Three Things: A Three-Ring Circus

[NB: Check the byline, thanks. /~Rayne]

Under the enormous canvas tent of the United States, come see the mightiest extant amusement organization, superior in character, regal in appointment, magnificent in conception, omnipotent in strength, with hundreds of witnesses, a plethora of attorneys and paralegals, the promise of the wild beast-like Chansley, multiple frustrated judges…

And one orange-tinted slack-bottomed kack-handed clown unseen off the stage entantrumed in the wings.

Ladies, Gentlemen, and those of pronouns without and within, welcome to the American circus.

I can’t even begin to imagine what all of this looks like from abroad.

~ 3 ~

Arguments just wrapped up in the U.S. Court of Appeals for the DC Circuit regarding former president Trump’s claim of executive privilege over testimony and materials subpoenaed by the House January 6 Committee. Twitter threads covering the hearing’s progress:

For BuzzFeed:


For DailyKos:

Stream the audio of the arguments on YouTube at: https://youtu.be/DcMnkpZOpxo

I have to admit this hearing is making me grit my teeth. No one is above the law; the executive’s job is to execute what Congress legislates, and Congress cannot do its job effectively without oversight of the executive’s work when its work product is not related to classified national security issues. There’s zero executive privilege for testimony and materials related to campaigning if performed in and by the White House.

~ 2 ~

Convicted shaman insurrectionist perp Jacob Chansley filed an appeal today.

Good luck with that, buddy. What a waste of a lengthy mea culpa in court.

Chansley wasn’t the only lower level perp on the agenda today — check Scott MacFarlane’s Twitter feed for more including another perp charged and another arraigned today.

~ 1 ~

Washington Post published an article today about Trump’s former chief of staff Mark Meadows, who until now has completely resisted compliance with a House January 6 Committee subpoena. Here’s the timeline of related events:

September 23, 2021 — House January 6 Committee issued a subpoena to Meadows;
October 7, 2021 — Due date for records subpoenaed;
October 15, 2021 — Deposition deadline;
November 11, 2021 — White House Deputy Counsel sent a letter to Meadow’s attorney advising that President Biden would not exert executive privilege over any testimony or records the House January 6 Committee subpoenaed;
November 11, 2021 — U.S. Court of Appeals for the D.C. Circuit blocked handover of National Archives’ presidential records responsive to a January 6 committee’s subpoena;
November 12, 2021 — Meadow’s attorney issued a statement which said Meadows would not cooperate with the committee until after the legality of the subpoenas was settled in court;
November 30, 2021 — See Thing 3 above, Court of Appeals for the DC Circuit hearing today regarding subpoena of testimony and records over which Trump claims executive privilege.

Hed and subhed of WaPo’s article today:

Former White House chief of staff Mark Meadows cooperating with Jan. 6 committee
Meadows has provided records to the committee investigating the attack on the Capitol by a pro-Trump mob and will give a deposition.

“Cooperating” is rather broadly used. Committee chair Bennie Thompson issued a statement today about Meadows:

“Mr. Meadows has been engaging with the Select Committee through his attorney. He has produced records to the committee and will soon appear for an initial deposition. The Select Committee expects all witnesses, including Mr. Meadows, to provide all information requested and that the Select Committee is lawfully entitled to receive. The committee will continue to assess his degree of compliance with our subpoena after the deposition.”

“has been engaging” isn’t the same as cooperating; an “initial” deposition doesn’t mean anything until Meadows has actually answered questions put to him without prevarication.

As Marcy tweeted, “Meadows could invoke a bunch of things and avoid testifying and avoid contempt that way.

Betting this “cooperating” is a stall tactic which won’t end until the Department of Justice indicts Meadows for contempt of Congress as they did Steve Bannon.

But perhaps there will be more than two charges if Meadows “has been engaging” in a little light obstruction.

Sure hope for his own sake Meadows turned information related to his phone records.

~ 0 ~

What other hearing(s) did I miss? Share in comments.

The Publisher of the Steele Dossier, Ben Smith, Reports that the Hunter Biden Laptop Was Just a Political Dirty Trick

The recent Igor Danchenko indictment and overly credulous reporting on it have created a big new push for former BuzzFeed editor Ben Smith to reflect on his role in the dissemination of the Steele dossier.

In a Sunday column on mis- and disinformation, however, he makes no mention of it.

Instead, his column questions the inclusion of the Hunter Biden laptop story in a media executive seminar on, “help[ing] newsroom leaders fight misinformation and media manipulation.” Smith claims that treatment of the laptop story is, in fact, proof that the term “media manipulation” means  “any attempt to shape news coverage by people whose politics you dislike.”

A couple of them, though, told me they were puzzled by the reading package for the first session.

It consisted of a Harvard case study, which a participant shared with me, examining the coverage of Hunter Biden’s lost laptop in the final days of the 2020 campaign. The story had been pushed by aides and allies of then-President Donald J. Trump who tried to persuade journalists that the hard drive’s contents would reveal the corruption of the father.

The news media’s handling of that narrative provides “an instructive case study on the power of social media and news organizations to mitigate media manipulation campaigns,” according to the Shorenstein Center summary.

The Hunter Biden laptop saga sure is instructive about something. As you may recall, panicked Trump allies frantically dumped its contents onto the internet and into reporters’ inboxes, a trove that apparently included embarrassing images and emails purportedly from the candidate’s son showing that he had tried to trade on the family name. The big social media platforms, primed for a repeat of the WikiLeaks 2016 election shenanigans, reacted forcefully: Twitter blocked links to a New York Post story that tied Joe Biden to the emails without strong evidence (though Twitter quickly reversed that decision) and Facebook limited the spread of the Post story under its own “misinformation” policy.

But as it now appears, the story about the laptop was an old-fashioned, politically motivated dirty tricks campaign, and describing it with the word “misinformation” doesn’t add much to our understanding of what happened. While some of the emails purportedly on the laptop have since been called genuine by at least one recipient, the younger Mr. Biden has said he doesn’t know if the laptop in question was his.

And the “media manipulation campaign” was a threadbare, 11th-hour effort to produce a late-campaign scandal, an attempt at an October Surprise that has been part of nearly every presidential campaign I’ve covered.

The Wall Street Journal, as I reported at the time, looked hard at the story. Unable to prove that Joe Biden had tried, as vice president, to change U.S. policy to enrich a family member, The Journal refused to tell it the way the Trump aides wanted, leaving that spin to the right-wing tabloids. What remained was a murky situation that is hard to call “misinformation,” even if some journalists and academics like the clarity of that label. The Journal’s role was, in fact, a pretty standard journalistic exercise, a blend of fact-finding and the sort of news judgment that has fallen a bit out of favor as journalists have found themselves chasing social media.

While some academics use the term carefully, “misinformation” in the case of the lost laptop was more or less synonymous with “material passed along by Trump aides.” And in that context, the phrase “media manipulation” refers to any attempt to shape news coverage by people whose politics you dislike.

Unless Smith considers the two details he cites — some researchers have confirmed that some of the emails are authentic, yet Hunter Biden doesn’t claim to know whether the laptop in question was his — to be proof one way or another that this was a “politically motivated dirty tricks campaign,” he cites no evidence for his conclusion.

Smith doesn’t mention any of the reasons why there was and remains good reason to suspect the laptop — the provenance of which even Glenn Greenwald once proclaimed to be “bizarre at best” — was more than that. From the time President Trump first started extorting an investigation into the Bidens from Ukraine through at least January 2020, Russia’s military intelligence agency, GRU was found hacking Burisma, the company with which Hunter had a sketchy consulting relationship that was the initial hook for the laptop stories. Rudy Giuliani not only played a central role in the brokering of the laptop story, but reportedly had been sitting on a copy of the files for some time. Rudy, of course, had played a key role in Trump’s attempt to extort news of a Biden investigation and even during the impeachment inquiry, in spite of warnings from the intelligence community, traveled to Ukraine to meet with Andrii Derkach, who was subsequently sanctioned as a Russian agent. According to Ben Smith’s employer, Derkach’s efforts to deal “misleading information” to Rudy as part of a 2020 election operation are under investigation by EDNY; a parallel investigation into Rudy for serving as an unregistered agent of Ukrainian interests in events that were part of the impeachment inquiry remains ongoing at SDNY. An intelligence report related to the second story hung on the laptop, regarding Hunter’s ties to China, was disclosed to have been attributed to an intelligence analyst whose identity was entirely fabricated, down to his artificially generated face. And the IC’s report on efforts to interfere in the 2020 election includes one conclusion that sounds suspiciously similar to the efforts that led to the laptop story.

A key element of Moscow’s strategy this election cycle was its use of people linked to Russian intelligence to launder influence narratives–including misleading or unsubstantiated allegations against President Biden–through US media organizations, US officials, and prominent US individuals, some of whom were close to former President Trump and his administration.

If the Hunter Biden laptop story was just a political dirty trick, then it was one that exactly paralleled well-substantiated efforts involving Russian intelligence agents.

