOJ’s efforts to get into Scott Perry’s phone.

The existence of the legal fight — a setback for DOJ reported here for the first time — is itself intended to be shielded from public scrutiny, part of the strict secrecy that governs ongoing grand jury matters. The long-running clash was described to POLITICO by two people familiar with the proceedings, who spoke candidly on the condition of anonymity.

The fight has intensified in recent weeks and drawn the House, newly led by Speaker Kevin McCarthy, into the fray. On Friday, the chamber moved to intervene in the back-and-forth over letting DOJ access the phone of Perry, the House Freedom Caucus chair, reflecting the case’s potential to result in precedent-setting rulings about the extent to which lawmakers can be shielded from scrutiny in criminal investigations.

The House’s decision to intervene in legal cases is governed by the “Bipartisan Legal Advisory Group,” a five-member panel that includes McCarthy, his Democratic counterpart Hakeem Jeffries, and other members of House leadership. The panel voted unanimously to support the House’s intervention in the matter, seeking to protect the chamber’s prerogatives, according to one of the two people familiar with the proceedings.

[snip]

More than four months after the government obtained Perry’s phone, Howell sided with DOJ. While Howell’s rulings in the dispute remain under seal, along with any rationale that appeals court judges may have offered for their actions, some spare details about the fight appear in that court’s public docket.

Remember: When DOJ was trying to breach the privilege claims of lawyers Jeffrey Clark and Ken Klukowski, they appeared to do so, in part, by prioritizing Perry’s contacts, emails that could not be privileged given the clients that Clark and Klukowski should have been representing — for a significant period for both, US taxpayers. Yet for most of the time since then, DOJ has been blocked from getting the non-lawyer’s contacts, even though he played a central role in attacking the peaceful transfer of power.

I have not yet been proven correct in my speculation that one reason Merrick Garland appointed a Special Counsel was because the Republican majority in the House made it more difficult to investigate those members of Congress, starting with Perry, who participated in Trump’s coup attempt. But Jack Smith’s background in investigating former members of Congress sure will help this investigation.

Billy B and Johnny D Drank Whiskey before the Special Counsel Appointment

I’ll have more to say about the NYT piece on the corrupt Durham investigation, though probably not till next week. But many people are commenting about how close Billy Barr was to Durham, as depicted by the way they sipped whiskey together.

While attorneys general overseeing politically sensitive inquiries tend to keep their distance from the investigators, Mr. Durham visited Mr. Barr in his office for at times weekly updates and consultations about his day-to-day work. They also sometimes dined and sipped Scotch together, people familiar with their work said.

In some ways, they were an odd match. Taciturn and media-averse, the goateed Mr. Durham had spent more than three decades as a prosecutor before Mr. Trump appointed him the U.S. attorney for Connecticut. Administrations of both parties had assigned him to investigate potential official wrongdoing, like allegations of corrupt ties between mafia informants and F.B.I. agents, and the C.I.A.’s torture of terrorism detainees and destruction of evidence.

By contrast, the vocal and domineering Mr. Barr has never prosecuted a case and is known for using his law enforcement platform to opine on culture-war issues and politics. He had effectively auditioned to be Mr. Trump’s attorney general by asserting to a New York Times reporter that there was more basis to investigate Mrs. Clinton than Mr. Trump’s “so-called ‘collusion’” with Russia, and by writing a memo suggesting a way to shield Mr. Trump from scrutiny for obstruction of justice.

But the two shared a worldview: They are both Catholic conservatives and Republicans, born two months apart in 1950. As a career federal prosecutor, Mr. Durham already revered the office of the attorney general, people who know him say. And as he was drawn into Mr. Barr’s personal orbit, Mr. Durham came to embrace that particular attorney general’s intense feelings about the Russia investigation.

It is true that Special Counsels, under the regulations, are supposed to have more independence from the Attorney General than this.

But keep in mind that 17 months of whiskey sipping happened before Barr made Durham Special Counsel.

And Barr intervened this closely in many of the other investigations he orchestrated. I wouldn’t be surprised if he sipped whiskey with Scott Brady and Jeffrey Jensen, when they were conducting corrupt projects (accepting Russian-tied dirt on Joe Biden and undermining the Mike Flynn case, respectively) for him, as well.

The timing is significant in another way.

As NYT describes, when Billy and Johnny went to Italy chasing George Papadopoulos’ conspiracy theories, the Italians instead shared alarming information about suspected financial crimes with the two men. Rather than providing the tip to a normal investigator, Barr instead had Durham chase it down.

On one of Mr. Barr and Mr. Durham’s trips to Europe, according to people familiar with the matter, Italian officials — while denying any role in setting off the Russia investigation — unexpectedly offered a potentially explosive tip linking Mr. Trump to certain suspected financial crimes.

Mr. Barr and Mr. Durham decided that the tip was too serious and credible to ignore. But rather than assign it to another prosecutor, Mr. Barr had Mr. Durham investigate the matter himself — giving him criminal prosecution powers for the first time — even though the possible wrongdoing by Mr. Trump did not fall squarely within Mr. Durham’s assignment to scrutinize the origins of the Russia inquiry, the people said.

Mr. Durham never filed charges, and it remains unclear what level of an investigation it was, what steps he took, what he learned and whether anyone at the White House ever found out. The extraordinary fact that Mr. Durham opened a criminal investigation that included scrutinizing Mr. Trump has remained secret.

But in October 2019, a garbled echo became public. The Times reported that Mr. Durham’s administrative review of the Russia inquiry had evolved to include a criminal investigation, while saying it was not clear what the suspected crime was. Citing their own sources, many other news outlets confirmed the development.

The news reports, however, were all framed around the erroneous assumption that the criminal investigation must mean Mr. Durham had found evidence of potential crimes by officials involved in the Russia inquiry. Mr. Barr, who weighed in publicly about the Durham inquiry at regular intervals in ways that advanced a pro-Trump narrative, chose in this instance not to clarify what was really happening.

By description, this tip too appears to precede the time when Durham was appointed Special Counsel. That’s important because, with every other investigation into Trump, Barr attempted to ensure it was shut down during the summer of 2020. If Barr succeeded here, too, then it would mean that it would not fall into the scope of Durham’s Special Counsel activities.

That’s important, because Durham is, by regulation, required to write a report about his prosecution and declination decisions. If Durham wants to see his report made public, we should fairly expect to see this criminal tip on Trump included.

There are a lot of questions about why Durham remains at DOJ. But one potential reasons is that Lisa Monaco believes his report could be a worthwhile thing: basically a long list of conspiracy theories that Barr had Durham chase that turned out to be conspiracy theories.

And this story may put some pressure on DOJ to make sure that happens.

More on Brandon Straka’s So-Called Cooperation

There was a funny moment in Brandon Straka’s February 24, 2022 January 6 Committee interview.

Close to the beginning of the interview, he provided a description of how, he claimed, the idea for Stop the Steal came about: someone, probably Ali Alexander, simply renamed a pre-existing MAGAt Twitter DM list sometime after the election.

A So there was a Twitter DM thread, which s to say, like, a private message thread that somebody had created — I have no idea who because in all likelihood it was probably created significantly before I was added to it. It was called MAGA Verified, which essentially means anybody who is a MAGA or, you know, Donald Trump supporter, who has a blue checkmark next to their name, so as in verified on Twitter.

And so somebody had created a group, a direct message group, and so I don’t know if anyone here maybe does or does not understand how Twitter works, but with a Twitter DM group, somebody can create a group and just add people. They don’t have to have your permission. Then it’s up to you to either leave the group or decide if you  want to stay in the group. 1) So, like, as right now as we speak, I’m probably added to hundreds of groups because I don’t really check my DMs that thoroughly, and I don’t make it an effort to go through and remove myself from every group that I’m added to.

But this particular group was called MAGA Verified, and it was a collection of people who are verified, you know, Republicans or Donald Trump supporters.

And then as (he claims) results started changing, people on the group decided to adopt the hashtag #StopTheSteal.

And at after the election, so I guess around November 5th, I would say, of 2020, 6several of us were in that group just sort of expressing confusion, exasperation, sadness about how the election results had suddenly changed during the night on November 4th going into November 5th.

And thenI think over the course I mean, I’d have to go back and look, but it was over the course of, I think, a day or two that plans started getting made to kind of deploy to swing States and host these First Amendment-protected events to encourage people to keep their spirits up and encourage their State legislators to hold a thorough forensic audit of the votes in theirStates, because people were very concerned about irregularities. So I’m going to go out on a limb and assume it was probably Ali Alexander who started using the Stop the Steal hashtag.

According to the cooperation memo the government filed in advance of Straka’s sentencing last year, which just got unsealed, it’s the same story he told to the FBI.

The “Stop the Steal” effort was formed through a private Twitter group of which Straka was a member. The group was formed “long before” the 2020 election and referred to itself as the “MAGA Verified” group because it was comprised of MAGA followers who were verified on Twitter. The members of the group used Twitter to exchange private direct messages with one another. Straka provided information about an individual, Ali Alexander, who was part of the MAGA Verified group.

