25-3=22: Diminishing Representations

Less than a day after Sidney Powell pleaded guilty in Georgia, but before he made his curious comments that she would be conflicted from representing him, Trump responded to DOJ’s bid to require him to reveal any advice of counsel defense by mid-December, when trial exhibits are due.

In the DOJ motion, they claimed that Trump knew what had been withheld from DOJ under privilege claims.

[T]he defendant knows what information the Government has—and does not have—that might support or undermine the defense. The Government produced in discovery the privilege logs for each witness who withheld material on the basis of a claim of privilege on behalf of the defendant or his campaign, and in some cases the defendant’s campaign was directly involved in discussions regarding privilege during the course of the investigation. In other instances, the Government produced court orders requiring the production of material claimed to be privileged. Compelling the defendant to provide notice, and thereby discovery, would be reciprocal of what the Government already has produced. For example, defense counsel publicly identified one attorney on whose advice the defense intends to rely at trial, and the Government has produced in discovery substantial evidence regarding that attorney and his advice, including relevant search warrant returns.8 Any material relevant to that attorney’s advice that remains shielded by the attorney-client privilege should be produced to the Government at the earliest date to avoid disruption of the trial schedule.

8 That same attorney asserted an attorney-client privilege with the defendant and his campaign to shield material from disclosure to Congress. See Eastman v. Thompson, Case No. 8:22-cv-00099 (C.D. Cal.), ECF No. 260 at 15 (“The evidence clearly supports an attorney-client relationship between President Trump, his campaign, and [plaintiff] during January 4-7, 2021.”).

Trump appears to disagree with DOJ’s claim that he knows the universe of materials withheld on privilege grounds. He wants DOJ to share with him everything that DOJ knows about over which a privilege claim has been made.

He even suggests that some of these 25 people, potentially including Powell, were not claiming his was the privilege they were protecting.

The prosecution claims that 25 witnesses have invoked privilege. Presumably, the prosecution also received privilege logs or other privilege invocations in response to document requests. The prosecution should be required to disclose these 25 witnesses, along with all of the logs in which the prosecution is interested. At this time, defense counsel has not been able to fully review the voluminous discovery in this matter, which is indeed impossible within the schedule set by the Court.

At a minimum, the prosecution should (1) identify all materials within their discovery production that they assert are attorney-client privileged information, work product, or are otherwise protected; (2) describe the basis for the assertion that the materials are protected and who holds the privilege with respect to those materials; (3) identify the 25 witnesses referenced in the motion, or any other witnesses, that have asserted the attorney-client privilege or who the prosecution believes possess attorney-client privileged information; and (4) identify all materials not within their discovery production that they believe the defense would be required to produce regarding an advice of counsel defense, including the source of the materials.

His filing even made an obscure comment, taunting that DOJ would need to turn over “what it recovers” from previously privileged witnesses and records.

6 The prosecution does not seem to recognize that if the defense produces privileged discovery, the prosecution then has an obligation to produce what it recovers from its investigation of the previously privileged witnesses and records.

That was Friday. Also on Friday, Kenneth Chesebro pled guilty in Georgia. And Jenna Ellis has (unsurprisingly, given that Trump refused to pay for her defense) also pled guilty.

Just for reference, here are the privilege logs that Rudy and Bernie Kerik submitted in the Ruby Freeman case; between the two of them, Jenna appears over 150 times, including on a bunch of Dominion-related communications.

There were clearly 25 lawyers in the know. But Trump seems to have some doubts whether he knows who those lawyers were representing.

As more of them plead guilty, he may have more urgency in wanting to learn the full details of their privilege claims.

Update: Folks are disputing how useful Jenna will be as a cooperating witness. I agree with NYT: she’s more valuable than Ken Chesebro, and possibly even than Sidney Powell.

Here are the people that she at first tried to claim privilege over with the January 6 Committee, only to invoke the Fifth Amendment:

Trump’s Motions to Dismiss Things That Aren’t the Charges Against Him

Last night, Trump just met the deadline for filing motions to dismiss his January 6 indictment.

I’m going to lay out what he filed. I’ll review them at length in follow-ups. Here’s a handy table to understand them.

Motion to Dismiss on Constitutional Grounds: This 31-page motion cites Mollie “Federalist Faceplant” Hemingway. But it doesn’t actually mention the charges in the indictment. Having not described how his (and his fake electors’) false claims were charged as conspiracy to defraud the government, having not explained how orders to Mike Pence and the incitement of his mob obstructed the vote certification, having not acknowledged efforts to reverse vote counts in the states, Trump then claims he’s being prosecuted for First Amendment protected speech.

In a section that significantly overlaps with his Motion to Dismiss on Absolute Immunity grounds, Trump claims the failed January 6 impeachment prevents him from being tried on substantially different crimes.

Motion to Dismiss on Statutory Grounds: This filing moves to dismiss the indictment for failure to state a claim, a motion similar to dozens if not hundreds that have failed for January 6 defendants.

Trump moves to dimiss the 18 USC 371 charge against him because, he claims, all the lying alleged in the indictment (which he all but concedes was false in the MTD on Constitutional Grounds) didn’t involve deceit. He even argues that because there was “a clear difference in form” in the fake electors submitted to NARA, no deceit (or forgery) was involved!

Interestingly, Trump says that his false statements to Congress under 18 USC 1001 (which, he notes, was not charged) would be exempted as advocacy. This ignores the abundant litigation finding the vote certification to be an official proceeding.

Trump’s challenge to 18 USC 1512(c)(2) largely involves completely misrepresenting the finding of Robertson, which I wrote about here. I don’t think Trump even engages with the “otherwise illegal” standard applied to Thomas Robertson. He definitely doesn’t engage with the standard that right wing judges want to adopt: unlawful personal benefit.