We now know, thanks to the investigation into Project Veritas, that the “sister” media package right wing propaganda outlets were pitching, the dissemination of a diary from Hunter’s half-sister in the very same weeks leading up to the election, similarly features a sketchy origin story that — SDNY has shown probable cause to believe — actually serves to hide the theft of the underlying diary. While SDNY has not yet charged anyone much less proven the case, it claims that the story about how reporters came to obtain such a juicy campaign prop was, itself, misinformation hiding theft. That’s another detail that Smith doesn’t mention in his piece.

Even if the similarities between Smith’s “old-fashioned, politically motivated dirty tricks campaign” and the acknowledged interference attempt by Russian agents are mere coinkydink, it nevertheless is the case that the Hunter Biden laptop package was an attempt at media manipulation, part of the reason it was presented to the seminar.

That’s because — again, as even Glenn Greenwald acknowledged — the presumptively authentic emails offered as the dangle in the laptop package provided, “no proof that Biden followed through on any of Hunter’s promises to Burisma.” By offering “authentic” emails and derogatory pictures just before the election, right wing operatives attempted to make a story that had long been reported (and key parts of it debunked by experts testifying under oath as part of the first impeachment) go viral just before the election not by offering any proof of the key allegations, but by waving something “authentic” around that could substitute for real proof.

It briefly worked, too, as high profile journalists disseminated the most inflammatory details in the story — effectively delivering the announcement of a criminal investigation pertaining to Ukraine that Trump demanded from Volodymyr Zelenskyy — and only after that started identifying really problematic parts of the story.

This entire episode was an effort to disseminate something “authentic” that nevertheless lacked proof of the underlying allegations as a way to lead people to believe those allegations. Classic media manipulation, and it nearly succeeded.

And Ben Smith, the man who published a dossier full of unproven allegations that — Republicans in Congress now believe — injected Russian disinformation into what otherwise might have been just an “old-fashioned, politically motivated dirty tricks campaign,” a dossier that (like Hunter Biden’s laptop) long stood as the proxy understanding for a criminal investigation into dramatically different facts, dismisses the possibility that it was disinformation blithely, presenting no real evidence for or against.

It is undoubtedly the case that there remain real questions about the Hunter Biden laptop package, questions that may get renewed attention given the new focus on the Ashley Biden diary package. Maybe one day, Ben Smith will be able to state, as fact, that it was just an, “old-fashioned, politically motivated dirty tricks campaign;” or maybe EDNY will uncover the real provenance of those “authentic” files all packaged up and handed to a guy who made no secret of his willingness to accept and disseminate Russian disinformation.

But at a time when he is actively refusing to reflect on his own actions in disseminating an “old-fashioned, politically motivated dirty tricks campaign” that seems to have been exploited as an easy vehicle for hostile disinformation, Ben Smith might want to be a little more cautious about assuming those lines are so easy to distinguish.

Where to Look (or Not) for Signs of Life in Rule of Law

According to the court schedule for this week, January 6 defendants Stacie and John Getsinger will plead guilty on Thursday, no doubt to misdemeanor trespassing. On the surface, their guilty plea will likely resemble those of the dozens of other January 6 misdemeanor pleas that have gone before them, and that may be all it is.

But, along with a handful of others (Adam Johnson and Justin McAuliffe, who both pled guilty last week, are two other examples), these pleas may hint at what kind of larger underlying case DOJ is building. That’s because the Getsingers are witnesses to an important detail about the way January 6 worked: that Alex Jones, whom Trump had put in charge of leading mobs to the Capitol, likewise induced them to go to the top of the East steps of the Capitol with a lie, the false claim that Trump would be speaking there. That’s what led a couple like the Getsingers, who otherwise would never have entered the Capitol, to do so.

This comes even as InfoWars personality Owen Shroyer’s attempts to dodge his own legal accountability have brought more focus on Jones’ actions, described as Person One in DOJ’s opposition to Shroyer’s attempt to dismiss his indictment.

When the body-camera individual asked if he could get Person One there, the officer stated, “Through the hole that you guys breached right there” (emphasis added). When the body-camera individual responded that he didn’t breach anything, the officer retorted, “Well, the whole group that was with you guys.” The officer then pointed again away from the Capitol Building toward the northeast, telling them to leave through the same hole he had just said other rioters had breached. An officer surrounded by people illegally on the Capitol Grounds dismissively waving them away from the Capitol Building and toward another area hundreds of others had already illegally breached does not amount to “telling [the defendant] that … police officers could use his help.”

[snip]

[T]he defendant forced his way to the top of Capitol Building’s east steps with Person One and others and led hundreds of other rioters in multiple “USA!” and “1776!” chants with his megaphone. Harkening to the last time Americans overthrew their government in a revolution while standing on the Capitol steps where elected representatives are certifying a Presidential Election you disagree with does not qualify as deescalation.

[snip]

The video shows the defendant on an elevated platform leading chants with his megaphone on the Capitol Grounds before his first interaction with law enforcement officers; it shows the body-camera individual repeatedly (and unsuccessfully) try to get Person One on the Capitol steps; it shows evidence that the defendant reasonably should have known he was somewhere he was not supposed to be, including by stepping near moved barriers and downed signs; and it shows officers repeatedly refer to the defendant’s group as part of the problem and the “breaches” of various police lines. In fact, at the end of the video, the body-camera individual took matters into his own hands after facing multiple rejections for permission. He turned to the group and asked, “Just get him up there? … But we know we might catch a bang or two.” That is not evidence that the defendant received explicit or implicit permission to go onto the Capitol steps. That is evidence that the defendant is guilty of the crimes he is charged with.

Every single time that Merrick Garland has been asked about the scope of the January 6 investigation, he has said his DOJ will follow the evidence where it leads. These details are tidbits of the evidence in question, visible tidbits that would be largely meaningless unless you understood how the Oath Keepers, Joe Biggs, and his former employer all converged on those East doors just before they were opened from inside.

None of these details — and others like them, such as Johnson’s description of the crowd’s response to Rudy Giuliani and Mo Brooks’ calls for violence — guarantee that Rudy and Brooks will be held responsible.

At the rally, JOHNSON listened to several speeches, including by former President Trump, Rudy Giuliani, and an unknown older member of Congress–the latter of whom JOHNSON heard stating that it was time for action and violence. In response to these comments, JOHNSON saw members of the crowd nodding their heads in agreement.

But if you don’t know these details, you don’t know even what is publicly available about the investigation.

I respect David Rothkopf. I share his concerns about the threat Trump poses to US democracy and the limited time before Republicans likely take control of the House and shut down efforts to guard democracy in the US.

But unlike him I know that the place to learn about DOJ’s January 6 investigation is not by asking Harry Litman or Barb McQuade or AG Gill or Lawrence Tribe or even Dahlia Lithwick — all of whom I respect greatly — how they feel about the general direction of the investigation, but instead to look at the actual records or reading the reports of people actually covering hearings, such as this crucial Josh Gerstein story about how prosecutors responded when Judge Carl Nichols (the former Clarence Thomas clerk who happens to be presiding over Steve Bannon’s case) asked if someone who did what Trump did could be charged with the same obstruction charge DOJ is using with the more serious defendants.

At a hearing on Monday for defendant Garret Miller of Richardson, Texas, Nichols made the first move toward a Trump analogy by asking a prosecutor whether the obstruction statute could have been violated by someone who simply “called Vice President Pence to seek to have him adjudge the certification in a particular way.” The judge also asked the prosecutor to assume the person trying to persuade Pence had the “appropriate mens rea,” or guilty mind, to be responsible for a crime.

Nichols made no specific mention of Trump, who appointed him to the bench, but the then-president was publicly and privately pressuring Pence in the days before the fateful Jan. 6 tally to decline to certify Joe Biden’s victory. Trump also enlisted other allies, including attorney John Eastman, to lean on Pence.

An attorney with the Justice Department Criminal Division, James Pearce, initially seemed to dismiss the idea that merely lobbying Pence to refuse to recognize the electoral result would amount to the crime of obstructing or attempting to obstruct an official proceeding.

“I don’t see how that gets you that,” Pearce told the judge.

However, Pearce quickly added that it might well be a crime if the person reaching out to Pence knew the vice president had an obligation under the Constitution to recognize the result.

“If that person does that knowing it is not an available argument [and is] asking the vice president to do something the individual knows is wrongful … one of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty,” Pearce said.

I can’t tell you whether DOJ will get much further up the chain of responsibility for January 6; part of that necessarily depends on DOJ’s success at obtaining cooperation, of which only that of Oath Keepers has DOJ thus far disclosed. I can’t tell you what DOJ is doing behind the scenes in what Garland describes as “following the money.”