There are a few problems with the story. First, as J6C pointed out to Straka, he was already organizing a vote fraud event, to take place after the election, before the election.

So we’ll give you time to look at this document, but it is it looks like it’s a permit 3 application filed by WalkAway Campaign. ~The date is October 28 of 2020. It’s for John 4 Marshall Park, and it’s scheduled — the proposed scheduled date is for November 15th.

If we go down to the second, page, the purpose of the event is a demonstration for free and fair elections. So help us understand, why did you –what were you thinking about on October 28th to want to have an event on November 15th about free: and fair elections?

In response to this observation, Straka bullshitted for a while and then gave up.

It just didn’t make sense, he said.

A Julie Hanson is an event planner that we’ve worked with over – for years on various events that we’ve done. I can’t answer this question, because this doesn’t make sense to me. I don’t know if she made a mistake when she put the date on the application, or if I don’t want to speculate why Julie put that date on the application, but I can tell you this doesn’t make sense to me, because I thought that Donald Trump was going to win the election, and my reaction to how the election turned out began on November 5th. So it makes no sense to me that I would’ve done – I would’ve asked to submit an application a week before the election. That doesn’t make sense to me.

Q So it’s your just want to make sure we have your testimony clear. You don’t recall instructing Ms. Hanson or approving an application in October for this event after the election on November 15th?

A Not in October, I don’t recall that. I — again, it just doesn’t make sense.

Right: This story doesn’t make sense. That’s the problem.

Plus, as J6C pointed out, the hash tag was actually in use well before the election. After Straka engaged in a really long spiel about how he didn’t much care of Ali Alexander registered the hash tag — “I just want[] to be told where to show up, what time, and where’s the microphone” — (as he said about January 6), J6C asked about the timing again.

Q Got it. That brings me back thank you, that was helpful. That brings me back, though, to the permit application from October 28th. It looks like Stop the Steal, the hashtag, I mean, was really starting to get traction early as September 7th of 2020.

We’ve seen tweets of Jack Posobiec doing it.

So do you recall maybe filing this application in October, for November 15th, to advance the Stop the Steal messaging that was starting to percolate in September, October, and November of 2020?

A Again, it just doesn’t make any sense to me. That – because I believed wholeheartedly that Donald Trump was going to win the election. ~ So it ~ it just doesn’t make sense to me that I would’ve decided a week before the election to submit a permit under the assumption that we’re going to lose the election. It just – that just doesn’t add up inmy mind.

In fact, J6C already knew that the hashtag had been in use even longer than that.

Though Ali Alexander, in his December 9, 2021 testimony, had tried to distinguish the hashtag from everything else, when asked why he suggested he should sue the Kremers after Roger Stone was denied a speaking slot on January 6, Alexander explained,

And there was all this pretense that, you know, Roger Stone is the gentleman who came up with the phrase Stop the Steal. I have, you know, this gentleman’s agreement with him that I  have a perpetual use of the license.

And the FBI would know that Stop the Steal went back to 2016, because abundant evidence about it would have been collected by Robert Mueller’s team.

So no one should have believed Straka’s explanation.

I have long raised questions about whether DOJ allowed itself to be snookered in giving Straka a sweet plea, when instead they should have charged him with obstruction. There’s nothing in the filings unsealed in recent days to alleviate my concerns.

That’s true, first of all, because two of the things he threw at prosecutors seem to have been chum, waste material thrown out to distract predators. Straka provided second-hand information from someone who may have been in Nancy Pelosi’s office.

Information that Elijah Schaffer was inside of Nancy Pelosi’s office that is currently being investigated. It is unknown whether any other information has been discovered by the Government concerning this lead.

The government still had not verified the tip a year later.

On March 5, 2021, Straka was interviewed by the FBI a second time. Sometime after his first interview, Straka recalled that an individual, David Leatherwood, told him that an individual, Elijah Schaffer, was inside of Nancy Pelosi’s office on January 6. This information is being investigated for its accuracy.

And Straka, just before sentencing, provided the name of a guy he lived close to in Nebraska (but had not previously known), an identification he claimed came from someone he didn’t even know on Twitter.

On information and belief, Mr. Straka positively identified Gavin Crowl as an individual who participated in January 6. Mr. Crowl’s identity had not been previously provided by anyone to Law Enforcement for almost eleven months. Mr. Crowl is a convicted Sex Offender who has been placed on the Sex Offender Registry in Nebraska. His identity was confirmed by using information provided on the Sex Offender Registry, and by cross-referencing public information from his LinkedIn profile with information he provided in an Internet interview with Bobby Powell, a Government-identified “insurrectionist advocate”. This individual can be heard encouraging the crowd to take the shield of the officer in the video recorded by Mr. Straka. Other video information provided by Mr. Straka shows this individual moving toward entering the Capitol before he was stopped. It is unknown whether this individual actually did enter the Capitol Building; and what other criminal activity he participated in.

His J6C interview makes it clear Straka shared this guy’s name for the purpose of floating conspiracy theories about Antifa.

A Okay. So I — it had been brought to my attention by somebody on social media who I  don’t know, a complete stranger, had essentially reached out to me to tell me that they had identified somebody in a video who was at the Capitol who they said this person told me that they identified a person who they said was a member of antifa.

This person told me, I watched this person dressed entirely in black from head to toe, and they said, then he went away for 10, 15 minutes or whatever, and he came back dressed asa Trump supporter. And he was causing agitation, you know, et cetera.

I engaged in a conversation with this person, because the person said to me, I have this on video, or something like that, and I said, Okay. So I looked at the video that the person was talking about, just because it sounded interesting to me, and I was shocked when I discovered that recognized this person as being somebody who was standing directly beside me in my video when I was on the Capitol steps.

Now, you know, I know for a fact that one of the crimes I’m — I was accused of committing was being in a restricted area. So this person had certainly committed the same crime that I committed, and I was also very curious if this person might’ve been encouraging the crowd in ways that it was alleged that I was encouraging the crowd.

And so, I asked this person if they knew the identity of this individual, and this person said, Yes. And so he gave me the name of this individual. I googled this individual and discovered that this individual has a violent criminal record.

At that point – and –and I also discovered that this person lives, coincidentally, very close by where I live.

According to the government sentencing memo, they did open an investigation into Crowl; it was new information for them.

On December 8, 2021, counsel for Straka provided the government with information regarding a United Capitol rioter who was at the U.S. Capitol. Straka recalled observing the individual while he was standing outside on the steps outside of the East Rotunda Doors. This individual stood nearby as a U.S. Capitol Police Officer’s protective shield was taken away from him. Straka believes that the individual joined in with the crowd yelling “take it, take it,” as rioters struggled with the officer to take his shield. After January 6, the individual, identified by Straka as Gavin Crowl, participated in an interview with insurrectionist advocate, Bobby Powell. Crowl recounted what he observed at the U.S. Capitol. Straka and Crowl reside in Nebraska and live within a short distance of each other. Straka’s information is beneficial in that Crowl was not previously identified by the FBI prior to Straka’s identification of Crowl.

[snip]

Based in the information provided by Straka, the FBI has opened an investigation into Crowl and his conduct at the U.S. Capitol on January 6.

Crowl is the one, notably, that Straka claimed to be afraid of, not Trump people threatening to retaliate (though DOJ submitted exhibits of texts from someone else demanding that Straka recant his testimony).

This violent sex offender, if he learns of Mr. Straka’s cooperation in identifying him (which would be the primary reason for any subsequent arrest and prosecution) has a predatory and aggressive history, which could easily result in retaliation against Mr. Straka or his family.

Crowl has not yet — publicly, anyway — been arrested, and even if he was, it’s not clear he ever did anything more than trespass outside the building.

While the tip may have been helpful, it was not cooperation about things that Straka was uniquely positioned to know.

The single prosecution on which Straka’s cooperation was said to help (usually the standard for credit at sentencing) was Simone Gold, the anti-vax activist who was arrested even before Straka was in January 2021, and who had already been charged with felony obstruction six days before the February 11 Straka interview where he first provided the information. In its sentencing memo, the government said Straka provided a voice mail that might help get Gold to plead.

Straka provided the government with voicemail messages that he received from Gold, whom he met in Washington D.C. on either January 5 or 6. The information contained in the voicemail messages is valuable in the government’s prosecution of Gold and may assist in a plea resolution of the Gold prosecution.

After further delay, Gold did plead out, not to the felony obstruction count, but to the more serious trespassing count. Her plea agreement had the standard cooperation paragraph in it, which sometimes suggests that the person had not yet sat for the further FBI interview required by virtually all misdemeanor pleas. The government sentencing memo in her case laid out several ways she continued to delegitimize her prosecution — and fundraise, to the tune of $430,000 — off it. In short, there’s absolutely no evidence that DOJ used the information Straka provided on Gold to advance the overall investigation. It made a misdemeanor plea easier to get, but not much more than that.

Gold is more likely to be held accountable in a lawsuit by her anti-vax group, which has split into factions over how she grifted the fundraising from it (though the failed attempt by Gold’s attorney, Kira West, to drop her as a client may suggest there might be legal accountability for the grift, as well).