Trump’s attack on 18 USC 241 is particularly curious. In spite of the fact that his own DOJ was taking actions against false election claims online in 2020, he argues there was no court decision, in 2020, saying that it would be illegal (the Douglass Mackey prosecution, charged by a guy who had been one of the Bill Barr’s top deputies, has since done so). More curiously, Trump doesn’t even seem to understand that all his other attempts to prevent Joe Biden votes from being counted are also overt acts that support this prosecution.

Motion to Dismiss for Selective and Vindictive Prosecution: This is mostly a political document. It points to the scant evidence that Joe Biden was behind this prosecution. It claims that this indictment was retaliation for Trump’s complaints about his stolen document indictment. He cites his own attacks on Hunter Biden (citing Congressional press announcements, not any of his own posts, though he does include two of his own other posts on more general attacks), including one that post-dates this indictment (which was charged on August 1).

4 See Hunter Biden, Burisma, and Corruption: The Impact on U.S. Government Policy and Related Concerns, U.S. Senate Comm. on Homeland Security and Government Affairs and U.S. Senate Comm. on Finance (Sept. 22, 2020), https://www.hsgac.senate.gov/wpcontent/uploads/imo/media/doc/HSGAC_Finance_Report_FINAL.pdf, at 3.

5 See Second Bank Records Memorandum from the Oversight Committee’s Investigation into the Biden Family’s Influence Peddling and Business Schemes, House of Rep. Comm. on Oversight and Accountability (May 10, 2023), https://oversight.house.gov/wpcontent/uploads/2023/05/Bank-Memorandum-5.10.23.pdf, at 5, 9.

6 See Third Bank Records Memorandum from the Oversight Committee’s Investigation into the Biden Family’s Influence Peddling and Business Schemes, House of Rep. Comm. on Oversight and Accountability (Aug. 9, 2023), https://oversight.house.gov/wpcontent/uploads/2023/08/Third-Bank-Records-Memorandum_Redacted.pdf, at 2. [my emphasis]

This ploy is interesting, given the likelihood that Hunter Biden will file a parallel selective prosecution motion.

He also cites two articles showing that Garland didn’t open an investigation into Trump right away as proof that he was unfairly targeted. I suspect Trump may try to call Steve D’Antuono, whose actions are described in one of them (the famous and problematic Carol Leonnig story), to talk about his own resistance to opening the investigation. This motion doesn’t do the least amount of things it’d need to do to actually get a hearing (in part because the evidence all shows the opposite of what Trump claims). But he would have fun if he somehow did get a hearing (and if he does not but Hunter does, he’ll use Hunter’s efforts to renew the demand).

Motion to Strike Inflammatory Allegations: This is an attempt to eliminate the language in the indictment showing how Trump mobilized his mob because he isn’t charged with mobilizing the mob (as DOJ already laid out, that is one of the means by which he obstructed the vote certification). This is likely tactical, an attempt to remove one of the primary means by which he obstructed the vote certification to make his 18 USC 1512(c)(2) argument less flimsy.

Trump’s First Amendment Defense of Mobilizing His Violent Mob

There’s a move in Trump’s motion for a stay pending appeal of the gag order Judge Tanya Chutkan imposed that deserves more attention.

Trump appealed the gag last Tuesday and requested the stay on Thursday, about which Judge Chutkan ordered additional briefing that same day; we’ll see more briefing about this all week.

MINUTE ORDER as to DONALD J. TRUMP: Upon consideration of Defendant’s opposed 110 Motion for Stay Pending Appeal, Request for Temporary Administrative Stay, and Memorandum in Support, it is hereby ORDERED that the court’s 105 Opinion and Order is administratively STAYED to permit the parties’ briefing and the court’s consideration of Defendant’s Motion. It is FURTHER ORDERED that the government shall file any opposition to Defendant’s Motion by October 25, 2023, and that Defendant shall file any Reply by October 28, 2023.

A substantial portion of the 33-page motion speaks for the First Amendment rights of his mob to hear, respond to, and amplify Trump’s speech. To defend this principle, Trump cites, among other things, the Missouri v. Biden that SCOTUS just agreed to review over the objections of Sam Alito, Clarence Thomas, and Neil Gorsuch.

Under the First Amendment, violating the rights of a speaker inflicts an equal and reciprocal constitutional injury on the listener. “Freedom of speech presupposes a willing speaker. But where a speaker exists, . . . the protection afforded is to the communication, to its source and to its recipients both.” Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976) (emphasis added) (collecting many cases); see also, e.g., Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 390 (1969) (“It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.”); Packingham v. North Carolina, 582 U.S. 98, 104 (2017) (recognizing the right to “speak and listen, and then … speak and listen once more,” as a “fundamental principle of the First Amendment”); Missouri v. Biden, — F.4th –, No. 23- 30445, 2023 WL 6425697, at *11 (5th Cir. Oct. 3, 2023) (holding that the “right to listen is ‘reciprocal’ to the … right to speak” and “constitutes an independent basis” for relief). Thus, injuring President Trump’s ability to speak injures the First Amendment rights of over 100 million Americans who listen to him, respond to him, and amplify his message.

The claim to have 100 million listeners is a bit like calling his NY penthouse 33,000 square feet, insofar as it relies on overlapping numbers, including the 87 million followers he has but does not tweet to on Xitter.

Trump necessarily dedicates a very long footnote to explaining how he has standing to appeal this gag on behalf of his mob.