But I can tell you that columns like Rothkopf’s, which complain that Garland’s DOJ is not doing enough to hold Trump accountable while ignoring cases like the Tom Barrack prosecution and the Rudy Giuliani investigation that provide concrete evidence about the kinds of investigative steps Garland’s DOJ has been willing to pursue (the Rudy raid was likely among Lisa Monaco’s first major decisions), likely don’t make it any more likely that Garland will be able to act against the masterminds of January 6 any sooner.

A far better use of Rothkopf’s time and space than bitching that Garland has authorized John Durham’s funding request, for example …

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

… Would be to ask Harry Litman and Barb McQuade and AG Gill and Lawrence Tribe and Dahlia Lithwick about the specific things that Durham has done — like failing to cut-and-paste with fidelity, relying on a Twitter feed for a key factual assertion, and using materiality arguments to skirt DOJ’s prohibition on publicly commenting on uncharged conduct — that put his prosecutions in violation of DOJ guidelines. Such questions would be readily accessible to all by reading just two indictments (as compared to the full dockets of 675 charged January 6 defendants), it would draw on the considerable expertise of the prosecutors he cited, and it might do something concrete to give Garland the political support he would need to force Durham to hew to DOJ guidelines.

Importantly, it may not be possible for DOJ to move quickly enough against Trump without violating due process (just as one example, the Project Veritas investigation could lead to incredibly damaging revelations about political spying targeting the Biden family, but it’s not entirely clear DOJ respected First Amendment protections).

Which means those with a platform would be better off defending the rule of law — selling independents and moderate Republicans on the import of the January 6 investigation — than whining that it is not working quickly enough.

Update: In his piece, Rothkopf complains, as well, that the only visible investigation into the people around Trump is coming from the January 6 Commission, not DOJ.

More troubling to me though is that the only reason we are hearing of any case being brought against Bannon as a senior coup plotter (or upper middle management in any case) is because Congress is investigating the events of Jan. 6. We have not heard a peep out of the Department of Justice about prosecuting those responsible for inciting, planning or funding the effort to undo the lawful transfer of presidential power to the man the American people elected, Joe Biden.

This morning, Adam Schiff went on CNN. Dana Bash asked him about Judge Amit Mehta’s focus on Donald Trump’s role in the insurrection in a sentencing last week. In response, Schiff described that, “I am concerned that there does not appear to be an investigation, unless it’s being done very quietly” into Trump’s call to Brad Raffensperger to demand he come up with just enough votes for Trump to win the state. But Schiff noted that, “this is not January 6 related — specifically, at least, to the violence of that day.”

Then Bash asked whether Schiff was saying he wanted Biden’s DOJ to be more aggressive. Schiff did not answer “yes.” Instead, he responded to a question about DOJ by talking about the January 6 Commission’s role in holding people accountable.

We are now trying to expose the full facts of the former President’s misconduct, as well as those around him. It is certainly possible that what we reveal in our investigation will inform the Justice Department of other facts that they may not yet be aware of yet. And so we will pursue our role in this, which is to expose the malefactors, to bring about legislation as a result of our investigation, to protect the country. But we will count on the Justice Department to play its role.

That is, when Bash asked specifically if DOJ was being aggressive enough on January 6, Schiff implied that the January 6 Commission played a key role in their efforts.

This is something that has not gotten enough attention: Even if DOJ didn’t ask, the Jan 6 Commission would refer people for any crimes they discovered, as SSCI and HPSCI both referred people to Mueller for lying, lies that led to the prosecution and cooperation of (at least) Michael Cohen and Sam Patten. Schiff knows better than anyone that HPSCI’s investigation was critical to the prosecution of Roger Stone. I also suspect that Steve Bannon’s transcripts were important preparation for Bannon’s grand jury appearance in January 2019, because they laid out the script that the White House had given to him for his testimony. I further suspect that SSCI obtained — and then shared — testimony from certain witnesses that Mueller could not otherwise get.

Trump’s pseudo-cooperation with the Mueller investigation, waiving privilege for the investigation but not any prosecution, likely was one hinderance to holding him accountable. And on this investigation, DOJ would be even more constrained, because it could face Executive Privilege claims and definitely would face Speech and Debate protections.

There has been almost no discussion of how closely Bennie Thompson and Liz Cheney are working with DOJ to ensure that the Jan 6 Commission doesn’t impede DOJ’s Jan 6 investigation, but it must be happening.

Similarly, there has been no discussion of obvious witnesses that the Jan 6 Commission has not (yet) subpoenaed, such as Lin Wood or Rudy Giuliani, the latter of whom DOJ seized phones from in another investigation in April.

Finally, there has been little discussion of how DOJ moved to have Executive Privilege waived for Congress just as the Jan 6 Commission got up and running.

DOJ only released its new contact policy — under which the request for a privilege determination may have been passed — on July 21. I’m curious whether the request for a  waiver of executive privilege waiver came after that. Executive privilege considerations were a key limitation on the Mueller investigation overseen in its final days partly by Rosen himself.

At least as interesting, however, is that DOJ sent the letter just one day before DOJ submitted a court filing in the Eric Swalwell lawsuit — speaking of members of Congress but using more generalized language — arguing that no federal officials can campaign in their official capacity and further noting that attacking one’s employer is not within the scope of someone’s job description.

DOJ is using that same waived privilege for the documents responsive to the Jan 6 Commission requests at the National Archive.

That is, DOJ is supporting the efforts of a co-equal branch of government to obtain testimony and records that that co-equal branch of government has a broader claim to than DOJ itself.

And Schiff, who understands better than anyone how HPSCI and DOJ worked together on the Stone prosecution, described, after first answering a question that he distinguished from January 6, then addressing January 6 directly by saying that “our role in this[] is to expose the malefactors,” and “we will count on the Justice Department to play its role” if and when the Commission “inform[s] the Justice Department of other facts that they may not yet be aware of yet.”

Yes, the January 6 Commission has a very short window in which to work. Yes, Congress is taking steps that DOJ does not appear to be taking. But that doesn’t mean that DOJ is not obtaining that evidence.

Sting Ray: Project Veritas’ Schrodinger’s Proxy

According to a court filing submitted on behalf of Spencer Meads, one of the former Project Veritas staffers whose phones were seized by the FBI on November 4, the circumstances that led to PV obtaining Ashley Biden’s diary started no earlier than August 2020.

Under any stretch of the imagination, the period relevant to the diary investigation does not pre-date August 2020.

[snip]

[A]ll events relating to the Government’s diary investigation began no earlier than August 2020. Accordingly, none of the work that Mr. Meads performed on behalf of Project Veritas before August 2020 – including newsgathering information and other information stored on his electronic devices before August 2020 – could have any possible relevance to or bearing whatsoever on the Government’s diary investigation.

The government appears to agree. The timeline for the warrant served on Meads (and Eric Cochran, the other former PV staffer searched that same day) starts on August 1, 2020.

August 2020 is when, according to the filing from Meads, PV first learned of the diary.

Project Veritas first became aware of the diary’s existence in August 2020 when Source 1 and Source 2 contacted Project Veritas through a proxy. PV Motion at p. 3. Just as Project Veritas and Mr. O’Keefe had never heard of Source 1 or Source 2 before this communication, Mr. Meads also had never heard of them. Nevertheless, Source 1 and Source 2 represented to Project Veritas that they were in possession of Ms. Biden’s diary, which they claimed Ms. Biden had left abandoned at a house located in Delray Beach, Florida. Id. Mr. Meads and Project Veritas had absolutely no involvement with how Source 1 and Source 2 acquired possession of the diary. [my emphasis]

The filing Meads cites to in that passage — PV’s original request for a Special Master — actually doesn’t provide that date. On the contrary, PV’s original filing is squishy about the date.

Earlier in 2020, two individuals – R.K. and A.H. – contacted Project Veritas through a proxy. Prior to this contact, neither James O’Keefe nor anyone at Project Veritas knew or had even heard of R.K. and A.H. [my emphasis]

That’s interesting, because a later PV filing insinuates that they first learned of the diary when a “tipster” called and left them a voicemail (a voicemail which would be responsive to the subpoena DOJ already served on PV) to let them know about it on September 3.

On or about September 3, 2020, a tipster called news outlet Project Veritas and left a voice mail. In the voice mail, the tipster indicated that a new occupant moved into a place where Ashley Biden had previously been staying and found Ms. Biden’s diary and other personal items: “[T]he diary is pretty crazy. I think it’s worth taking a look at.” Communications with the source (the new occupant) who found Ashley Biden’s abandoned diary and other abandoned items ensued. Project Veritas learned that Ashley Biden’s other abandoned personal effects in the sources’ possession included an overnight bag with the “B. Biden Foundation” logo and miscellaneous personal items. The source who found Ms. Biden’s abandoned diary and another source brought the diary to Project Veritas in New York. The sources arranged to meet the Project Veritas journalist in Florida soon thereafter to give the journalist additional abandoned items.

PV seems to be erasing up to a month of events that Meads seems to know about, including how PV first learned of the diary. It is also obfuscating the different roles here — “the tipster,” “the source,” “another source,” and “the Project Veritas journalist.”