The combined memos make it clear that the government viewed Straka’s cooperation to be most valuable for his insight into Stop the Steal, especially Alexander. Straka himself describes identifying people on one of the Stop the Steal threads (though this sounds like the known Twitter DM list; in his J6C transcript, he described a Signal thread as well).

Contact information regarding the following members of the Stop the Steal text thread, to include: Ali Alexander, Michael Coudrey, Scott Presler, Ashley St. Clair, Nathan Martin, Courtney Holland, Megan Barth, CJ Pearson, Ryan Fournier, and another telephone number unknown to Mr. Straka.

There’s a non-zero chance that the tenth number is either that of Paul Gosar or one of his staffers, because he was on that Twitter thread (and Straka filibustered about him when asked by J6C).

There are reasons for concern, though. None of the documents pertaining to Straka — from either J6C or DOJ — mention Mike Flynn, next to whom Straka sat at the Ellipse rally, which is particularly important given Straka’s description that he went back to the Willard after the rally.

And in the discussion of Straka’s information on the organizers of Stop the Steal (Straka did not mention Caroline Wren, though he may not have understood her role), DOJ adopts the same misspelling of the Kremers’ name as Straka did: “Kremmer” rather than “Kremer.”

Straka provided information about “Stop the Steal” members Amy Kremmer, Kylie Kremmer, Cindy Chafian. This information was useful in that it identified members of “Stop the Steal.” Neither the Kremmers nor Chafian are being prosecuted by the government at this time.

Note that J6C seemed not to have communications between Straka and Chafian that should have been in his production.

How aggressively must prosecutors be following this if, over a year into an investigation of January 6, they’re still not clear on who the Kremers are, whether or not their actions are deemed suspect?

And Straka’s memo seems to confirm my fear that DOJ had not yet turned to the earlier incitement from Stop the Steal — which was a key threat to state lawmakers are they were considering whether to support Trump’s coup attempt — until his third interview, in January 2022.

Additional information concerning Michael Coudrey, Scott Presler, Ashley St. Clair, Courtney Holland, Megan Barth, CJ Pearson, and Ryan Fournier, Amy and Kylie Kremmer, Cindy Chafian, Alex “Bruisewitz” (spelling unknown), Crystal (LNU) (an organizer and logistics person involved in rallies for President Trump), and Jenny Beth Martin; as well as information about specific rallies held in the months prior to January 6, was provided during Brandon’s third interview. [my emphasis]

Brandon Straka played a central role in intimidating election workers in my state of Michigan in 2020, and the government got all the way to sentencing before asking him about that process. That pisses me off and raises real questions about how thoroughly they investigated Straka before agreeing to a misdemeanor plea.

In his J6C interview, almost seven weeks after that third interview, Straka revealed that FBI at that point still retained all his devices except his phone. Three months after his third interview, DOJ subpoenaed Alexander. DOJ may not be done with Straka.

It may be that the trade-off — of getting immediate access to his devices rather than waiting to crack whatever security he had — still made the plea worth it. It may be that that early cooperation, and more importantly, the follow-up in January 2022, provided DOJ information they couldn’t have gotten without a lot more effort.

But J6C, without warrants, was able to poke a key hole in Straka’s story. At least on the public record, it seems that FBI was not so thorough, even with warrants and seized devices in hand.

Links

Timeline

January 11, 2021: Tip on Straka’s post to Twitter

January 13, 2021: Interview with Straka relative

By January 13, 2021: Straka removes January 5 video from Twitter; last view date for December 19, 2020 video cited in sentencing memo but not arrest affidavit

January 20, 2021: Straka charged by complaint

January 25, 2021: Straka arrest

February 17, 2021: First FBI interview

February 18, 2021: First continuance

March 25, 2021: Second FBI interview

June 3, 2021: Second continuance

July 2, 2021: Protective order

August 25, 2021: Third continuance

August 31, 2021: Date of plea offer

September 14, 2021: Deadline to accept plea

September 15, 2021: Straka charged by information

September 30, 2021: Stuart Dornan files notice of appearance for Straka

October 5, 2021: Updated information

October 6, 2021: Change of plea hearing (plea agreementstatement of offense); sentencing scheduled for December 17, with initial memo due December 10 and response due by December 15

Between October 7 and November 19, 2021: Pretrial services interview (sealed docket #28)

November 19, 2021: Brittany Reed substitutes for April Russo

December 8, 2021: Sentencing reset for December 22; sentencing memo due by December 15; Straka “provide[s] counsel for the government with information that may impact the government’s sentencing recommendation”

December 9, 2021: Ali Alexander J6C testimony

December 10, 2021: Straka shares sentencing position (possibly filed under seal)

December 11, 2021: Government tells defendants it seeks to continue, tells Straka it will consider request to dismiss case

December 16, 2021: Last view date for 2018 Straka video, Walkaway Foundation website, WalkAway Campaign PAC website, WalkAway Campaign YouTube Channel; ProPublica article on Michael Courdrey message (and attempts to distance Alex Jones and Ali Alexander)

December 17, 2021: Motion to continue (presented as joint) 30 days

By December 23, 2021: Sealed motion attempting to seal publicly filed motion to continue, denied by Judge Friedrich

January 5, 2022: Third FBI interview, this time including prosecutors (plural)

January 13, 2022: Government sentencing memo (sealed addendum at docket #37); government denies Straka request to dismiss case

January 14, 2022: Bilal Essayli files notice of appearance for Straka

January 20, 2022: Straka sentencing

February 22, 2022: Brandon Straka J6C testimony

April 8, 2022: Ali Alexander reports receiving a subpoena

June 24, 2022: Ali Alexander grand jury appearance

About Your Pence Special Counsel Complaint: On the Missing Coverage of Section 600.2(b)

I’m seeing people ask why Merrick Garland hasn’t appointed a Special Counsel yet to investigate Mike Pence when (the claim is) he did for President Biden.

The answer is … that’s not what happened.

DOJ learned about the documents at Pence’s house no earlier than January 18 (probably on January 19), so seven or eight business days ago.

At this stage of the Biden review (seven days after DOJ learned about the documents from the Archives), Garland hadn’t appointed US Attorney for Chicago John Lausch yet. As Attorney General Garland explained when he announced the appointment of Robert Hur, ten days after DOJ learned about the documents at Biden’s office, he asked Lausch to investigate:

  • November 4: DOJ learns of the Biden documents
  • November 9: FBI starts an assessment
  • November 14: Garland appoints John Lausch

More importantly, Lausch wasn’t appointed as a full Special Counsel under 28 CFR 600.4, which is what Jack Smith was appointed under. Rather, Garland appointed Lausch under 600.2(b).

On November 14, pursuant to Section 600.2(b) of the Special Counsel regulations, I assigned U.S. Attorney Lausch to conduct an initial investigation to inform my decision whether to appoint a Special Counsel.

Section 600.2(b) permits the Attorney General to appoint someone to conduct an “initial investigation” to better inform the decision whether to appoint a full-blown Special Counsel.

Importantly, Garland didn’t reveal that he had appointed Lausch until the day he appointed Hur, this time under 600.4.

So Garland could well have appointed someone — could be Lausch, could be Hur, could be someone who wasn’t appointed under the Trump-Pence Administration, as both Lausch and Hur were — to conduct an initial assessment regarding Pence’s documents without telling the public, just as he did with Biden. If he followed the same approach he did with Biden, he might not reveal that step unless and until he appointed a full Special Counsel.

Check back on March 17 to see where DOJ is with a Pence review, which would be the same almost two months out as it took to appoint a Special Counsel with Biden.

Maybe by then someone will have been appointed to review the classified holdings of all former Presidents and Vice Presidents.

To anticipate one more complaint, about why Garland waited nine months after the discovery of classified documents in boxes that had been at Mar-a-Lago before appointing Jack Smith: DOJ started using a grand jury no later than May 11 in Trump’s case, which is when they sent a subpoena for all documents with classification markings (I believe the subpoena reflects a grand jury seated on April 27). The subpoena came just over two months after FBI received the NARA referral on February 9. The timing of the Special Counsel appointment pivoted on the fact that Trump announced his his run for President, not the intensity of the investigation.

In fact, Garland might not appoint a Special Counsel if Pence doesn’t formally announce (if even there’s cause to do so).

It’s not at all clear that these investigations should follow a parallel track. But even if they should, Pence has not yet been treated differently than Biden.

“Why Did Mike Pence Wait So Long to Reveal His Stash of Classified Documents?”

At a press availability yesterday, Merrick Garland repeated a line he often uses, that DOJ applies the law the same for everyone.

“We do not have different rules for Democrats or Republicans, different rules for the powerful or the powerless, different rules for the rich and for the poor, we apply the facts, and the law in each case in a neutral, non-partisan manner,” Garland told reporters during a press availability at Justice Department headquarters. “That is what we always do.”

Many of the reporters covering it treated it as a comment about DOJ’s handling of the Trump and Biden classified document inquiries. Maybe it was.

Little did anyone know, though, that Garland might well have had the FBI’s collection of about a dozen documents with classified markings from Mike Pence’s home in mind.