3 President Trump unquestionably has third-party standing to defend the rights of his audiences in this context. The Supreme Court is “quite forgiving” of third-party standing requirements “[w]ithin the context of the First Amendment.” Kowalski v. Tesmer, 543 U.S. 125, 130 (2004). The First Amendment’s overbreadth doctrine, for example, relieves the third-party plaintiff of the burden to show the usual “close relationship” and “hindrance” required by the third-party standing doctrine, id.; instead, Article III injury is all that is required. See id.; United States v. Sineneng-Smith, 140 S. Ct. 1575, 1586 (2020) (Thomas, J., concurring) (“Litigants raising overbreadth challenges rarely satisfy either requirement [‘close relationship’ and ‘hindrance’], but the Court nevertheless allows third-party standing.”) (citing Dombroski v. Pfister, 380 U.S. 479, 487 (1965)); N.J. Bankers Ass’n v. Att’y Gen., 49 F.4th 849, 860 (3d Cir. 2022) (noting that “the requirement that an impediment exist to the third party asserting his . . . own rights” does not apply when the challenged government action “substantially abridges the First Amendment rights of other parties not before the court”). Further, as the Supreme Court held in Bantam Books Inc. v. Sullivan, it is particularly important to allow third-party standing to vindicate First Amendment interests because “freedoms of expression … are vulnerable to gravely damaging yet barely visible encroachments” and must be protected by “the most rigorous procedural safeguards.” 372 U.S. 58, 66 (1963); see also id. at 64 n.6 (upholding the third-party standing of book publishers to assert the rights of distributors because “[t]he distributor … is not likely to sustain sufficient economic injury to induce him to seek judicial vindication of his rights,” whereas the seller has a “greater . . . stake” in vindicating those rights). In addition, the doctrine of third-party standing applies “when enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties’ rights.” Kowalski, 543 U.S. at 130. Here, the interference and restriction of President Trump’s First Amendment rights “would result indirectly in the violation of third parties’ rights,” id.—i.e., the rights of his audiences to receive, respond to, and amplify his speech.

I think this footnote is suspect, legally and practically. I mean, the notion that Stephen Miller’s NGO for fascism couldn’t vindicate these rights is nonsense. But it is nevertheless telling.

Trump makes that argument even while complaining that Judge Chutkan had to rely on the potential actions of others — that very same mob riled up by the amplified false victimization of Trump — to justify the gag itself.

Unable to justify the Gag Order based on President Trump’s actions, the prosecution pivots to third parties, alleging that unnamed others, outside of President Trump’s control, acted improperly before this case began. Such concerns cannot justify the Gag Order. The Supreme Court has repeatedly explained that citizens of this country cannot be censored based on a fear of what others might do. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (“[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy . . . except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”).

[snip]

In entering the Gag Order, the Court relied heavily on the anticipated reactions of unidentified, independent third parties to President Trump’s speech. The Court found that “when Defendant has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed.” Id. at 2. But the Court cited no evidence that President Trump’s statements—as distinct from the statements of millions of others—caused such alleged threats or harassment, let alone that the statements were directed to inciting imminent lawless action.

Remember, Trump has repeatedly denied that the indictment accuses him of mobilizing the mob against Congress. Even after DOJ disabused Trump of that fantasy, he is playing coy about the fact that the crime he is alleged to have committed significantly involves riling up a mob to use as a weapon.

Indeed, Trump admits this is the plan to get elected: to rile up the mob again, this time by using this prosecution as a trigger.

The prosecution filed the indictment in this matter on August 1, 2023. Doc. 1. As this case is pending, President Trump continues to campaign for President, and one of his core messages is that the prosecutions against him are part of an unconstitutional strategy to attack and silence the Biden Administration’s chief political rival. To advance this message, President Trump has made many public statements criticizing individuals he believes are wrongly prosecuting him, including President Biden, Attorney General Garland, and Special Prosecutor Jack Smith and his team. This viewpoint—that the prosecution is politically motivated—is one shared by countless Americans.

[snip]

President Trump’s speech in support of his re-election campaign—which is inextricably intertwined with this prosecution and his defense—lies “at the core of our electoral process of the First Amendment freedoms—an area . . . where protection of robust discussion is at its zenith.” Meyer v. Grant, 486 U.S. 414, 425 (1988) (citations and quotations omitted); see also Buckley v. Am. Const. Law Found., Inc., 525 U.S. 182, 186–87 (1999); McIntyre v. Ohio Elec. Comm’n, 514 U.S. 334, 347 (1995) (“[C]ore political speech” encompasses any “advocacy of a politically controversial viewpoint.” “No form of speech is entitled to greater constitutional protection than” core political speech.).

Some of this is just cynicism: by claiming all this is political speech, Trump does base his appeal on the most expansive First Amendment precedent. The legal arguments here, some of them, anyway, are not frivolous.

But he’s not wrong about his campaign strategy. The key to Trump’s political success since he was sworn in was to polarize the electorate based off false claims that any investigation of Trump’s crimes is an attack on him and his mob.

And at one point, Trump’s argument admits that this is all an argument about democracy.

The Gag Order’s carve-outs exacerbate the vagueness problems by imposing new layers of confusion upon the Order. Doc. 105, at 3. The carve-outs seem to authorize “criticizing the government generally, including the current administration or the Department of Justice,” but that does not seem to include criticizing the most relevant figure of the Department of Justice, i.e., Jack Smith. Id. The carve-outs supposedly allow President Trump to state “that his prosecution is politically motivated,” but the Gag Order prevents him from “targeting” the specific actors involved in his prosecution, so it prevents him from giving any specific or detailed justification for this claim. Id. Where claiming that the prosecution is politically motivated ends, and “targeting” the prosecutors against President Trump begins, is anyone’s guess. The carve-outs apparently authorize “statements criticizing the platforms or policies of . . . former Vice President Pence,” id., but the “platforms or policies” of candidates like Pence (and Biden) are deeply intertwined with their views on election integrity, with specific reference to the 2020 election. When does criticism of Mike Pence’s “platforms or policies” become a statement “that target[s] . . . the substance of [his] testimony,” id., when questions about the integrity of the 2020 election are “central” to the 2024 Presidential campaign?