The temporal discrepancy may have to do with that proxy referenced by Meads. Meads says the first PV learned about it was via a proxy. PV implies, in that recent filing, that they didn’t learn about the diary until receiving a voicemail in September. But as noted, the first PV filing also acknowledged the role of the proxy, even though it focused all its attention on the purported sources, R.K. and A.H., with no discussion of when or how the proxy got involved, or who that proxy was. Here’s a longer version of that passage:

When National File published the diary, it claimed to have received the diary from a “whistleblower” at another news organization that had chosen not to report on the diary. Id. No Project Veritas employee had authority to, or was directed to, provide the diary to National File. Nor to provide it to anyone else. Project Veritas had no involvement in National File’s publication of the diary and had no advance knowledge that National File intended to publish it.

Earlier in 2020, two individuals – R.K. and A.H. – contacted Project Veritas through a proxy. Prior to this contact, neither James O’Keefe nor anyone at Project Veritas knew or had even heard of R.K. and A.H. Those two individuals represented that they had material (including a diary) that Ashley Biden had abandoned at a house where she had been staying in Delray Beach, Florida. Project Veritas had no involvement with how those two individuals acquired the diary. All of Project Veritas’s knowledge about how R.K. and A.H. came to possess the diary came from R.K. and A.H. themselves.

R.K. and A.H. through their lawyers requested payment from Project Veritas for contributing the diary for potential publication. As described by these individuals, the diary appeared to be newsworthy. R.K. and A.H.’s lawyers negotiated an arm’s length agreement with two of Project Veritas’s in-house lawyers, wherein R.K. and A.H. reaffirmed that they had come to possess the diary lawfully. Pursuant to that agreement, R.K. and A.H delivered the diary and other materials reportedly abandoned by Ms. Biden to Project Veritas.

In the more recent filing, PV seems to address the role of the proxy almost 4,000 words after it suggests that the first it learned of the diary was that voice mail. Nine pages into the reply, PV’s lawyers reveal they have “interviewed” the “the individuals [plural] who steered the sources who found the abandoned diary” and complain that the government has not yet done so.

As our own investigation continues, we have learned that the government has deliberately avoided learning information that disproves its false theory that Project Veritas was somehow involved in a “theft.” The undersigned have interviewed the individuals who steered the sources who found the abandoned diary and other abandoned personal items, to Project Veritas (including the tipster who left the voice mail for Project Veritas on or about September 3, 2020). Astonishingly, the government has not interviewed these individuals, despite knowing their identities and listing them by name in the documents. From an investigative standpoint, the government’s choice not to interview them is inexplicable. The only possible explanation is that the government wishes to remain willfully blind or deliberately ignorant and avoid obtaining evidence inconsistent with its false theory that Project Veritas was involved in the theft of the diary and other materials. The sources told those individuals, just as they told Project Veritas, that the diary and other items were abandoned by Ashley Biden in a place where she had been staying while undergoing rehabilitation treatment.

The description that the documents “list [these people] by name” suggests they are the suspected co-conspirators whose names appear (but are redacted in publicly released versions of) the warrants.

Of course, a far more obvious explanation why the government hasn’t interviewed these people is that they’re suspects in a criminal investigation.

In any case, after having spoken with “the individuals who steered the sources who found the abandoned diary” and confirmed those people were still going to claim the diary was found, not stolen, PV obscured the role of the proxy.

There’s at least one more way that PV’s story is inconsistent. The original PV filing explains that it did not publish the diary because it could not sufficiently authenticate it. And only after making that decision, PV claims, did it first try to return the diary to Ashley Biden’s lawyer, and then transfer the diary back across state lines to give it to local law enforcement in FL.

Project Veritas conducted due diligence to determine if the diary was authentic and investigated the potential news story. After significant deliberation, Project Veritas decided not to publish the diary and not to run any news story about it. Despite an internal belief that the diary was genuine, Mr. O’Keefe and Project Veritas could not sufficiently satisfy themselves with the diary’s authenticity such that publishing a news story about it would meet ethical standards of journalism.

The later PV filing describes the question of authenticity as one limited to whether Ms. Biden’s attorney confirmed it was hers.

When Ashley Biden’s lawyer would not confirm her client’s ownership of the found items provided to Project Veritas, the news outlet arranged, on or about November 3, 2020, for the items to be delivered to state law enforcement in Florida, in the jurisdiction in which the source informed Project Veritas it originally found the abandoned items.

PV notes that it turned over the diary to Florida law enforcement on November 3, without noting that that was Election Day, after which point the diary would be of no further use in swaying the election.

Much later in the filing, PV references an email that James O’Keefe sent on October 12, 2020, explaining why he wasn’t going to publish it (which, given the timing, may have led “a whistleblower” to share it with National File). PV claims that it did so because the “sordid nature of the diary’s contents” required a higher threshold for authentication, and presents this decision as proof that PV is not a political spy firm (which, particularly given the headfake PV did on complying with a subpoena, is irrelevant to some of the First Amendment issues).

Although there was compelling evidence of the diary’s authenticity, James O’Keefe and Project Veritas’s newsroom staff ultimately found that the evidence of authenticity did not rise to a level sufficient to satisfy their journalistic ethical standards for news publishing. This remains fully consistent with their internal belief that the diary was genuine – the sordid nature of the diary’s contents required that a high threshold be satisfied prior to running a story on it. As James O’Keefe summarized the editorial concerns in an October 12, 2020, email:

[snip]

If James O’Keefe is a “political spy,” as his politically motivated detractors (such as those in corporate competitors like the New York Times) falsely allege, he could have simply published a salacious news story regarding Ashley Biden’s diary. But he did not. James O’Keefe’s and Project Veritas’s fidelity to their journalistic ethics include high editorial standards. To the extent they harbored any doubt that the diary was authored by Ashley Biden, the United States Attorney’s Office for the Southern District of New York and the FBI have removed all doubt. Nothing could be better confirmation of the diary’s authenticity and the claims therein than the government’s use of federal law enforcement to invade the homes of journalists who did not even run a story on the diary, but only considered doing so, and then turned all material provided to it by sources over to law enforcement.

That’s not what the email said. It said that PV was utterly convinced the diary was genuine, but not the allegations in it (a heavily-edited video of a sweaty O’Keefe released this November 5, after the first searches, also said they couldn’t confirm whether the “contents” of the diary “occurred”).

To release means the action is less wrong than the necessary wrongs that would follow if the information were not utilized and published. But in this case even more harm would be done to the person in question and Project Veritas if we were to release this piece. We have no doubt the document is real, but [i]t is impossible to corroborate the allegation further. The subsequent reactions would be characterized as a cheap shot. [italics original, bold mine]

More importantly, O’Keefe warned of harm to PV if they were to publish. PV doesn’t back off publication because of controversy, that’s what it sells. Which raises questions about what harm to PV that O’Keefe knew others would understand, without further explanation.

Before I get into that, few points about this email. First, note the way that O’Keefe doesn’t mention Ms. Biden by name (though makes it clear that’s what the reference was to). One possible explanation for that is that lawyers coached him to avoid using it. But by publishing the email, PV gave prosecutors reason to insist that mere keyword searches will not be an adequate way to respond to the subpoena, as a search on “Ashley Biden” would not return this email. Also note the typeface irregularities, which is possibly nothing more than bolding of the substantive part of it. That will lead prosecutors to want an electronic copy of this, to understand whether the alternate typeface was cut-and-pasted from somewhere. There are also pngs attached (which may just be the footers), which will be another thing prosecutors will rightly want to see an electronic copy of. O’Keefe has claimed to have privileged relationships with 45 lawyers, yet that mob has already twice succeeded in giving the government justification to ask for more expansive searches.

Other details about the diary may explain why O’Keefe was worried about harm to PV. PV never acknowledges that it turned the diary over to law enforcement only after National File claimed to know the precise location of the diary and know of an audio recording of Ashley Biden admitting the diary was hers.

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

[snip]

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

PV wouldn’t need confirmation from Ms. Biden’s attorney if they had a recording, via whatever means, of her admitting that it was hers. Unless that recording was itself criminal or for some other reason impossible to acknowledge. Then they would need something more. They tried to get something more — confirmation from Ms. Biden’s attorney — and after the attorney refused, they turned the diary over to law enforcement.

And that’s interesting because the substance of communications with Ms. Biden, her attorney, and her father are among the things, the warrants describe, that SDNY is seeking. Among other things (including the communications with suspected co-conspirators like the proxy), they’re looking for:

  • Evidence of communications regarding or in furtherance of the Subject Offenses, such as communications with or relating to Ashley Biden (and representatives thereof) and/or Ashley Biden’s family, friends, or associates with respect to her stolen property.
  • Evidence regarding the value of Ashley Biden’s stolen property, such as communications about the resale or market value of any of the items stolen from her, or any plans ot sell or market the same.
  • Evidence of steps taken in preparation for or in furtherance of the Subject Offenses, such as surveillance of Ashley Biden or property associated with her, and drafts of communications to Ashley Biden, President Biden, and Ashley Biden’s associates regarding her stolen property and communications among co-conspirators discussing what to do with her property.