Greg Jacob first told the Archives about the documents on January 18, six days ago and two days after the search. The next day, the FBI arrived in Indiana to collect the documents, which Jacob complained was against standard protocol. Yesterday Pence’s staff delivered several boxes to the Archives to check for adherence to the Presidential Records Act.

I don’t much care that Pence didn’t immediately run to the press to announce the documents, but it is the kind of thing that journalists who are good at horse race coverage, unaware of many of the thus-far distinguishing details about the Trump documents, and ill-equipped to cover classified documents stories latched onto with Biden.

So in an effort to provide some structure for the kids-chasing-a-soccer-ball-like coverage we’re already seeing, here’s a table that summarizes what we know and don’t know about all three cases.

Until we have answers about some of the details that currently distinguish Biden and Pence from Trump — like whether they knew of the documents (both claim they did not), whether they ever accessed the documents after leaving office, whether we have reason to believe they’re harboring more — this should not be a story.

And the key difference, one that should be included in every story that tries to make such a comparison, is that Trump refused to give documents back, whereas Biden and Pence freely offered them up.

The reason that’s important, aside from the both sides drama of it, is that it is an element of the offense that would be most likely to be used if DOJ took the unprecedented step of charging a former Original Classification Authority with harboring classified documents.

As we can now see, it happens that men who have aides pack them up at the end of their tenure go home with documents they didn’t know they had. It happens. (By the time Kamala Harris leaves, there’s likely to be a new protocol in place, so Harris can set a perfect record as the first woman being packed up.) What matters — what distinguishes a mistake from a potential crime — is what you do with the documents when you become aware you have them.

It’s possible we’ll learn details that suggest Biden knowingly stashed classified documents. But thus far, we don’t have any such details. And that should — but thus far has often not — show up in any competent coverage.

When Your Lawyer is Acting Like H.R. Haldeman, It’s Time to Get a New Lawyer

President Richard Nixon and his Chief of Staff HR Haldeman, before Nixon resigned in disgrace and Haldeman went to prison for 18 months after being convicted of perjury, conspiracy, and obstruction of justice.

When Cassidy Hutchinson’s September 14, 2022 testimony to the J6 committee first came out, I remember being struck by three sentences in bold below (emphasis added) as I read it (from p. 48):

Ms. Hutchinson. And then just, at the end of that meeting, we had — because I had asked him about doing the, like, mock question preparation, and he said, “No.” So said, “Well, do you recommend anything that I can do to prepare for next week?” He’s like, “Get a good night’s sleep,” like, a few wishy-washy things.

And he said, “Don’t read anything about this on the internet.” He said, “Again, Cass, like, just trust me on this. I’m your lawyer. I know what’s best for you. The less you remember, the better. Don’t read anything to try to jog your memory. Don’t try to put together timelines.”

And he was like, “Especially if you put together timelines, we have to give those over to the committee. So anything you produce we have to give over to the committee. So l really” — he was like, “You can have things in front of you, but really don’t want you to, because we have to give that to the committee.”

So now I’m like, oh now I’m kind of scared. — Like, what if I want notes in front of me and he gets mad at me because I have to give them to the committee now? I didn’t know I would have to give them to the committee, but he told me I did, and he was my lawyer, so I was trying to trust him.

This wasn’t the only place in the transcript where words like these were used – they were almost a refrain. “Where have I heard this before?” I asked myself, then kept reading. Over this past weekend, while helping my mom clean out some old magazines, the penny dropped.

The date was March 21, 1974 1973 [corrected] – two days before the scheduled sentencing of the convicted Watergate burglars. At the White House, things were tense, as the scandal was growing and the coverup was in the process of unraveling. President Nixon, Chief of Staff H.R. Haldeman, and White House Counsel John Dean met for almost two hours, taking stock of the mess and looking for possible routes forward. They discussed additional payments to keep people quiet (noting that earlier payments had bought them silence through the 1972 election), and tried to figure out how to sideline the recently formed Senate Watergate committee chaired by Sen. Sam Ervin (D-NC).

Toward the end of the meeting, Nixon brought up a suggestion from his Domestic Policy Advisor  (and former White House Counsel) John Ehrlichman: instead of letting the Ervin committee run riot in public, announce that all this was going to a new grand jury. From the transcript of the Nixon tapes (with all the typos, punctuation, etc. in the original, but with emphasis added):

PRESIDENT:    John Ehrlichman, of course, has raised the point of another grand jury. I just don’t know how you’re going to do it. On what basis. I, I could call for it, but I…

DEAN:              That would be, I would think, uh…

PRESIDENT:    The President takes the leadership and says, Now, in view of all this, uh, stripped land and so forth, I understand this, but I, I think I want another grand jury proceeding and, and we’ll have the White House appear before them.” Is that right John?

p. 89 [sic, should be 88]

DEAN:              Uh huh.

PRESIDENT:    That’s the point you see. That would make the difference. (Noise banging on desk) I want everybody in the White House called. And that, that gives you the, a reason not to have to go up before the (unintelligible) Committee. It puts it in a, in an executive session in a sense.

HALDEMAN:   Right.

PRESIDENT:    Right.

DEAN:              Uh, well…

HALDEMAN: And there’d be some rules of evidence. aren’t there?

DEAN:              There are rules of evidence.

PRESIDENT:    Both evidence and you have lawyers a

HALDEMAN: So you are in a hell of a lot better position than you are up there.

DEAN:              No, you can’t have a lawyer before a grand jury.

PRESIDENT:    Oh, no. That’s right.

DEAN:              You can’t have a lawyer before a grand Jury.

HALDEMAN: Okay, but you, but you, you do have rules of evidence. You can refuse to talk.

DEAN:              You can take the Fifth Amendment.

PRESIDENT:    That’s right. That’s right.

HALDEMAN: You can say you forgot, too, can’t you?

DEAN:              Sure. –

PRESIDENT:    That’s right.

p. 89

DEAN:              But you can’t…you’re…very high risk in perjury situation.

PRESIDENT:    That’s right. Just be damned sure you say I don’t…

HALDEMAN:  Yeah…

PRESIDENT:    remember; I can’t recall, I can’t give any honest, an answer to that that I can recall. But that’s it.

Hutchinson is too young to have lived through Watergate, but she clearly recognized that Stefan Passantino was acting more like he was more worried about someone else’s legal issues and not her own. It took her a while, but she eventually punted him and found a legal team who agreed to work on her behalf.

Passantino was clearly channeling his inner Haldeman when he told Cassidy Hutchinson “The less you remember, the better.”

Maybe this is a new entry in the DC book of Proverbs: “When your lawyer is acting like H.R. Haldeman, it’s time to get a new lawyer.”

Johnny McEntee: Enforcer of Trump’s Authority to Invoke the Insurrection Act

CNN’s ace Prettyman stakeout reporters spied John McEntee, Trump’s body man turned personnel enforcer, going into a grand jury appearance Friday.

That led me to spend quality time with his January 6 Committee transcript this weekend; I was trying to get a sense of whether this interview — one of the first that would have been scheduled after DOJ had an opportunity to read J6C transcripts turned over in early December — gave a sense of why Jack Smith prioritized McEntee.

I agree with CNN, this is likely part of it:

When testifying to the House committee, McEntee recalled a meeting in the Oval Office on Vice President Mike Pence’s role in certifying the election, in which he said he was asked to look into precedent. McEntee also recounted in-person exchanges between Trump and Pence, in which he heard Trump say, “Michael, do the right thing,” and “Do what you think is right, Mike.”

Here’s how it appears in the transcript.

Q Did you ever witness any conversations between the President and the Vice President about the Vice President’s role?

A No. No.

Q Or any phone calls? Anything like that?

A I remember the President saying, “Michael, do the right thing.” You know, “Do what you think is right, Mike.” That’s all I heard him say.

Q You heard him say that to Vice President Pence?

A Yeah.

Q Was it over the phone or in person?

A In person.

Q Okay. And was that in the Oval Office?

A Yeah.

Q Was anybody else there?

A I think Short was there, yeah.

Q Do you remember when that was?

A I don’t. It was, like, when he was going up for the evening, the President, and they were just finishing something up, so I came in to, like, grab all his stuff, and then he said that to him.

Q Okay.

A At the conclusion of the day at some point.

Q And did the Vice President say anything in response?

A No. He just nodded.

If credible, it would be exculpatory. DOJ needs to interview anyone who might have exculpatory information before they make a decision to charge Trump.

They may also be trying to get all testimony about Trump’s comments to Mike Pence before they move to interview Mike Pence, because they’d need to make a case they couldn’t get his testimony anywhere else.

But McEntee was not particularly credible, and I would imagine with call records and other testimony, DOJ would be able to prove that.

Indeed, even in the J6C testimony, McEntee got caught providing a dubious explanation for a call he had with Trump after the attack on January 6. At first, he claimed most of his conversation with Trump consisted of “colorful” comments about the people who resigned on January 6.

Q Did President Trump ever talk to you about the events of January 6th even after the fact?

A Just vaguely that night when we spoke.

Q Okay. Tell us about that conversation.

A I called, and I just went down the list of all the people who had resigned.