Joe Biden (comments about whom this gag does not restrict) is running on democracy. Mike Pence is running on defending the Constitution.

Trump is running on a promise that none of that matters: no election outcome — not that of 2020, not that of 2024 — should be respected, unless he wins.

And the way to ensure that happens, Trump knows, is to guard the right of his mob to amplify and respond to his false claims of victimization.

Donald Trump Raises Conflict Concerns about His Mike Flynn Pardon

The data mules for Trump’s latest tirade seem to think his claims that Sidney Powell was never his lawyer are all an attempt to deny he ever took legal advice from Powell in the wake of her plea deal in Georgia.

But the substance of his tirade is far more interesting than that.

Trump doesn’t just claim that Sidney Powell was never his attorney — a claim that conflicts with claims Trump made in real time.

He says she would have been conflicted.

Immediately after Trump claims Sidney Powell would have been conflicted (because of what? Trump doesn’t say), the former President turns to the Thanksgiving pardon he gave to confessed agent of Turkey, Mike Flynn.

Trump implies he gave Flynn a pardon because, “He was an innocent man, much like many other innocent people who are being persecuted by this now Fascist government of ours.” But as we’ve just reviewed thanks to Flynn’s stupid lawsuit against DOJ, the pardon itself did not make that claim. Only a White House press release about the pardon did.

Plus, the pardon couldn’t have been based on innocence, not entirely, anyway, because Flynn made false statements in the process of reneging off his prior guilty plea to making false statements. It is quite literally impossible for Flynn to have been innocent of making any unlawful false statements, because the things he said in the process of reneging on his plea deal completely contradicted things he had said under oath earlier. The Flynn pardon was easily the most expansive of any pardons Trump gave (perhaps save the clemency for Roger Stone found in Trump’s desk drawer, which could pardon Stone for murdering someone on Fifth Avenue for all we know). It had to be written that broadly to prevent Judge Sullivan from referring Flynn for perjury before his court. The pardon covered not just the lies Flynn told the FBI on January 24, 2017, it also covered claims Flynn made before an EDVA grand jury and in plea colloquies before Sullivan.

So here we are, just days after DOJ submitted a response to Trump’s claim of absolute immunity that argued — among other things — that a presidential pardon given as part of a quid pro quo would be unlawful, and Trump is offering up not just that Sidney Powell wasn’t his attorney in November 2020 when he claimed she was, but that she would have been conflicted — apparently because of her representation of Mike Flynn! — from being his attorney.

In real time, I addressed the possibility that Trump’s public claims about whether Sidney Powell was or was not his attorney may have been an attempt to eliminate the conflict problem with Flynn’s pardon.

I wonder whether some smart lawyer grew concerned that Sidney Powell was claiming to represent the President even while she was representing someone asking for a pardon.

On November 15, Trump explicitly named Powell as part of his team. On November [19], Powell appeared at Rudy the Dripper’s press conference. On November 22, Rudy and Jenna Ellis made a show of cutting ties with her.

Sidney Powell is practice law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.

According to Maggie Haberman, either he didn’t like her appearance and/or advisors convinced Trump to separate himself from her nutjobbery. Three days later, November 25, Trump pardoned Powell’s client. The next day, after days of promising to Bring the Kraken, Powell finally started releasing her epically batshit suits. Trump has promoted them.

Indeed, it even appears some Administration lawyers are still associated with Powell’s efforts.

I’m not sure I understand whether there would be a conflict between Powell representing Trump (for free, inevitably, as all lawyers do), making desperate efforts to overturn the election at the same time she was trying to ensure her client did no prison time. If that’s a conflict, it may still exist anyway given Powell’s admission to Judge Sullivan that she had repeatedly discussed Flynn with Trump’s campaign lawyer, Jenna Ellis. The fact that DOJ packaged up altered documents to support a Trump attack on Biden may make those ties more important anyway (or lead to more details about them becoming public).

That was the publicly available timeline (and Maggie Haberman’s public explanation) when I wrote the post on November 27, 2020, just two days after the pardon.

But Trump’s January 6 indictment adds a few details to that timeline in the single solitary paragraph addressing Powell’s overt acts, which happens to be tucked away in the section on Georgia, the state where Powell just pled guilty.

On November 16, 2020, on the Defendant’s behalf, his executive assistant sent CoConspirator 3 and others a document containing bullet points critical of a certain voting machine company, writing, “See attached – Please include as is, or almost as is, in lawsuit.” CoConspirator 3 responded nine minutes later, writing, “IT MUST GO IN ALL SUITS IN GA AND PA IMMEDIATELY WITH A FRAUD CLAIM THAT REQUIRES THE ENTIRE ELECTION TO BE SET ASIDE in those states and machines impounded for non-partisan professional inspection.” On November 25, Co-Conspirator 3 filed a lawsuit against the Governor of Georgia falsely alleging “massive election fraud” accomplished through the voting machine company’s election software and hardware. Before the lawsuit was even filed, the Defendant retweeted a post promoting it. The Defendant did this despite the fact that when he had discussed CoConspirator 3’s far-fetched public claims regarding the voting machine company in private with advisors, the Defendant had conceded that they were unsupported and that Co-Conspirator 3 sounded “crazy.” Co-Conspirator 3’s Georgia lawsuit was dismissed on December 7.