In his heavily-edited flopsweat video, O’Keefe states PV “never threatened or engaged in any illegal conduct.” It would be unusual for PV not to try to confront anyone with a valuable document; their schtick is misrepresenting the response of their targets. And in all of PV’s communications, they emphasize efforts to validate the diary, which might be a way to spin other kinds of communications.

It could still be the case that SDNY’s investigative steps are inappropriate, even if they have PV dead to rights participating in the theft of the diary.

But all these discrepancies sure make PV’s claims to be uninvolved less convincing.

Especially given the way lawyers for Meads — the former PV staffer who seems to know that that September 3, 2020 call is not the first that PV heard of the diary — torque a precedent from a different circuit pertaining to someone who didn’t learn about a source until after an illegal recording, to claim that even a journalist actively involved in a crime to obtain documents cannot be prosecuted.

While the Government attempts to draw a distinction between passive and active involvement in allegedly unlawful activities relating to obtaining Ms. Biden’s diary (see Opposition at pp. 3-4), this distinction makes no difference from a legal standpoint. Simply put, it makes no difference whatsoever whether the nature of Meads’ involvement was passive or active. In Jean v. Massachusetts State Police, 492 F. 3d 24 (1st Cir. 2007), the plaintiff was a political activist who obtained and posted on her website a copy of a video recording that was made in violation of the Massachusetts electronic interception statute. Id. at 25-26. When the police threatened to charge the plaintiff with a felony unless she abided by its cease and desist demand, the plaintiff obtained injunctive relief in federal district court. Id. at 26. The Government argued that the plaintiff “assisted, conspired, or served as an accessory to [the recorder’s] violation . . .” and, further, that the plaintiff’s “active collaboration with [the recorder] . . . made his unlawful dissemination possible in the first instance.”

[snip]

Additionally, the Government’s incorrect argument that “active involvement” by a journalist somehow eviscerates First Amendment protections for legitimate newsgathering materials does not held that the First Amendment protects news organizations from punishment where they publish information obtained lawfully from a third party. Bartnicki, 532 U.S. at 535. This holding does not support the Government’s position that First Amendment protection is unavailable to journalists who have involvement in unlawful conduct that is the subject of a Government investigation.

The facts of Jean v. MA may match the story that Meads and PV are telling about the diary, but they don’t match what the government clearly alleges behind some redactions: that PV had a role in the actual theft. And Meads seems to overstate the involvement of Jean in the illegal recording so as to make a claim that journalists cannot be investigated for a crime committed while reporting. It’s an interesting legal argument to feel you need to make, especially if you know what led up to a seemingly exculpatory voicemail that PV now purports to be the start of this story.

Update: One detail that should get more attention is that the diary in question dates to 2019 and ends with a period when Ms. Biden was in rehab or something. Its earliest entry is dated January 25, 2019 and the final entry was dated September 18, 2019. To suggest, as PV and others have, that it was found at the rehab facility is to claim that the diary went unnoticed for 11 months.

These events are covered by three SDNY dockets: 21-mc-813 for James O’Keefe21-mc-819 for Eric Cochran, and 21-mc-825 for Spencer Meads.

Parallel Tracks: Project Veritas Served on Their Subpoena Stance

There’s a temporal problem in Project Veritas’ initial motion to appoint a Special Master to sort through materials seized from James O’Keefe in a search on November 6.

In one place, it described that, “At 6:00 AM on Saturday, November 6, 2021, the Federal Bureau of Investigation (“FBI”) executed a search warrant at Mr. O’Keefe’s home.” In another, it described that, “On November 5, 2021, at approximately 6:00 AM, the FBI executed search warrants at the homes of two former Project Veritas journalists, seizing their cell phones and other electronic devices.” But the very next paragraph describes that the O’Keefe search happened two days after the initial search: “Approximately two days later, the FBI executed a search warrant at the home of James O’Keefe.” Then, the letter describes that, “on November 4, 2021 – two days before its search of Mr. O’Keefe’s home — the undersigned had accepted service of a grand jury subpoena directed to Project Veritas.” Shortly thereafter, the letter says the earlier search happened on November 4, not November 5. “On November 4, 2021, at about the same time that FBI agents finished searching the home of a former Project Veritas journalist.”

Even while incorrectly stating that the initial search happened on November 5, the filing (and a subsequent one) don’t describe precisely when NYT’s Mike Schmidt twice reached out for comment about the searches, a key part of their obviously false narrative that Schmidt had to have gotten tipped off by the FBI.

The searches happened on November 4 and 6, at 6AM. I asked Mike Schmidt when he reached out but he didn’t respond, though Eric Cochran’s motion to appoint a Special Master says Schmidt reached out approximately an hour after the 3-hour search happened, so around 10AM.

The incorrect claim in that initial filing that the first searches occurred on November 5 may be nothing more than a typo, but sorting through the timeline alerted me to a chronological detail of some import that PV may want to obscure. PV got word themselves of the investigation, and reached out to one of the prosecutors involved, Mitzi Steiner, to find out more about the investigation on October 26. After Steiner refused to reveal anything about the investigation, lawyers for PV offered to accept a subpoena the next day, promising they had “material and helpful information” to the investigation. But after DOJ sent a subpoena on November 4 — almost certainly after the first searches, which targeted former PV staffers — PV persistently refused to say whether it would comply with the subpoena.

[T]he Government has repeatedly offered to be flexible about the Subpoena’s return date if Project Veritas confirms that it will comply with the requests therein. Project Veritas has repeatedly declined to do so, and similarly declines in its motion here to represent that it will comply.

And after PV repeatedly declined to ask for an extension in response to reassurances they would comply with the subpoena, they used the search on O’Keefe as an excuse to try to get such an extension.

Judge Analisa Torres denied PV’s request for an extension, which could have significant repercussions going forward.

There are several implications of this timeline. First, DOJ may believe, with some justification, that by first serving a subpoena on PV in response to their invitation to do so, only to have them equivocate about whether they would comply, they had fulfilled DOJ’s requirements to seek alternative resolutions, short of a search. That is, PV’s own games may have led to the search on O’Keefe.

The other issue is how this affects PV’s ability to claim expansive privilege protections. When PV alerted DOJ that it not only knew of the investigation, but who was leading it, DOJ likely took measures to identify how they had learned of the investigation. That’s a good way to identify attempts to obstruct an investigation. For example, after it became clear that Roger Stone was tampering in the Mueller investigation in 2018, Mueller obtained a pen register to learn with whom, besides Michael Caputo, Stone was communicating. That appears to be what alerted Mueller to how panicked Stone was by the Andrew Miller interview. That, in turn, is something that may have helped them obtain probable cause on the others. In a directly relevant example, for example, DOJ learned that Lev Parnas had deleted his iCloud account, which seems to be one of the things that helped SDNY obtain warrants for Rudy’s cloud-based accounts in 2019. When co-conspirators attempt to coordinate stories or delete evidence, it makes it a lot easier to obtain warrants.

As a result, there may be information pertaining to PV’s involvement in the alleged theft in three different places. First, I would be shocked if SDNY had not obtained the cloud-based communications of O’Keefe, Eric Cochran, and Spencer Meads. That said, DOJ has already indicated that it knows key communications of interest took place on Telegram, and it’s unclear what access DOJ has to that, independent of the phones Telegram texts were sent on. Then there are the contents of their phones, which may (and uncontroversially could) be subjected a Special Master review. If Torres grants PV’s request for a Special Master, it would give PV an opportunity to at least understand what the full legal exposure is. But then there’s the matter of the subpoena. I would be unsurprised if PV filed a challenge to the subpoena, which might go before Chief Judge Laura Taylor Swain rather than Judge Torres, and might be sealed as a grand jury matter. But this is a subpoena they invited, which will make it a lot harder to claim the subpoena was improper.

With Michael Cohen, the government was able to demonstrate during the Special Master review that some of the materials that Cohen might otherwise have tried to claim were privileged were not, in part because they had already seized his cloud communications (including his Trump Organization emails, which were hosted and turned over by Microsoft). Here, if PV responded to the subpoena at all, the government get a privilege log, laying out why PV thinks conversations O’Keefe had with 45 different lawyers were really privileged, thereby committing PV and O’Keefe to the claims they made in a subpoena response (assuming, of course, they don’t buy time by challenging the subpoena).

Whatever the merit — or abuses — of the focus on PV, PV’s games on the subpoena may have made efforts to protect O’Keefe far more difficult. And their game-playing with the subpoena will make it more difficult for other news outlets in the future to have DOJ treat efforts to accommodate reasonable requests in good faith.