And then we discussed a little bit about each just colorfully. And then he just said this is a crazy day and, you know, I’ll see you tomorrow. But he didn’t go into many details.

Q Okay. Can you remember anything else he said about the events of that day?

A I can’t, other than he acknowledged that it was, like, wild, and we would talk tomorrow, you know, or next — we’ll see you in the morning, or something like that.

Q Okay.

A We were mostly going through all these people that resigned, and then kind of talked about them. And I was just relaying, because O’Brien called me and said you got to let him know I’m not resigning. So then I called, and he said, well, who has resigned? And then, like, I went through the list of the ones I knew at the time. And then the next day some more came out.

Q When the President said it was a crazy day, or something to that effect, what was his tone?

Q A Kind of like a little disbelief. Like, wow, like, can you believe this shit, you know?

A  Did he express any sadness over the violence?

Q No. I mean, I think he was shocked by, you know, it getting a little out of control, but I don’t remember sadness, specifically.

But in a final question, J6C pointed out the problem with that. Trump didn’t know any of the people who resigned on January 6; the people he knew who resigned only resigned on January 7.

Q I just want to ask, that conversation that January 6th evening, I think from the — the diary indicates it’s a 20-minute-long conversation. And you described it.

Many of the people who resigned that day Mr. Trump didn’t even know. In fact, the ones that he did know didn’t resign till the next day.

So 20 minutes is a long conversation, Mr. McEntee, and I’m wondering if you could just describe, when you say “disbelief” and “day is crazy,” what more color can you add to the feelings of that day as expressed to you?

A You know, it’s hard to remember, honestly. I don’t remember any details we went into about it. I know we went through each person, and I had to explain who each person was, so that took a minute or two on each –

There are other parts of McEntee’s testimony that strain credulity. He has little explanation for how he spent his day on January 6. He claimed not to understand most of what he was doing as he served as a go-between, between Steve Bannon and the White House via Bannon’s Chief of Staff Alexandra Preate. His response to being asked about a rumor that he slept at the White House for several days after the attack was weak — “not that I’m aware of.”

McEntee also described Trump using his (McEntee’s) phone — and he was a bit squishy about whether it was just his White House phone, or also his personal one — from time to time. McEntee likely learned this habit from working with Keith Schiller, who offered the same service as a body man.

But there’s an aspect of McEntee’s testimony that is far more alarming.

Shortly after returning to the White House in 2020, he was elevated to run personnel. He was wildly unqualified for the task, as intended for a government bureaucracy, but he was quite adept at politicizing every bit of the political appointment process, and demanding absolutely loyalty in the process.

And in that role, McEntee served as a means to drive the policy of the entire Pentagon.

The committee first reviewed McEntee’s role in firing Mark Esper for refusing to invoke the Insurrection Act during the summer of 2020. Then it turned to how, after simply interviewing Douglas MacGregor for an advisory role at the Pentagon, McEntee sent a memo to DOD ordering them, days after the election was called for Biden, to withdraw from Afghanistan and Somalia.

The exchange led his attorney, David Warrington, who at the time was paid by Trump’s PAC and who still represents a slew of January 6 witnesses, to go on an extended complaint about the scope of questions.

McEntee’s role in enforcing policy came up again in an exchange about the response to Army Secretary Ryan McCarthy saying, on December 18, that the military would play no role in determining the outcome of the election.

On December 18th, the Secretary of the Army, Ryan McCarthy, and the Army Chief of Staff issued a statement that there was no role for the U.S. military in determining the outcome of an American election.

Do you remember what impact, if any, that had on the White House?

A I don’t remember that being brought up.

Q Do you remember conveying a message to Secretary Miller about the White House’s frustration that DOD, particularly the Secretary of Army, had issued such a  statement?

A No, I don’t remember. I don’t remember that.

Q Secretary Miller told the committee that he was contacted by you soon after the statement was made and you asked why McCarthy made the statement and, quote, “wanted me,” meaning Mr. Miller, “to remind McCarthy that the President was not going to — it was — I know this sounds kind of wonky, but it was an authorities issue. He,” meaning you, “said the President is not going to invoke the Insurrection Act but that doesn’t mean he couldn’t, which I thought was an interesting comment because it dealt with the authority, not so much — the concern was not with what McCarthy said, was the way I interpreted it. It was the fact that the Secretary of Army was saying he had authorities that actually resided with the President.”

This was a response to Mike Flynn’s call for martial law, but it also came after Stewart Rhodes had already called for Trump to invoke the Insurrection Act several times. And it also came as Flynn and others were advising Trump to seize the voting machines.

After getting McEntee to deny remembering this and claiming any interference at DOD was simply in his role as Assistant to the President, J6C then brought out a note, written by McEntee, that Trump or someone else had ripped up before it was preserved by the Archives.

It showed that McEntee had intervened in this response in a personnel, not an assistant, function — because he got Miller to agree to fire McCarthy and others if they ever made comments about DOD’s role in the election again.

McEntee claimed he remembers none of that.

Q One second. Sorry.

These are handwritten notes that have been produced to us from the National Archives.

Is that your handwriting, Mr. McEntee?

A It looks like it, yes.

Q And it looks like the page has been torn. But it says, “Chris Miller spoke to both of them and anticipates no more statements coming out.” And then in parentheses, “If another happens, he will fire them.”

Do you remember writing this?

A No, I don’t remember writing this.

Q But this is your handwriting?

A Yes.

Q So, just want to be clear. This is your handwriting, but you have no memory of calling Secretary Miller and requesting him to call Secretary McCarthy to express the President’s disappointment with the statement regarding there’s no role of military in the United States election?

This is important background to McCarthy’s indolent response to the attack on January 6. Trump’s chief enforcer had already intervened to make sure he didn’t do anything to fall afoul of Trump’s whims.

But it’s also important background to another comment in the interview.

As I suggested in this post, the J6C transcripts make it clear that a long-public reference to Trump requesting 10,000 National Guard on January 3 was misrepresented, no doubt deliberately so. Trump made the request not, as reported, in the interest of keeping his followers safe. Rather, he first floated having 10,000 Guard after it became clear the National Park Service would not approve a permit for a march to the Capitol, out of security concerns.

Effectively, Trump floated having 10,000 Guard present on January 6 to enable his march to the Capitol.

And that, plus McEntee’s role in firing Esper because he refused to invoke the Insurrection Act and his threats of firing McCarthy because he said DOD would not intervene in the election, makes this reference all the more chilling. When asked about his role in the rally, McEntee described that he intervened to ask Christopher Miller to involve the Guard.

Q Did you have any conversations with the President that day?

A Only that night.

Q Okay. We’ll get to that in a minute. Did you go to the rally on the Ellipse?

A No.

Q Were you involved in any conversations about planning the rally?

A No.

Q Were you aware of any discussions about groups such as the Proud Boys, Oath Keepers, or anybody else being involved in the protests?

A I was not. The only thing I had to do that even remotely dealt with the rally was the President wanted to make sure it was safe. And either a day or two or three before, he had me call Chris Miller and ask if we could bring the National Guard in.

Q Okay. What did Mr. Miller say?

A I think he said he would look into it.

Q And do you know if anything happened after that?

A I don’t know if anything happened or came of it, no.

Q Did you report back to the President on what Secretary Miller said?

A I just let him know that I relayed his message to Chris, yeah.

Having earlier claimed not to recall using threats of firing to make demands on DOD and having earlier disclaimed any knowledge of Trump’s plan to walk to the Capitol, here’s the bullshit explanation McEntee offered for why Trump wanted to involve the Guard.

Q And did the President say anything about why he wanted the National Guard there?

A I think because that summer we had the Republican Convention. And if you remember, like, Rand Paul was getting attacked in the street. And, I don’t know, it just got kind of crazy. So this time he thought we’re going to have so many people, like, you know, we need to make sure that this city is safe. That kind of a thing.

Q Do you know why he said it to you?

A No, I think it was just on his mind and I just happened to be next to him. So he said call Chris and let him know. So I just called Chris.

Q Were you traveling at the time?

A We could have been, like, golfing, yeah, or something. You know, we could have been at his golf course maybe.

As I said above, I agree with CNN that one thing Jack Smith’s team would have wanted to ask McEntee about was his claim to have heard, alone among all known witnesses, Trump say something exculpatory.

DOJ would also want to see whether McEntee wanted to reiterate some of the more fantastic claims he made to J6C, especially knowing that DOJ would have the legal means to disprove some of them.

DOJ likely would want to ask about a conversation McEntee had with Trump, along with Dan Scavino (who has definitely appeared before the grand jury) and Molly Michael (who has definitely been interviewed in the stolen document case and likely interviewed in J6C), about testifying to J6C.

But depending on what other witnesses DOJ has already interviewed, DOJ may want to know more about McEntee’s role in arranging an ostensible Praetorian Guard for the President as he walked to the Capitol as they moved to certify his loss.

McEntee was among the people referred to, publicly at least, in the mix for a pardon after January 6. In his interview, McEntee only discussed that pardon, if it happened, in the context of a blanket pardon for staffers involved in January 6.