Here’s how the timeline looks with the details from the indictment added in:

  • November 15: Trump says publicly Powell was part of his team
  • November 16: Nine minutes after Trump demanded lawsuits include attacks on Dominion, Powell orders that all forthcoming lawsuits include it: “IT MUST GO IN ALL SUITS IN GA AND PA IMMEDIATELY WITH A FRAUD CLAIM THAT REQUIRES THE ENTIRE ELECTION TO BE SET ASIDE”
  • November 19: Powell appears at the Rudy the Dripper press conference, looking far less embarrassing than the President’s lawyer, which didn’t stop Maggie Haberman from claiming that Powell’s appearance was the reason Trump was cutting Powell from his legal team
  • November 22: Jenna Ellis and Rudy make a big show of cutting ties with Powell
  • November 25: Having ordered that all lawsuits include the Dominion attack Trump ordered, Sidney Powell then files the first lawsuit including such an attack; on the very same day, Trump pardons her client and then starts disseminating her bullshit attacks on Dominion

At least according to the indictment, it all happens on the same day: The lawsuit attacking Dominion, the pardon, Trump’s celebration of the lawsuit attacking Dominion.

The indictment focuses on Trump’s claims that Powell was crazy — and up until now I have believed that’s in there as a guaranteed way to show that Trump was pushing lies he had disavowed.

But with Trump ranting about cooperating witness Sidney Powell’s conflicts, I’m no longer so sure.

Update: Fixed date of hair dye presser, h/t critter.

Buried in DOJ’s Absolute Immunity Response, a Comment on Trump’s Suspected Zenith Crimes

Earlier this month, Trump’s DC team filed a motion to dismiss his January 6 indictment based on a claim of absolute immunity, an argument that Presidents cannot be prosecuted for things they did while President.

To get a sense of how shoddy Trump’s argument was, you need only compare the number of citations to these cases:

  • Nixon v. Fitzgerald, which found Presidents had absolute immunity against civil lawsuits for things that fall within their official duties
  • US v. Nixon, which found that the same President who had absolute immunity from civil suit could not use Executive Privilege to withhold evidence from a criminal prosecution
  • Trump v. Vance, which held that Trump, while still President, was not immune from a criminal subpoena
  • Thompson v. Trump, in which SCOTUS upheld a DC Circuit Opinion that upheld a Tanya Chutkan opinion that the events of January 6 overcame any Executive Privilege claim Trump might make to withhold documents from Congress, a far higher bar than withholding them from the FBI

Trump’s absolute immunity claim was a shoddy argument, but you never know what this SCOTUS would rubber stamp, even considering its cert denial in Thompson v. Trump and questions about whether Clarence Thomas (who did not recuse in that case, but did in John Eastman’s appeal of a crime-fraud ruling against him) would be shamed into recusing in this one.

Shoddy argument and all, there was never going to be a way to carry out the first-ever prosecution of a former President without defeating an absolute immunity claim.

In general, DOJ’s response is much more adequate than Trump’s motion to the task of laying out one side of an argument that will ultimately be decided by a very partisan Supreme Court. But it is written as the first response in what will be, whatever the outcome, a historic ruling.

Before it spends ten pages addressing Trump’s application of Nixon v. Fitzgerald, it spends ten pages laying out the constitutional framework in question. In a section addressing Trump’s claim that his impeachment acquittal on January 6 charges meant he could not be charged for related crimes, DOJ notes that Trump argued at the time, that as a former President, the Senate no longer had jurisdiction to hold an impeachment trial. Then it cites the many Republican Senators who used that stance to justify their own acquittal votes. It notes that the Nixon pardon and the Clinton settlement both presumed potential exposure to prosecution once they became former Presidents.

Out of necessity, the Fitzgerald section adopts an analogy from that precedent to this one: In the same way that Fitzgerald likened the President to prosecutors and judges who enjoy immunity for their official acts, Fitzgerald did not immunize those same prosecutors and judges from other crimes. At a time of increased focus on undeclared gifts that Clarence Thomas has accepted from people with matters before the court and after a Sam Alito interview — with someone who has matters before the court — in which he claimed separation of powers prohibited Congress from weighing in on SCOTUS ethics, DOJ cited the 11th Circuit opinion holding that then-Judge Alcee Hastings could be prosecuted. That is, whatever the outcome of this dispute, it may have implications for judges just as it will for Presidents.

Only after those lengthy sections does DOJ get into the specifics of this case, arguing:

  • By misrepresenting the indictment in a bid to repackage it as acts that fit within the President’s official duties, Trump has not treated the allegations as true, as Motions To Dismiss must do
  • Trump’s use of the Take Care Clause to claim the President’s official duties extend to Congress and the states is not backed by statute
  • Because Trump is accused of conspiring with people outside of the government — unsurprisingly, DOJ ignores the Jeffrey Clark allegations in this passage (CC4), but while it invokes Rudy Giuliani (CC1), John Eastman (CC2), Kenneth Chesebro (CC5), and Boris Epshteyn (CC6), it is curiously silent about the allegations pertaining to Sidney Powell (CC3) — the case as a whole should not be dismissed

In total, DOJ’s more specific arguments take up just six pages of the response. I fear it does not do as much as it could do in distinguishing between the role of President and political candidate, something that will come before SCOTUS — and could get there first — in the civil suits against Trump.

And its commentary on Trump’s attempt to use the Take Care Clause to extend the President’s authority into areas reserved to the states and Congress is, in my opinion, too cursory.

The principal case on which the defendant relies (Mot. 35-36, 38, 43-44) for his expansive conception of the Take Care Clause, In re Neagle, 135 U.S. 1 (1890), cannot bear the weight of his arguments. In Neagle, the Supreme Court held that the Take Care Clause authorized the appointment of a deputy marshal to protect a Supreme Court Justice while traveling on circuit even in the absence of congressional authorization. Id. at 67-68; see Logan v. United States, 144 U.S. 263, 294 (1892) (describing Neagle’s holding); Youngstown Sheet & Tube, 343 U.S. at 661 n.3 (Clark, J., concurring) (same). Before reaching that conclusion, the Court in Neagle posed as a rhetorical question—which the defendant cites several times (Mot. 35, 38, 43, 44)—whether the president’s duty under the Take Care Clause is “limited to the enforcement of acts of congress or of treaties of the United States according to their express terms; or does it include the rights, duties, and obligations growing out of the constitution itself, our international relations, and all the protection implied by the nature of the government under the constitution?” 135 U.S. at 64. From the undisputed proposition that the president’s powers under Article II are not limited only to laws and treaties, it does not follow, as the defendant seems to imply, that every “right, duty, or obligation[]” under the Constitution is necessarily coterminous with the president’s powers under the Take Care Clause. Under that theory, for example, the president could superintend Congress’s constitutional obligation to keep a journal of its proceedings, U.S. Const. art. I, § 5, cl. 3, or the judiciary’s duty to adjudicate cases and controversies, U.S. Const. art. III, § 2, cl. 1.