It’s a complex issue and we don’t have enough information to know whether DOJ’s case — that PV was involved in the theft of Ashley Biden’s diary itself, and so not protected under any First Amendment precedent that might otherwise be available to them — is solid or if it instead charges them for involvement after the diary was already stolen, the First Amendment standard under Bartnicki which applies to journalists and non-journalists alike. PV is also trying to shield materials — including donor information and claimed attorney-client privileged materials — along with anything purporting to relate to journalism. The seeming desperation to hide donor information (which normally wouldn’t be involved in the scope of such a request) raises real questions about the sincerity of their journalistic claims, particularly given the recent revelation that PV would let donors dictate the timing of PV’s publications. And as DOJ noted in its response to PV’s motion for a Special Master to review the seized material, PV is not trying to protect the identities of its purported (second-hand) sources for the diary, so some protections that might otherwise apply do not here.

It is troubling that DOJ seized records from O’Keefe citing crimes that suggest liability for a crime after the fact, because if PV genuinely was only involved after the fact, it would pose a dangerous precedent for actual journalists. But the games that PV appears to have played with their subpoena dangle — and some changes they’ve already made to their story — suggest there my be more to the story.

Timeline

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

2020

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

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

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

[snip]

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

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

2021

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

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

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

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

November 4: PV lawyers accept service of subpoena.

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

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

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

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

November 6: Schmidt contacts O’Keefe for comment.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

November 15: Torres sets schedule in Cochran docket.

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

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

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

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

November 17: Torres denies Amelkin request without prejudice.

November 17: Cochran motion to appoint Special Master.

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

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

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

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

November 21: DOJ opposition to extend subpoena deadline.

November 21: Government motion to oppose unsealing affidavits.

November 22: Torres denies motion for extension on subpoena.

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

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

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

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

Photo: Pavan Trikutam via Unsplash

Burners, Burning: The Heat’s Turned up on Mark Meadows [UPDATE-1]

[NB: Check the byline, thanks. Updates appear at the bottom of this post. /~Rayne]

Well, well, well. According to Hunter Walker in a fresh report at Rolling Stone, Kremer the Younger bought burner phones to use when communicating with key persons attached to the White House.

In the thread attached to my last post, a community member commented about the Kremers saying,

… Only if they knew Trump’s plans, the Kremers might be guilty of conspiracy. …

They didn’t need to know Trump’s plans, though. They only needed to understand part of one or more of the conspiracies and then take some action to further that conspiracy.

Like this:

… Kylie Kremer, a top official in the “March for Trump” group that helped plan the Ellipse rally, directed an aide to pick up three burner phones days before Jan. 6, according to three sources who were involved in the event. One of the sources, a member of the “March for Trump” team, says Kremer insisted the phones be purchased using cash and described this as being “of the utmost importance.”

The three sources said Kylie Kremer took one of the phones and used it to communicate with top White House and Trump campaign officials, including Eric Trump, the president’s second-oldest son, who leads the family’s real-estate business; Lara Trump, Eric’s wife and a former senior Trump campaign consultant; Mark Meadows, the former White House chief of staff; and Katrina Pierson, a Trump surrogate and campaign consultant. …

Sending someone who isn’t a Kremer to buy a burner phone with cash to evade tracing suggests Kylie Kremer knew exactly what the role of her organization, Women to Save America First, was within the framework of the insurrection.

If this was a legitimate effort to work with the Trump campaign using dedicated communications for easier access, why the skulkery of a third person using cash buying a burner? Why not use a dedicated VoIP number to contact a communications person in the Trump campaign?

Or a no-contract phone purchased with a credit card? Or an additional number added to an existing cell phone contract?

Why was Meadows involved in any way given his role as the Chief of Staff, which should have been wholly separate from any campaign-related effort?

Whether Meadows interacted with Kremers or other members of the conspiracy as COS (a Hatch Act violation) or as a campaign member (not shielded as executive acts), he’s thoroughly shot through any claim to immunity or privilege.

The existence of burner phones used to contact persons in the White House certainly expands the import of this graf from the House January 6 Committee’s letter to Meadow’s attorney after Meadows’ refused to comply with the committee’s subpoena:

… In addition, Mr. Meadows has not produced even a single document in response to the Select Committee’s subpoena. Although you previously indicated that your firm was searching records that Mr. Meadows provided to you, more than enough time has passed for you to complete your review. Please immediately inform the Select Committee whether Mr. Meadows has any records responsive to the subpoena. Your search for responsive records should include (but not be limited to) any text messages, emails, or application-based messages associated with the cellular phone numbers and private email address the Select Committee has identified. If Mr. Meadows has records that you believe are protected by some form of privilege, you must provide the Select Committee a log describing each such record and the basis for the privilege asserted. …

Emphasis mine. Were any burner phones among those cellular phone numbers requested? Has geo-fencing been used to narrow down where those phones were during the lead up to and on January 6?

We don’t know yet. I suspect we’ll find out more in the not too distant future.

The purchase of the burner phones, though, look like an overt act to advance a conspiracy (18 USC 371).

Sure hope both of the Kremers as well as the aide who was asked to buy the burners, the third team member who received a burner phone, and Meadows all realize this is only getting worse for them.

Same for the Trump family members Eric and Lara who must be getting a little itchy after Trump’s former attorney Michael Cohen resurfaced.

Especially for Meadows if he continues to blow off Congress with his refusal to comply with the January 6 Committee’s subpoena; it won’t be just contempt of Congress (two counts under 2 USC 192) with which he may be charged and prosecuted.

Hello, 18 USC 1505 otherwise known as Obstruction of proceedings before departments, agencies, and committees.

Perhaps with a domestic terror enhancement?

~ ~ ~

UPDATE-1 — 11:45 A.M. 25-NOV-2021 —

LOL Really? Eric’s going to try to SLAPP suit people in small outlets who don’t report the burner phones Kylie Kremer asked an aide to purchase may have been used to call him and Lara?

I love the smell of discovery in the morning!!

False Identifications and Two Delayed Arrests: Jeremy Baouche and Mark Mazza

The pace of the January 6 arrests finally slowed considerably, presumably as DOJ finishes working through the arrests of trespassers whose phone they need for evidence against more serious defendants.

But two recent arrests, those of Jeremy Baouche and Mark Mazza, show that DOJ is also only getting around to suspects of more interest, but about whom the investigation faced early hiccups.

Jeremy Baouche

The FBI first got Jeremy Baouche’s name when several people falsely IDed him in this BOLO poster in mid-January, as well as a tip that may or may not have been a response to the poster that revealed that he worked at General Dynamics Electric Boat. Apparently based off those tips, the FBI attempted to interview him on January 20, but once he heard the FBI agents want to talk about January 6, he (wisely) refused to say anything without an attorney.

But as a result of those investigative steps into multiple tips misidentifying Baouche, the government got information from Baouche’s employer — through whom he has a Secret security clearance — showing him conducting alarming searches on his work computer in the weeks leading up to the riot.

On January 22, 2021,JEREMY K BAOUCHE’s employer, Electric Boat (a Department of Defense Contractor), voluntarily provided TFO Carter with an internet search history from BAOUCHE’s work computer from December 1, 2020, until January 20, 2021. They also provided the security banner that all employees see when they use a computer at Electric Boat that states it is subject to search by the employer. In BAOUCHE’s search history there were searches on topics including the inauguration, the U.S. Capitol building layout, guns, rifle scopes, lasers, Trump protests, FBI Capitol, and searches for jobs in the western U.S. It should be noted that BAOUCHE has a secret security clearance as part of his employment.

The affidavit doesn’t say whether the inquiries by the FBI led Electric Boat to look more closely and offer this up or whether the FBI asked for it.

At some point, the FBI obtained the Google GeoFence location for Baouche, showing his movements outside and then inside the building.

That alerted the FBI which videos to check, and from that, they found a picture of Baouche inside the Capitol that matched what he was wearing in a picture — they include this without explanation — “in a social media post standing with Roger Stone on January 5, 2021.”

On March 1, Grayson Sherrill, was arrested (he was identified by his family members). He was one of the guys shown in the BOLO mistakenly identified as Baouche. On March 16, Elliot Bishai, the guy confused with Baouche, was arrested. But by that point, the FBI had already confirmed that Baouche had also attended the riot, and so, after what started as misidentifications, he would end up being arrested himself.

On April 30, one of Baouche’s co-workers not only identified him from a surveillance video still showing him, but also described that he always cuffs his pants. One of the FBI agents who had tried to interview Baouche had noted that his pants were cuffed. The same witness described that Baouche had lied about why he took off from work on January 5 and 6, claiming he was going fishing with his grandfather in January.

W-2 then said he recalled BAOUCHE taking off January 5, 2021 and January 6, 2021. W-2 said that BAOUCHE told him he was going fishing with his grandfather. W-2 said he thought this was strange to go fishing with a grandfather in January, but then thought maybe it was ice fishing.

In August, FBI obtained the full report from the warrant on Baouche’s Google account. The arrest affidavit describes evidence corroborating that Baouche traveled to DC.