It was never entirely clear why McEntee might need one.

Unless he has knowledge of Trump’s attempt to use the National Guard as a Praetorian Guard to accompany his own march on the Capitol.

“Several Work and Storage Areas:” Why DOJ Likely Doesn’t Trust Biden’s Personal Attorneys

Charlie Savage has a story that — while he doesn’t say it — likely explains why DOJ doesn’t entirely trust Biden’s attorneys on the classified documents and so appointed a Special Counsel.

The currently operative story, as told by Savage, is the following:

  • Biden’s lawyers found the Penn Biden documents and interviewed the people who packed the documents
  • Based on those interviews, they told DOJ other documents would only be at Penn Biden
  • Without telling DOJ (though after they learned that DOJ had started to investigate), “and not because of any new information,” they decided to check that premise by looking at the boxes in Biden’s garage
  • On December 20, they told DOJ about the documents marked classified in the garage
  • They then decided to search other office areas, this time telling DOJ they were doing so
  • When, on January 11, they found a page with classification marks inside one of those office areas, they stopped their searches; FBI would find 5 more pages when they came to secure that single page

But look at this timeline with other dates added:

  • Biden’s lawyers found the Penn Biden documents and interviewed the people who packed the documents
  • November 4: NARA told DOJ about the classified documents
  • November 9: FBI started its assessment
  • November 14: Garland appointed John Lausch
  • Based on Biden’s lawyers’ interviews of those who packed Biden’s boxes, they told DOJ other documents would only be at Penn Biden
  • Lausch interviewed some of the people who packed the boxes
  • Without telling DOJ, “and not because of any new information,” Biden’s lawyers decided to check that premise by looking at the boxes in the garage
  • On December 20, they told DOJ about the documents marked classified in the garage
  • On January 5, Lausch recommended Garland appoint a Special Counsel
  • At some point not IDed in Savage’s story, Biden’s lawyers decided to search other office areas, this time telling DOJ they were doing so
  • On January 11, they told DOJ about another classified page, possibly inside an office, then stopped their searches
  • On January 21, FBI did a thorough search of Biden’s Wilmington home and found 6 additional documents

Biden’s lawyers probably didn’t decide to do further searches until after Lausch started interviewing people. Already, if I were DOJ, I would want to know whether Biden consulted with the people being interviewed, and based on that, realized they needed to do further searches.

But we still don’t know two other things. Savage describes the second space in Biden’s home, which heretofore had been described as the room adjacent to the garage, as “several work and storage areas inside the living area of the house.” Which is to say, we still don’t know whether the January 11 document was found inside a storage space or an office, where documents would be used rather than just stored. Or rather, John Lausch knows that, Savage’s sources know that, but we don’t.

We also don’t know if Biden found out that Garland was going to appoint a full Special Counsel and only then decided to search the interior of the home.

Something led Biden’s lawyers to take more seriously the possibility that documents weren’t just stored at Biden’s home, but used there. And while this all still could be lawyers stepping on their own toes as they try to be helpful, even just based on what we know, from DOJ’s perspective, that toe-stepping would be indistinguishable from Biden’s lawyers responding to learning things they should have been told from the start, which is different from — but not that different from — Trump moving boxes to prevent Evan Corcoran from finding classified documents.

One more detail that is actually fairly damning. Savage describes that the documents at Penn Biden were copies; the originals are stored at the Archives.

One set was believed to be material that might be useful to Mr. Biden for his post-vice-presidential career in public life or teaching, like his speeches and unclassified policy memos about topics he was interested in. Those materials were initially shipped to two transition offices and then on to his office at the Penn Biden Center when it opened in 2018. (The National Archives and Records Administration would keep original copies of the official records.)

If Biden’s office sent originals of the classified documents found at Penn Biden to NARA, it makes their inclusion in documents sent to the policy office far less attributable to a mistake.

Biden’s lawyers have been feeding the press a story about how cooperative they’ve been. But so did Trump’s lawyers. Trump’s story was far more obviously bullshit — in part for the way they spun a claim that by adding a lock to Trump’s storage room, they had made it secure.

Though this line about the Biden search — offered up as proof of extreme cooperation — gets close to lock-on-door levels of spinning.

[T]he Biden legal team invited the F.B.I. to also search every room in the residence — including bathrooms, bedrooms and the utility room, the people said.

There are still key parts of Biden’s story that aren’t being explained, most importantly whether the documents discovered this month inside Biden’s house were discovered in storage or in an actively-used office. If DOJ knows that the difference between the two would be critical information for the public to know, then this story would only further degrade confidence in Biden’s lawyer on the part of DOJ.

This is not about the reliability of lawyers like Bauer. Rather, it’s about whether Biden’s lawyers got information at the start they needed. But if they did not, it means that DOJ can’t just trust, but must verify, everything Biden’s lawyers tell them.

What We Can’t Rule Out with Biden’s Classified Documents

The FBI did a consensual, almost 13-hour search of President Biden’s Wilmington home yesterday. The FBI found and seized six more classified documents “with surrounding materials” (some of which date from Biden’s time in the Senate) as well as hand-written notes from his time as Vice President.

Note that after Biden’s lawyer’s found a document in the room adjoining his garage, they stopped searching. DOJ came to fetch that document and took 5 more pages, all of which may have been in the same place. It’s possible (though in no way certain) that these additional documents were simply stored in the same place, the obvious outcome of DOJ’s effort to return and do a more thorough search.

The voluntary nature with which Biden has given information back to DOJ still starkly distinguishes him from Trump. And that comparison may give DOJ leverage to try to obtain the records it believes Trump still has.

But at this point, we can’t rule out several of the most damning details that are known to be present with Trump to also be present with Biden.

There are, as far as we know, at least three things that make Trump’s retention of classified records particularly damning:

  • The existence of a leatherbound trophy box in his office storing the most classified documents (alongside Time Magazine covers, which is one piece of evidence these are trophies)
  • The existence of 46 empty classified folders, which may be one reason DOJ suspects not all of Trump’s documents are accounted for yet
  • Two compiled documents integrating classified records with other materials, one dating from Trump’s presidency (the grant of clemency for Roger Stone) and one that includes at least 3 messages that post-date his presidency

I’ll review that last document, because it hasn’t gotten nearly enough attention yet.

One of the last filings released in Trump’s Special Master process, summarizing the disputes, described a “compilation” of two classified records (one Confidential, one Secret), and what appears to be four other documents: messages from a book author, a religious leader, and a pollster, as well as what appears to be a fourth document involving a lawyer. The messages all post-date January 20, 2021.

One potentially privileged document that had been scanned was removed from the database (SM_MAL_00001185 to SM_MAL_00001195). That document – excluding the one potentially privileged page (SM_MAL_00001190) – is discussed in the next section about the Filter Materials Log. The potentially privileged page is the subject of a separate letter from the Filter Team to Your Honor, which is sent today.

[snip]

This document is a compilation that includes three documents that post-date Plaintiff’s term in office and two classified cover sheets, one SECRET and the other CONFIDENTIAL. Because Plaintiff can only have received the documents bearing classification markings in his capacity as President, the entire mixed document is a Presidential record.

Besides the classified cover sheets, which were inserted by the FBI in lieu of the actual documents, none of the remaining communications in the document are confidential presidential communications that might be subject to a claim of executive privilege. Three communications are from a book author, a religious leader, and a pollster. The first two cannot be characterized as presidential advisers and all three are either dated or by content occurred after Plaintiff’s administration ended. [my emphasis]

In other words, this document, which was stored in a desk drawer, suggests that Trump used classified documents at least once after he left the White House.

While there are press reports that Trump otherwise accessed documents after DOJ started looking for them — in part, by curating the ones he was willing to send back in January 2022 and hiding some from Evan Corcoran so they wouldn’t be turned over in the June 2022 search — this compilation seems to show that Trump not only knew the classified records were in his home, but he used them, at least once, after he left the White House.

Given the discoveries in yesterday’s Biden search, we can’t rule that out in his case, either. Bauer’s statement described the FBI taking, “documents with classified markings and surrounding material,” which doesn’t rule out a compiled document — though it also could describe documents and the other contents of the folder or box they were found in, which would be consistent with how DOJ approached the search of Trump’s home.

And the seizure of hand-written notes from the time Biden was Vice President means we can’t rule out the equivalent of the letters from Kim Jung Un that Trump took, memorabilia that, because it pertains to foreign policy, should also be treated as classified (and would be covered by the Presidential Records Act).

Both both-sides journalists and hopeful lefties are jumping to conclusions about what the Biden seizures mean. The truth is, we simply don’t know yet. We know the most damning details about documents Trump had largely because of his legal challenges, not because they would otherwise be available from this kind of report on the investigation.

Here’s a comparison of what we know of the two cases:

The obstruction is still what distinguishes Trump from Biden, because DOJ would most likely charge a Constitutional officer only with 18 USC 793(e), refusing to given classified documents back. Biden has made multiple efforts to give documents back: Trump has made multiple efforts to refuse to give documents back.

But as for the other damning details we know exist with Trump? We can’t rule them out with Biden.