The 11th Circuit and then SCOTUS will be facing a similar, albeit better argued, Take Care Clause argument when they review Mark Meadows’ bid to remove his Georgia prosecution. You’d think DOJ could do better — or at the very least note that Trump abdicated all premise of upholding the Take Care Clause during a crucial 187 minutes when his mob was attacking the Capitol.

All that said, I’m as interested in this response for the associated arguments — the seemingly hypothetical ones — such as the one (already noted) that in weighing this argument, the Supreme Court may also have to consider, again, whether they themselves are immune from prosecution for bribery.

It’s not just Clarence Thomas whose actions this fight could implicate.

In two places, DOJ uses hypotheticals to talk about other Presidential actions that might be crimes, rather than focus on the specifics of the case before Judge Chutkan.

For example, DOJ points to the possibility that a President might trade a pardon — a thing of value — as part of a quid pro quo to obtain false testimony or prevent true testimony.

For example, where a statute prohibits engaging in certain conduct for a corrupt purpose, the statute’s mens rea requirement tends to align, rather than conflict, with the president’s Article II duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, which would weigh heavily against the need for immunity. To illustrate, although the president’s power to grant pardons is exclusive and not subject to congressional regulation, see United States v. Klein, 80 U.S. (13 Wall.) 128, 147-48 (1872), criminal immunity should not shield the corrupt use of a presidential pardon—which plainly constitutes “anything of value” for purposes of the federal bribery statute, see 18 U.S.C. § 201(b)(3)—to induce another person to testify falsely or not to testify at all in a judicial, congressional, or agency proceeding.

Less than five years ago, of course, Roger Stone was telegraphing that prosecutors had offered him leniency if he would testify about dozens of conversations that he had with Trump during the 2016 election. Less than five years ago, the newly cooperative Sidney Powell first asked Trump to hold off on pardoning Mike Flynn, only to welcome a Trump pardon of Flynn while Powell and Flynn plotted ways to steal the election. Less than five years ago, Trump gave a last minute pardon to Steve Bannon, who currently faces four months of prison time because he refused to testify to Congress.

I’m not saying DOJ will revisit these pardons, all of which fit squarely within such a quid pro quo description. I’m noting that if the argument as a whole survives, this part of it may also survive.

The same is true of an even splashier passage. A paragraph describing the implications of Trump’s claim to absolute immunity lays out what some commentators have taken as hyperbolic scenarios of presidential corruption.

The implications of the defendant’s unbounded immunity theory are startling. It would grant absolute immunity from criminal prosecution to a president who accepts a bribe in exchange for a lucrative government contract for a family member; a president who instructs his FBI Director to plant incriminating evidence on a political enemy; a president who orders the National Guard to murder his most prominent critics; or a president who sells nuclear secrets to a foreign adversary. After all, in each of these scenarios, the president could assert that he was simply executing the laws; or communicating with the Department of Justice; or discharging his powers as commander-in-chief; or engaging in foreign diplomacy—and his felonious purposes and motives, as the defendant repeatedly insists, would be completely irrelevant and could never even be aired at trial. In addition to the profoundly troubling implications for the rule of law and the inconsistency with the fundamental principle that no man is above the law, that novel approach to immunity in the criminal context, as explained above, has no basis in law or history.

These seemingly extreme cases of crimes a President might commit, crimes that everyone should agree would face prosecution, include (these are out of order):

  • A President ordering the National Guard to murder his critics
  • A President ordering an FBI agent to plant evidence on his political enemy
  • A bribe paid in exchange for a family member getting a lucrative contract
  • A President selling nuclear secrets to America’s adversaries

Like the pardon discussion above, these hypotheticals — as Commander-in-Chief, with the conduct of foreign policy, with the treatment of classified materials — invoke actions where DOJ typically argues that the President is at the zenith of his power.

We have no reason to believe that Trump ordered the National Guard, specifically, to murder his critics. But we do know that on January 3, 2021, Trump proposed calling out 10,000 members of the National Guard to “protect” his people and facilitate his own march on the Capitol.

And he just cut me off, and he goes, well, we should call in the National Guard.

And then I think it was Max who said something to the effect of, Well, we should only call in the Guard if we expect a problem. And then the President says, no, we should call in the Guard so that there aren’t – so that there isn’t a problem. You know, we need to make sure people are protected.

And he said – he looked over at Max, and I don’t know if somebody was standing behind him or not. He just looked the other way from me and says, you know,  want to call in 10,000 National Guard. And then  opened my folder and wrote down 10,000 National Guard, closed my folder again.

We know that days later Mark Meadows believed the Guard would be present and Proud Boy Charles Donohoe seemed to expect such protection.

Similarly, we don’t know of a specific instance where Trump ordered an FBI agent to plant information on his political enemy. But we do know that as part of a Bill Barr-directed effort to reverse the Mike Flynn prosecution in 2020, misleading dates got added to the notes of Trump’s political enemies, Peter Strzok and Andrew McCabe.

Days after those misleading dates were made public via Sidney Powell, Trump used the misleading dates in a packaged debate attack on Joe Biden.