On approximately August 4, 2021, TFO Banwell completed a review of the Cellbrite report from the BAOUCHE Google search warrant which was submitted in this investigation. TFO Banwell reviewed the material provided from Google from November 2020 until June 2021.

Information obtained through Google on BAOUCHE’S account includes videos that appear to be taken from his phone from inside and outside of the U.S. Capitol on January 6, 2021, and photos of him with location data in Washington, D.C. on January 5, 2021. Also found was an email confirmation of a motel reservation in the name of JEREMY BAOUCHE for the Red Roof Inn Plus, in Washington, D.C. with check in on January 5, 2021 and check out on January 6, 2021. Furthert [sic] investigation revealed that BAOUCHE purchased a Pro-megaphone rechargeable battery and Pyle megaphone 50-watt siren bullhorn speaker with detachable microphone and lightweight strap sometime between November 22, 2020 and December 26, 2020,. The description matches the bullhorn BAOUCHE was seen carrying inside the Capitol.

But the arrest affidavit doesn’t explain whether Baouche conducted similarly alarming searches from his own computer.

It’s unclear whether there’s more to Baouche’s searches, his bullhorn purchase by Christmas, the two people who accompanied him to the riot, or his picture with Roger Stone. But what started as a mistake turned ultimately led to his arrest.

Mark Mazza

The FBI first identified Mazza on January 28 after the ATF alerted them that a gun that had been seized when it fell out of the waistband of a person who was fighting with cops on January 6 had been reported stolen by Mazza.

Mazza had claimed that the gun was stolen from a rental car in the parking lot of the Hard Rock Casino in Cincinnati sometime on January 6, after which, Mazza falsely told local cops, he returned to his home Indiana. But a location warrant obtained on Mazza’s phone in February showed that he had in fact driven through Ohio to DC for the riot. And a public review of Mazza’s Twitter account showed that he had replied to Don Jr and others linking a video from the riot.

A search warrant served on Twitter (the arrest affidavit doesn’t reveal its date) yielded selfies from the riot, as well.

On March 25, the FBI interviewed Mazza on his front porch in Shelbyville, IN. He admitted he had been at the riot and provided some details loosely resembling what video analysis would later show. But he claimed he had lost the gun while in the Lower West Tunnel, where video evidence placed him after the gun had already seized by the cop. And he denied assaulting any cop, even though video evidence showed someone believed to be him fighting with cops, armed with a baton. He also suggested that had he seen Nancy Pelosi that day he might have done something that would have gotten him arrested a lot quicker.

MAZZA was asked “Is there anything you told us that you want to change or add to?” MAZZA replied “It was cold as hell that day, that whole three days. … never did get to talk to Nancy … I thought Nan and I would hit it off.” And “I was glad I didn’t because you’d be here for another reason and I told my kids that if they show up, I’m surrendering, nope, they can have me, because I may go down as a hero.” MAZZA further stated that, “If you do have to come back and take me, put me in a fed. … I just want three squares and a nice clean room, someone takes care of my health care and I’m good.”

The arrest affidavit makes clear that when Mazza first entered the Tunnel on January 6, he wore a scarf that obscured his face.

And the affidavit suggests that he later used his baton to protect Michael Fanone and another officer after they got dragged into the crowd.

But it still took almost eight months after that interview before the FBI arrested Mazza, and as the affidavit notes, they’re still not sure whether he was the guy who was fighting with a cop when the gun fell out of the waistband.

It’s an example of something I’ve written about before: one reason so many Jan 6ers are being prosecuted for assault is because there’s video evidence. But in the case of the person who was fighting with a cop when Mazza’s gun dropped from that person’s waistband, there appears to be no official video, and the cop in questioned IDed someone else as his assailant. So thus far, at least, Mazza wasn’t charged for that assault.

Mark, Mark, Mark!: No Wonder Meadows Balked at House Subpoena

[NB: Check the byline, thanks. /~Rayne]

This isn’t going to be everybody’s cup of tea, but I couldn’t help think of this dubstep mix by Massachusetts artist ZMcD titled Mark Mark Mark.

It popped into my head while reading Hunter Walker’s latest piece in Rolling Stone, Leaked Texts: Jan. 6 Organizers Say They Were ‘Following POTUS’ Lead’.

Apparently there are text messages from the rally organizers Amy Kremer, Women For America First’s chair, and Kylie Jane Kremer, WAF’s executive director, which are incriminating:

… Two sources who were involved in planning the Ellipse rally previously told Rolling Stone they had extensive interactions with members of Trump’s team, including former White House Chief of Staff Mark Meadows. The text messages provide a deeper understanding of what that cooperation entailed, including an in-person meeting at the White House. Rally organizers also described working with Trump’s team to announce the event, promote it, and grant access to VIP guests. A spokesperson for the former president did not respond to a request for comment on the record. …

Oh Mark, Mark, Mark!

No wonder he’s dragging his butt submitting to the House January 6 Committee’s subpoena.

… Two days later, Kremer texted some of the organizers to let them know she was temporarily getting off the bus to travel to Washington for a White House meeting.

“For those of you that weren’t aware, I have jumped off the tour for the night and am headed to DC. I have a mtg at the WH tomorrow afternoon and then will be back tomorrow night,” wrote Kremer. “Rest well. I’ll make sure the President knows about the tour tomorrow!”

The message describing Kremer’s White House meeting is one of several where she and Kylie, indicated they were in communication with Trump’s team. …

Kremer sent that text on November 30, 2020 about a December 1 meeting at the White House.

Six weeks later Kremer would be ordering appetizers and dinner at the Willard Intercontinental Hotel while insurrectionists continued to riot inside the Capitol Building. Mark Meadows will likely know this if he was copied in a group message sent by March to Save America/Women for America First rally organizers.

No wonder the committee and the House hasn’t yet voted to hold Meadows in contempt, sending him a tautly worded letter when he refused to comply.

This is Meadow’s chance to save his behind by looking into immunity because these text messages can’t shed a good light on him.

Perhaps he should call former Nixon White House counsel John Dean about this (what a pity he can’t call Jeb Stuart Magruder who like Dean was granted limited immunity for his cooperation during the Watergate investigation).

No matter whether he calls Dean or not, I sure hope Meadows has lawyered up.

And I sure hope he’s thought good and hard whether that slack-bottomed chronic golf cheat is worth his time and effort.

I certainly wouldn’t put faith in the support of the Kremers, as text messages indicate one of them got sloshed the evening of January 6, locked herself in a bathroom and then begged to be rescued in the early morning January 7.

The Office of Special Counsel Report on Trumpsters’ Crimes: Toothless, But Useful?

The Office of Special Counsel (the organization meant to protect whistleblowers, not Robert Mueller or John Durham) just released a report finding that 13 senior Trump officials — including Hatch Act recidivist Kellyanne Conway — violated prohibitions on engaging in electoral politics while acting in an official capacity during the 2020 election.

The most important parts of the report describe the many reasons why the Official of Special Counsel is utterly powerless to prevent the kind of gleeful flouting of norms that Trump practiced. Several of these amount to admitting that if the President encourages Hatch Act violations, there’s nothing you can do about it.

1. OSC’s enforcement tools are limited with respect to Senate-confirmed presidential appointees (PAS) and White House commissioned officers. Potential fix: A statutory amendment that (1) allows OSC to pursue substantial monetary penalties against PAS and commissioned officers before the MSPB, and (2) grants the MSPB jurisdiction over former employees for Hatch Act violations committed during their period of federal employment.

2. OSC did not receive from the Trump administration the good faith cooperation necessary to ensure full compliance with the Hatch Act. Potential fix: A statutory amendment granting the MSPB greater authority to enforce OSC’s subpoenas and other investigative requests.

That said, this report and some of the people it names as having broken the law, including Kayleigh McEnany, Mark Meadows, and Chad Wolf, may be of some use going forward.

That’s because DOJ has laid the ground work not to treat politicians’ actions leading up to and during January 6 with the protections accorded their political office based on the precedents holding that the scope of federal office excludes campaign activity.

The record indicates that the January 6 rally was an electioneering or campaign activity that Brooks would ordinarily be presumed to have undertaken in an unofficial capacity. Activities specifically directed toward the success of a candidate for a partisan political office in a campaign context—electioneering or campaign activities—are not within the scope of the office or employment of a Member of the House of Representatives. Like other elected officials, Members run for reelection themselves and routinely campaign for other political candidates. But they do so in their private, rather than official, capacities.

This understanding that the scope of federal office excludes campaign activity is broadly reflected in numerous authorities. This Court, for example, emphasized “the basic principle that government funds should not be spent to help incumbents gain reelection” in holding that House or Senate mailings aimed at that purpose are “unofficial communication[s].” Common Cause v. Bolger, 574 F. Supp. 672, 683 (D.D.C. 1982) (upholding statute that provided franking privileges for official communications but not unofficial communications).

DOJ did that even as it declined to invoke Executive Privilege for Trump’s own communications with some of these people (explicitly so with McEnany and Meadows).