Update: I’ve changed the number of Biden docs, to allow for some uncertainty about these are being referenced. We don’t have the FBI inventory, like we do for Trump.

The Primary Thing Eric Herschmann Remembers from January 6 Is that Cassidy Hutchinson Was Wrong about That Note

There’s a funny detail in Cassidy Hutchinson’s September 14 January 6 Committee testimony.

She claimed that on May 20, after a third appearance before the committee and after firing her lawyer, Stefan Passantino earlier that day, Eric Herschmann called her and told her, “I didn’t know you remembered so much.”

And Eric called me that evening, and I just apologized. And he was like, you know, “I didn’t know that you remembered so much, Cassidy. Mark [Meadows] really put you in bad positions. I’m really sorry that he didn’t take care of you better. You never should’ve had to testify to any of that. That’s all of our jobs. I don’t know why they didn’t ask us, they asked you instead.”

And I was just like, “Look, Eric like, it is what it is.” And he kind of talked for — it was probably a 30-minute conversation.

“Remembered,” she described Herschmann saying, not “knew” or “witnessed.”

It’s an interesting word choice, if accurate, because in Herschmann’s testimony before the committee back on April 6 (and so after Passantino had sat through Hutchinson’s first two appearances before the committee, on February 23 and March 7), he didn’t remember much.

The word “remember” shows up (sometimes used as part of a question to him) 482 times in the transcript. The word “recall” shows up 166 times. The word “recollection” comes up 24 times.

Among the things Herschmann professed to have little memory of were the fake electors casting votes in December, Trump’s December 19 tweet announcing the January 6 event,  the date of a key January 5 meeting involving Marc Short and John Eastman, the details (beyond an “intellectual discussion about [John] Eastman”) of a call he had with Rudy Giuliani — out of the blue! — on the morning of the 6th, what he said to Pat Philbin to try to convince him to join him at the rally before proceeding on his own, what Trump said to him while waiting to speak at the Ellipse (Herschmann invoked Executive Privilege to cover a call between him and Trump at 10:50PM that day), any claims in Trump’s Ellipse speech that Herschmann knew to be bullshit,  what Mark Meadows, Dan Scavino, and Trump were talking about in the dining room after returning from the Ellipse, and whether he had auto-delete set for his texts.

What Herschmann did recall — aside from the times he screamed at Jenna Ellis, Sidney Powell, and John Eastman, which made him a hero of the January 6 Committee hearings — was writing a note calling on people to leave the Capitol.

Q So do you recall, did you tell them what was happening or did they seem to already be aware?

A I don’t remember. I know I wrote out something, but I don’t remember if they were aware when they came back or I told them when I came in. I just don’t remember that detail.

Q And why did you write something out?

A I thought we should put out a statement.

Q Okay. Do you remember what you wrote?

A I don’t remember the exact words, but I remember going down to Mark’s outer office, chief of staff, and asking someone there to get me something to write on. And normally, if I had to — if I was grabbing something, it would be the chief of staff.

They have one of those cards, I don’t know, it’s a rectangular card that says chief of staff.

Q So this was a handwritten note?

A It was a handwritten note, yeah.

Q Okay. Let’s go — we’ll pull up Exhibit 11. Is that the note you’re referring to?

A That is the note.

Q Okay. And what did you do with the note?

A The actual physical note.

Q Yeah. Did you give it to the President?

A No, I didn’t give it to the President. I may have given it to Meadows, but I didn’t hand it to the President. I would have — I think the reason I edited “illegally,” is someone had a discussion, I don’t remember who it was — and it wasn’t the President, but someone had the discussion, how do we establish it’s illegally — that they entered illegally? Which I thought, okay, I don’t want to say overlawyering, but overlawyering, in my view. So I crossed out “illegally” and said “without proper authority.” Okay, that solves that issue, right? And I thought we should put out the statement.

Q Did you tell the President that he should put out a statement?

A Generally, I had discussions with the President about putting out a statement. I don’t remember if I read this or I handed it to Mark, or Mark and I discussed it in front of the President. I just don’t remember that detail. But this was my first reaction to seeing the violence and what I thought the White House should do.

Q Did the President have a reaction?

A I don’t recall his reaction, but obviously he didn’t put out this statement. [my emphasis]

It’s funny that that was one of the few things Herschmann recalled on April 4, because after Hutchinson testified in her May 17 testimony to remembering a whole bunch of things that Herschmann couldn’t remember (including a discussion between Meadows, Herschmann, and Pat Cipollone about Trump’s comment that Mike Pence might deserve to be hung), she went on to publicly testify, on June 28, that she physically wrote that note as Meadows dictated it, with Herschmann chiming into to offer the alternative, “without proper authority.”

LIZ CHENEY: Now let’s look at just one example of what some senior advisers to the president were urging. Ms. Hutchinson, could you look at the exhibit that we’re showing on the screen now? Have you seen this note before?

CASSIDY HUTCHINSON: That’s a note that I wrote at the direction of the chief of staff on January 6th, likely around 3:00.

LIZ CHENEY: And it’s written on a chief of staff note card, but that’s your handwriting, Ms. Hutchinson?

CASSIDY HUTCHINSON: That’s my handwriting.

LIZ CHENEY: And why did you write this note?

CASSIDY HUTCHINSON: The chief of staff was in a meeting with Eric Hirschman and potentially Mr. Philbin, and they had rushed out of the office fairly quickly. Mark had handed me the note card with one of his pens, and sort of dictating a statement for the president to potentially put out.

LIZ CHENEY: And — no, I’m sorry. Go ahead.

CASSIDY HUTCHINSON: That’s Ok. There are two phrases on there, one illegal and then one without proper authority. The illegal phrase was the one that Mr. Meadows had dictated to me. Mr. Herschmann had chimed in and said also put without legal authority. There should have been a slash between the two phrases. It was an — an or if the president had opted to put one of those statements out. Evidently he didn’t. Later that afternoon, Mark came back from the Oval Dining Room and put the palm card on my desk with illegally crossed out, but said we didn’t need to take further action on that statement.

LIZ CHENEY: So, to your knowledge, this statement was never issued.

CASSIDY HUTCHINSON: It was — to my knowledge, it was never issued.

The difference between Herschmann and Meadows dictating the note to Hutchinson (who is not once mentioned in Herschmann’s testimony) and Herschmann writing it himself is negligible in the larger story, so he could have left it well enough alone. Especially given the number of times Herschmann claimed not to remember details of what happened with the note, such as how it was presented to Trump or how the then-President responded.

But Herschmann didn’t leave it well enough alone. Shortly after Hutchinson’s public testimony, Herschmann’s spox put out a formal statement claiming he had written the note.

“The handwritten note that Cassidy Hutchinson testified was written by her was in fact written by Eric Herschmann on January 6, 2021,” a spokesperson for Herschmann told ABC News Tuesday evening.

“All sources with direct knowledge and law enforcement have and will confirm that it was written by Mr. Herschmann,” the spokesperson said.

This statement became one of two bases — along with the pushback from people in the vicinity of Tony Ornato about the Beast story — on which Hutchinson’s credibility was attacked in the days after her testimony.

The discrepancy on the note could be just that, a discrepancy. All of Herschmann’s claimed memory lapses might one day come to be refreshed.

The dispute, however minor, between Herschmann and Hutchinson is noteworthy for several reasons though.

First, Hutchinson told the committee that the first time she met with Passantino, after being referred by Herschmann via Alex Cannon, she asked him if he was representing anyone else before the Committee. Passantino wouldn’t answer, but according to Hutchinson, he did say he had represented Eric Herschmann, among others, in the past, and that “we really want to work to protect Eric Herschmann.”

Ms. Hutchinson. ~ You previously asked about individuals he had raised with me. In my conversation with him earlier that afternoon, when I [sic] asking him about the engagement letter, I did also ask Stefan if he was representing any other January 6th clients. And he had said, “No one that I believe that you would have any conflicts with.”

And I said, “Would you mind letting me know?” Now, again, to this day, I still don’t know if that’s really a kosher question to ask an attorney, if they can share their clients with me, but I wanted to make sure that there actually weren’t any conflicts, because I didn’t have anything in writing.

He wouldn’t tell me anybody he was representing before the January 6th Committee, but he did tell me that he had previously represented Eric Herschmann and Jared Kushner and Ivanka Trump in unrelated matters.

And in that same conversation, he said, “So if you have any conversations with any of them, especially Eric Herschmann, we want to really work to protect Eric Herschmann.”

And| I remember saying sarcastically to him, “Eric can handle himself. Eric has his own resources. Why do I have to protect Eric?” He said, “No, no, no. Like, just to keep everything straight, like, we want to protect Eric with all of this.”

Ms. Cheney. Did he explain what he meant?

Ms. Hutchinson. No. And, to be honest, I didn’t ask. I didn’t have anything with Eric anyway that I felt that I had to protect. And I say that because, at the time of being back in Trump world — this is where I look back and regret some of this, but — like, I did feel a need to protect certain people. But with somebody like Eric, I didn’t feel that need, I didn’t find it necessary.  didn’t — I didn’t think that Eric did anything wrong at the time.