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

We know of no instance where Trump accepted a bribe in response to which a family member got a US government contract. We do, however, know of an instance where the Trump Administration gave the Saudis something of value — at the least, cover for the execution of Jamal Khashoggi — which everyone seems to believe has a tie to Jared’s lucrative $2 billion contract with the Saudi government.

As to selling nuclear secrets to a foreign adversary? Well, we know Trump had some number of nuclear secrets in his gaudy bathroom and then in his leatherbound box. We have no fucking clue what happened to the secrets that Walt Nauta allegedly withheld from Evan Corcoran’s review that got flown to Bedminster just before a Saudi golf tournament, never to be seen again.

All of which is to say that these edge cases — examples of Presidential misconduct that some commentators have treated as strictly hypothetical — all have near analogues in Trump’s record.

This response is a response about a very specific indictment, an indictment that describes actions Trump took as a candidate, often with those outside government, in ways that usurped the authorities reserved to states and Congress.

But in several points in the filing, DOJ invites review of other potential crimes, crimes conducted at the zenith of Presidential power, but crimes that may — must — otherwise be illegal, if no man is above the law.

Judge Karen Henderson May Not Believe Holding the Presidency Is a Professional Benefit

After much delay, the DC Circuit upheld the conviction of former cop Thomas Robertson, finding that he corruptly obstructed the vote certification on January 6 because he used otherwise unlawful means in obstructing the vote certification.

I won’t spend too much time unpacking it because it will be (and a related opinion already has been) appealed.

Florence Pan, writing the majority opinion for the second straight opinion upholding the application of 18 USC 1512(c)(2) to January 6, found that there was sufficient evidence to find that Robertson had “corruptly” obstructed the vote certification, based on his otherwise felonious conduct.

Karen Henderson ruled that instead, Pan’s earlier opinion upholding 1512(c)(2) — or rather, Justin Walker’s concurrence — is binding as to the standard for “corruptly,” which wasn’t before the court in that ruling.

But then having said Walker was binding, Henderson instead reinterpreted and significantly narrowed his standard requiring personal benefit that Walker espoused.

Here’s how Pan described Henderson’s gymnastics.

The dissent claims that we are bound by Judge Walker’s view that “corruptly” in § 1512(c)(2) requires the defendant to act with the intent of obtaining an unlawful benefit for himself or another. See Dissenting Op. 8–15. But in applying that standard, Judge Walker reasoned that the indictments at issue in Fischer should be upheld, stating that “it might be enough for the Government to prove that a defendant used illegal means (like assaulting police officers) with the intent to procure a benefit (the presidency) for another person (Donald Trump).” Fischer, 64 F.4th at 361 (Walker, J., concurring in part and concurring in the judgment). The dissent does not explain why that reasoning, in an opinion that the dissent believes is binding, does not dictate affirmance in this case.

Instead, the dissent contends that we must overturn the jury’s verdict in this case because “[t]here is no evidence in the record suggesting Robertson obstructed the election certification proceeding in order to obtain an unlawful benefit for himself or someone else.” Dissenting Op. 33. That is incorrect. Robertson believed that the election was “rigged”; announced that he refused to be “disenfranchised”; and declared that he was “prepared to start” an “open armed rebellion.” S.A. 110, 190. That evidence was plainly sufficient to support a finding that Robertson intended to secure the unlawful benefit of installing the loser of the presidential election, Donald J. Trump, as its winner. See Fischer, 64 F.4th at 361 (Walker, J., concurring in part and concurring in the judgment); see also id. at 356 n.5 (reasoning that “the beneficiary of an unlawful benefit need not be the defendant or his friends” and § 1512(c)(2) could apply to a defendant “trying to secure the presidency for Donald Trump”).

To shore up its assessment of the evidence, the dissent states in a footnote that “[t]he ‘unlawful benefit’ the defendant seeks must be financial, professional or exculpatory.” Dissenting Op. 34 n.18. But Judge Walker’s concurring decision in Fischer, which the dissent believes is binding, see id. at 1, did not endorse such a limited definition. See Fischer, 64 F.4th at 356 n.5 (Walker, J., concurring in part and concurring in the judgment). And Judge Walker himself emphasized that, even were the requisite “benefit” so limited, the defendants’ conduct “may have been an attempt to help Donald Trump unlawfully secure a professional advantage — the presidency,” so would likely suffice. Id. The dissent’s position, in any event, ignores the fact that it can be “corrupt” to obstruct an official proceeding for the purpose of gaining a personal, social, or political favor. See United States v. Brenson, 104 F.3d 1267, 1273–81 (11th Cir. 1997) (affirming defendant’s conviction under 18 U.S.C. § 1503 where he disclosed details of a grand jury investigation to its target in order to get a date with the target’s daughter).

In her opinion, Henderson seems to suggest that securing the presidency corruptly for Trump wouldn’t necessarily be a professional benefit for Trump.

18 The “unlawful benefit” the defendant seeks must be financial, professional or exculpatory. See, e.g., Marinello, 138 S. Ct. at 1105 (avoiding taxes); Aguilar, 515 U.S. at 595 (concealing wrongdoing through illegal disclosure of wiretap); North, 910 F.2d at 851 (fabricating false testimony and destroying documents); see also Corruptly (def. 2), Black’s Law Dictionary (11th ed. 2019) (“corruptly usu[ally] indicates a wrongful desire for pecuniary gain or other advantage”). Acquittal is thus required if, as I view the evidence, Robertson merely intended to protest the outcome of the election or his (perceived) disenfranchisement or to make some other political point. The majority mistakenly insists that my view conflicts with Judge Walker’s Fischer opinion. Maj. Op. 37–38.