Whatever else this report lays out, it amounts to the neutral independent body entrusted with such investigations finding that Trump exploited the timing of the election to encourage such politicization of the White House.

OSC received complaints alleging that the 13 senior Trump administration officials listed in Part III violated the Hatch Act in one of two ways: by making statements supporting or opposing a candidate for partisan political office while speaking in an official capacity, or by using their official authority in connection with, and in furtherance of, the RNC. Section 7323(a)(1) of Title 5 of the U.S. Code prohibits federal executive branch employees from using their official authority or influence to interfere with or affect the results of an election. Under that prohibition, it is illegal for an employee to support or oppose a candidate for partisan political office while acting in an official capacity. Yet Trump administration officials did precisely that. And while the specific facts of each case are different, they share this fundamental commonality—senior Trump administration officials chose to use their official authority not for the legitimate functions of the government, but to promote the reelection of President Trump in violation of the law.

The administration’s willful disregard for the law was especially pernicious considering the timing of when many of these violations took place. OSC cannot, in most cases, stop violations from happening in real time. Even apparently straightforward violations of the Hatch Act may not turn out to actually be violations upon further investigation. Therefore, investigating alleged violations is the only way to ensure a fair result. Accordingly, OSC affords appropriate due process to the subject of a complaint and gathers the relevant facts before reaching a conclusion. As a result, OSC’s investigations can often stretch out for weeks or even months. This reality creates a window for an administration that is so inclined to ignore the Hatch Act in the final months of an election cycle, knowing full well that any public report or disciplinary action would not likely occur until well after the election. However, the benefit to the administration and resultant harm—the use of official authority or influence to interfere with or affect an election—would accrue on or before election day. As described in Part III, OSC has concluded that the Trump administration tacitly or expressly approved myriad Hatch Act violations committed within that critical period immediately prior to the 2020 election during which OSC was unable to both investigate and resolve the violations before election day. [my emphasis]

This is what Trump spent the two months after he lost: turning the White House into a full-time election-stealing headquarters.

So while the OSC may be totally useless in policing the politicization of someone who refuses to be bound by any norms, this report may be useful in the days ahead for the way that it documents how thoroughly Trump did that.

Gina Bisignano: If a Plea Deal Falls on the Docket and No One Hears It …

It turns out there are a lot of things that won’t show up on a January 6 docket.

According to a motion to ditch her house arrest filed last week, Gina Bisignano — the Beverly Hills salon owner who wore a Louis Vuitton sweater to the insurrection — signed a plea deal back in July.

10. On July 28, 2021, Defendant signed a plea agreement in the above captioned case UNDER SEAL.

11. On August 4, 2021, Defendant appeared before this Court and entered a guilty plea in the above captioned case, UNDER SEAL, to multiple counts of the indictment.

Normally, when people sign plea deals under seal like this, it’s a sign of a cooperation agreement.

That wouldn’t be surprising. DOJ has been trying to charge the group of LA-area anti-vax activists who traveled to DC together in a conspiracy for most of the year. And the transcript of Danny Rodriguez’ March 31 post-arrest interview showed the FBI agents interviewing Rodriguez — who went to insurrection with Gina and others and whose alleged tasering of Michael Fanone would form the center of any conspiracy — at least pretending that she was talking with investigators, possibly even claiming that Rodriguez threatened her to keep quiet at a visit to her home.

Q. Did you talk to Gina before she got arrested?

A. Um-hmm.

Q. What’d you find out from her?

A. Nothing. I mean, we just said hi. But, I mean, we didn’t talk about anything else. I don’t really know her that well.

Q. Did you go over to her house?

A. I’ve been to her house.

Q. After January 6th, have you been to her house?

A. Yeah. I went one time, yes.

Q. With Ed?

A. No.

Q. With who?

A. Gabe. The guy who turned a rat.

Q. What do you mean?

A. The guy who’s snitching on everyone. He’s a Trump supporter, but — and he had all this — he used to always pick fights with BLM and Antifa, and we always had problems with him making us look bad, and he always wanted to get violent. And now he’s turned on us — or, me.

Q. What happened when you went with Gabe to talk to Gina?

A. It was just, like, to touch base. It was just like, hey, you know, we’re — we made it. We’re back. Everything’s okay. Are you okay? Kind of thing.

Q. What is Gabe going to say happened?

A. I don’t know. I don’t know about that guy. I mean, I haven’t had contact with him and he was really quiet. He looked like he didn’t like what happened and he was just — kind of just sit — staring at the floor a little bit or something. Like, sitting on the couch quiet. And Gina and I were talking about D.C. and he was just quiet and, I mean — and then he left and I left. We were only there for, like, 30 minutes maybe.

Q. Is there any reason why Gina would tell us that you told her not to say anything to — about you being at the Capitol?

A. Yeah. I mean —

Q. Is that what you guys talked about?

A. I guess. Yeah. I mean, like — yeah. We’re like, don’t talk about this and don’t tell anybody and —

Q. Did you threaten her?

A. No.

Q. But you told her not to say anything.

A. No, I didn’t tell her. I mean, I think it was — no. I don’t even think I told her not to say anything. I just think it was just assumed or implied that —

Q. Well, tell me what you said because I don’t want to put words in your mouth. Tell me how the conversation went.

A. I really didn’t talk to Gina too much. I mean, we were over there and just talking, and was smoking some weed on her patio. That’s it.

Q. And?

A. I didn’t threaten her or tell her any — tell her to do anything.

Q. But you guys did talk about not saying anything to the police about what happened in D.C.?

A. We weren’t even talking necessarily about not talking to the police. We were saying not to talk to — about this to anyone that we know.

Q. So just don’t tell anybody?

A. Just keep it quiet and don’t tell anybody anything and let’s try to live our lives normal, but not really, no.

Q. Okay.

[snip]

AGENT ELIAS: And then he said he met up with out there Kayla, Chris Almonte, somebody named Sauna, and Gina. And then we talked a little bit about Gina and he said that, after January 6th, he did go to Gina’s house with Gabe one time. And they did discuss not saying anything to anyone.

BY AGENT ARMENTA: Q. Okay. So you told Gina that?

A. Yeah. We were just not going to talk to — talk about it with anybody.

Q. Did you threaten her at all?

A. No. For sure, no.

Q. So she’s not going to say that?

A. I would hope not.

Q. What about —

A. No. She’s a sweet woman. I wouldn’t threaten her. And plus, what I did, why — how can I threaten? I mean, if I threaten her, she’s just going to turn me in, right? [my emphasis]

Revealing a cooperation plea deal without permission is a good way to ruin your chances to get a 5K1.1 letter, which is what the government submits to ask for a lesser sentence in exchange for substantial assistance. So it’s possible the plea deal has gone south.

Nevertheless, we should expect there are secret plea deals like this among the 650 defendants. And so I wanted to observe several things about Bisignano’s docket. Mostly, that there’s no sign of a plea deal in it. Or anything else of interest.

Bisignano was arrested on January 19 and indicted ten days later. She was in a limbo for an extended period amid COVID-related transfer delays and also a delay getting her attorney admitted to the case. On February 26, Judge Carl Nichols released her to the house arrest she’s now trying to get relaxed.

But aside from adoption of a protective order in April (that is, after the Rodriguez agents claimed that Bisignano may have already started talking) and a grand jury disclosure order in July, just days before the plea deal, the only things that have happened in the docket are repeated requests for relaxation of her release conditions, status conferences, and discovery. The only thing reported out from a September status hearing pertained to her request for a relaxation of her release conditions.

Days before Bisignano pled guilty, July 24, the prosecutor in this case, Kimberly Paschall provided a summary of the discovery provided to day (which was mostly the stuff that went into her arrest). There has been no other discovery described outside of the mass discovery status updates.

All of which is to say, there’s nothing in the docket.

I raise all this not just to say, we have no idea what this means, though we have no idea what Bisignano’s public claim to have entered into a sealed plea deal in July means. The expected conspiracy case has never been publicly filed.

But it is worth noting that DOJ has not visibly met two deadlines set by Judge Amy Berman Jackson in the Rodriguez case, to tell her whether his case will be joined with others accused of assaulting Fanone, and to explain why he hasn’t been offered a plea deal.

First of all, the Court will require the government to make its intentions plain, and therefore it is HEREBY ORDERED that any motion to join this case to any other for trial must be filed by November 5, 2021. Any motion to extend that date must be based on good cause shown, and vague references to ongoing investigations or extenuating circumstances will not suffice; if matters must be submitted to the Court under seal, the government is familiar with how to accomplish that.

Second, it is FURTHER ORDERED that the government must inform the Court by November 5, 2021 whether a plea offer has been extended in this case and if not, why not.

These filings were due — on the docket, or under seal — by Friday, but there’s nothing there.

The lesson of this post, then, is that for all the wailing that nothing is going on in the January 6 investigation, there’s likely to be a lot going on that we’re not seeing.

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