Ms. Cheney. Did it have something to do with NARA?

Ms. Hutchinson. He never really explained to me what it was exactly that we wanted to protect Eric on. I sort of erred on the side of: Maybe he just represents Eric in ongoing litigation, whether it’s financial disclosures or whatever it might be.

And, again, I just didn’t prod too much on that either, because, you know, I was under the impression that Eric helped set me up with Stefan, so I didn’t — I was worried that Stefan would then go back-channel to Eric and — this is my very paranoid brain at the time, but I was worried that if I, you know, pushed this subject a little too much, that he would then go back to Eric Herschmann and say, “Cassidy asked a lot of questions about you, like, why she needs to protect you.” So just didn’t really press the subject too much on that.

By the end of that first day, per her testimony, she learned that Passantino was business partners on the election-related business Alex Cannon had with Justin Clark and, possibly, Herschmann.

S0 I — “I want to make sure that I’m getting the dates right with these things?

He goes, “No, no, no.” He said, “Look, we want to get you in, get you out.

We’re going to downplay your role. You were a secretary. You had an administrative role. Everyone’s on the same page about this. It’s extremely unfair that they’re” “they’re” being the committee – “that the committee is putting you in this position in the first place. You really have nothing to do with any of this. It’s Mark’s fault that you’re even involved in this. We’re completely happy to be taking care of you now. We had no idea that you weren’t being taken care of this last year. So we’re really happy that you reached back out to us. But the less you remember, the better. I don’t think that you should be filling in any calendars or anything.”

[Redacted] When he said a

Ms. Cheney. Go ahead.

[Redacted] So everyone’s on the same page about this, did he explain who he was referring to when he said “everyone”?

Ms. Hutchinson. He didn’t at that moment. Then there are times throughout my working relationship with Stefan where he said similar things that I asked.

Later that day, sort of put together that the “they” he was referring to then were Justin Clark, Alex Cannon, Eric Herschmann. I think that’s — yeah, think that’s all of them.

Ms. Cheney. And how did you put that together?

Ms. Hutchinson.  Because he — he had said that — Justin — yeah, Justin Clark. Stefan had told me that — towards the end of the day that because he was involved with Elections, LLC, and tangentially, I guess Trump’s PACs, he had law partners. And unless I was extremely unwilling for him to share, he said it would be natural for him to have to share that information with the people that he works with that are his partners that are involved in Trump world.

Then, after her third interview — the one in which Hutchinson remembered a lot of details about the response to the attack that Herschmann had already testified to not remembering — Passantino responded by confirming to Maggie Haberman that Meadows’ former aide had testified, and telling Meadows’ lawyers, his partners, and Herschmann about her testimony, all in defiance of Hutchinson’s wishes, according to her testimony.

Ms. Cheney. Did he also – so you said that he talked to Terwilliger, to his law partners. Did he also talk to Herschmann?

Ms. Hutchinson. He did. I’m sorry. I neglected to mention that. He –as we were leaving that evening, I got an Uber, and he walked me to my Uber, and he reiterated that he was going to have a conversation with his law partners. He was going back to Michael Best, and he said that he was going to have a conversation with his law partners that night.

And he asked — he asked — I forget how he said it. He said something to the effect of, “I think its best if we tell Eric about this, too. He’s not technically my law partner, but I think Eric deserves to know some of this, too.”

And I said, “Look, at this point, one, I kind of know you’re going to do what you’re going to do.” And I said, “Whatever you think is best”

That’s what led to the 30-minute call from Herschmann, the one where he expressed surprise that she remembered so much.

The discrepancy looks somewhat different give Hutchinson’s claim that Passantino told her, from the start, “they” were trying to protect Herschmann.

Particularly given that the transcripts reveal just how amorphous Herschmann’s job was. He has often been referred to as part of the White House Counsel’s office. I’ve done it. General Keith Kellogg did it in his interview with the Committee, which is why, Kellogg explained, he was so surprised that Herschmann sat silent in the Oval Office as Trump told Mike Pence he could reject electors from contested states, some details of which were something else Herschmann claimed not to remember.

Herschmann’s job was providing legal advice (he was also involved in Jared Kushner’s portfolio of pardons and Middle East negotiations, though when asked, he was coy about his relationship with the kids: “I had met them beforehand,” he said) And he did report through Pat Cipollone. But he was not part of the White House Counsel’s Office.

It’s almost like he was an in-house minder, paid by taxpayers, installed by the family or Bill Barr for the last five months of the presidency.

While working at the White House, Herschmann teamed up with Passantino and Don Jr’s buddy, Arthur Schwartz, to pitch the first Hunter Biden smears to the WSJ, even before Rudy disseminated the “laptop.”

Yet even in that short time period, Herschmann became a key gatekeeper for the President, ostensibly to prevent him from getting outrageous pitches.

Which makes a key discrepancy between Pat Cipollone and Herschmann’s testimony rather interesting, particularly given Passantino’s concern (at least per Hutchinson’s testimony) with protecting Herschmann.

Herschmann claimed that the reason Cipollone wasn’t in that meeting in the Oval Office on January 6, sometime after he spoke with Rudy out of the blue and at which he didn’t remember the Joint Session of Congress coming up, is because Cipollone hadn’t arrived to work yet. In fact, Herschmann remembered that even after the Oval Office meeting, Cipollone still wasn’t in the office; Herschmann described talking to just Pat Philbin before deciding to go, without prior planning, to the Ellipse.

I don’t remember, I don’t think Cipollone was in the office yet, but Philbin was.

The way Cipollone remembered it is that he came to the Oval Office before the meeting, but Herschmann specifically told him he didn’t need to participate — it was just family.

I remember Eric Herschmann was standing there and came and my recollection is he came to me as I was standing in the door and said, this is — this is family — just kind of –you don’t need to be here. And said, fine. And believe I went back to my office at that point.

And so, as Herschmann described, when he was in the Oval Office not hearing a discussion about the Joint Session of Congress, he was just on a social visit, just saying hello.

Q You were not there for any legal purpose. It was just, you indicated, sort of a social gathering?

A Yeah, when I first came in, it was just saying hello.

I’m sure that relative veracity of these claims are all being weighed by Jack Smith and his prosecution team. Indeed, after these events, DOJ started adding Passantino’s name to subpoenas.

I’m interested in one more detail about it. Immediately after Hutchinson testified about her claims of obstruction to J6C on September 14 and 15 (testimony which should have been secret), Maggie Haberman came out with two stories pitching Herschmann — who worked so closely on Jared’s portfolio at the White House — in positive light. On September 16, Maggie Haberman reported on Herschmann’s demand to get an Executive Privilege invocation in writing just in time to avoid testifying sometime that month. In it, Herschmann got to impugn Boris Epshteyn’s legal ability, just like he was made a star of the J6C hearings by yelling at Eastman and Powell.

The claim that Herschmann was invoking Executive Privilege is particularly interesting given two things he said in his J6C interview. First, he said that “based on his understanding” with the two Pats, he would not invoke privilege, at least with respect to Trump’s call to Mike Pence on January 6.

Q And could you hear the Vice President, or only hear the President’s end?

A Only hear the President’s end.

Q Okay. And what did you hear him say?

A Well, I guess from this, based on my understanding with Pat Philbin and Pat Cipollone — I don’t want to assert privilege on that as much as tell you that, at some point, it started off as a calmer tone and everything, and then became heated.

Given his claimed status as a social visitor and his role as an aide giving legal advice reporting to, but not part of, the White House Counsel’s Office, I’m curious what privilege he would claim.

Almost immediately thereafter, Herschmann asked to review with his own lawyers (former colleagues of his from Marc Kasowitz’ firm who also repped Ivanka, Jared, Ivanka Trump’s Chief of Staff Julie Radford and aide Rachel Craddock, and two of Trump’s Executive Assistants, Molly Michael and Austin Ferrer, as well as Alex Cannon, the latter of whom was represented pro bono), in part, whether “if I don’t recall something” it’s invoking a privilege.

Q  Okay. Others have said that President Trump said, I made the wrong decision four years ago?

Do you recall that.

A Let me — can we take a two-second break, so I get the privilege down in my head? Because if I don’t recall something, I presume it’s not invoking anything, right?

So can we take a five-minute break, so I can get my own ground rules covered.

Herschmann did, as noted, invoke privilege to cover one of two private conversations he had with Trump that day, one after the attack on the Capitol. But that was it. The single solitary thing all day he invoked privilege over. And yet somehow, there would be a lengthy discussion about privilege before he appeared before a grand jury.

The reason I find these discussions of privilege so interesting, though, is because while we know that the two Pats testified before a grand jury after Beryl Howell overruled Trump’s privilege invocation, we’ve never heard whether Herschmann did.

That’s relevant, too, because (like Alex Cannon), Herschmann also reportedly has a role in the stolen documents case. A few days after the story on privilege, on September 19, Haberman reported that Herschmann had warned Trump to return his stolen documents at some otherwise vague meeting in 2021.

As Hutchinson’s testimony and years of past practice make clear, sometimes people share stories with Maggie as a way to telegraph what has gone on in an investigation.

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