On the contrary, Judge Walker did not decide how broadly to construe the “unlawful benefit” requirement. He merely stated that he was “not so sure” that the sought-after benefit must be “financial, professional, or exculpatory.” Fischer, 15 64 F.4th at 356 n.5 (Walker, J., concurring in part) (citation omitted). And even if this panel agreed with Judge Walker’s suggestion that the office of the President “may” qualify as “a professional benefit,” see id., we would remain free to conclude that there was no evidence presented at trial to show that Robertson intended—either alone or collectively—to procure that benefit. [my emphasis]

None of this matters.

The underlying Fischer decision has already been appealed. This will be appealed.

The biggest takeaway is that self-imagined conservatives keep reaching well beyond the decision before them to try to carve up obstruction in such a way that stealing an election is not corrupt.

Fani Willis Serves Up Cheese and Kraken

Update: As Harpie and others noted in comments, in the hour since I’ve been taping with Nicole Sandler, Kenneth Chesebro pled guilty to a felony in GA.

Hours after the first 450 jurors appeared at the Fulton County Courthouse to fill out a questionnaire ahead of an expected monthslong trial where he faced seven felony counts, Chesebro and his attorneys pleaded guilty to a single felony charge of conspiracy to commit filing false documents.

Chesebro’s deal includes five years of probation, $5,000 in restitution to the secretary of state’s office, 100 hours of community service, a letter of apology, an agreement to testify in future trials and to hand over remaining documents and text messages to the district attorney’s office.

Here’s the colloquy.


As the news of Sidney Powell’s cooperation plea broke yesterday, there were people asking who could have predicted that Powell — the Kraken! — had turned state’s witness.

I laid out why she might flip back when the Georgia indictment came out.

One way the Georgia and federal indictments will interact is in the relative pressure between already being charged, in a state with strict pardon rules, and being not-yet charged, in a venue where Trump has pardoned his way out of criminal trouble in the past.

Five people are named as co-conspirators in both: Rudy (CC1 in the federal indictment), John Eastman (CC2), Powell (CC3), Jeffrey Clark (CC4) and Ken Chesebro (CC5).

Some of these people, like Sidney Powell, Trump might not consider pardoning in any case. Plus, Trump’s closest associates have spent the last week or so throwing her under the bus. But thus far at least, Powell’s personal legal risk is far greater in Georgia than federally.

Others, though, may think seriously about how much harder it would be to get a pardon for Georgia than a Federal indictment, where the next Republican President, possibly including Donald Trump, would be able to pardon them.

For Powell, more than anyone else, flipping was a wise option. She’s one of the five people charged in Georgia also described as co-conspirators in Jack Smith’s indictment (Boris Epshteyn is believed to be co-conspirator#6 in DC, but is being subpoenaed as a witness in Georgia).

All five are likely aware that loyalty in DC, which might win them a pardon if Trump wins in 2024, won’t save them in Georgia, where pardons are much harder to come by.

After Judge Scott McAfee rejected a Powell bid to dismiss the non-RICO charges against her, the decision to flip likely became a lot easier. The hacking charges with which she was charged were the most serious free-standing charges in the Georgia indictment.

Irrespective of what happens in DC, Powell traded cooperation and six years of probation — with the possibility of having the charges expunged — to avoid the possibility of serious state prison time that Trump couldn’t pardon away.

In any case, Powell is not among the insiders Trump would be quickest to pardon.

One thing about the decision: in spite of all the TV lawyers claiming she’ll make a terrible witness because she’s so batshit, this was an eminently rational decision. She sounded absolutely sane in yesterday’s plea hearing, as I imagine she did when he provided her videotaped testimony before pleading.

As to the question of whether that means Powell would cooperate in DC, it’s worth noting that we can’t even be sure we would know if she were cooperating. After all, few people covering the case account for the part of the investigation into Sidney Powell — for fundraising only tangentially related to any conspiracy with Trump — that was overt over two years ago, or the fact that Michael Flynn and Patrick Byrne had already underbussed her at that point. No one knows the full details about why she spent money raised in that fundraiser to fund the defense of people on the Oath Keepers (and probably others).

More importantly, those trying to imagine how her cooperation would impact Trump seem to imagine that we  understand the entire nature of any such cooperation. As I noted in August, the indictment actually includes Powell for just one purpose: to prove that Trump took advice from someone he was publicly identifying as crazy.

[H]er role — as described — is actually very limited. Just one paragraph describes her actions:

20. On November 16, 2020, on the Defendant’s behalf, his executive assistant sent Co-Conspirator 3 and others a document containing bullet points critical of a certain voting machine company, writing, “See attached – Please include as is, or almost as is, in lawsuit.” Co-Conspirator 3 responded nine minutes later, writing, “IT MUST GO IN ALL SUITS IN GA AND PA IMMEDIATELY WITH A FRAUD CLAIM THAT REQUIRES THE ENTIRE ELECTION TO BE SET ASIDE in those states and machines impounded for non-partisan professional inspection.” On November 25, Co-Conspirator 3 filed a lawsuit against the Governor of Georgia falsely alleging “massive election fraud” accomplished through the voting machine company’s election software and hardware. Before the lawsuit was even filed, the Defendant retweeted a post promoting it. The Defendant did this despite the fact that when he had discussed Co-Conspirator 3’s far-fetched public claims regarding the voting machine company in private with advisors, the Defendant had conceded that they were unsupported and that Co-Conspirator 3 sounded “crazy.” Co-Conspirator 3’s Georgia lawsuit was dismissed on December 7.

Go back and look! Her most famous role — when she got cleared into the White House and told Trump he should make her Special Counsel and seize the voting machines — doesn’t appear at all. Indeed, my greatest disappointment with the indictment is that it doesn’t explain one of the enduring mysteries of January 6: what led Trump to adopt January 6 as his plan shortly after that meeting.

It describes Trump’s December 19 tweet — the tweet that triggered thousands of MAGAts to start planning a trip to DC — but not what led up to it.

Curse you, Jack Smith!!!

Aside from proving he knowingly lied, the indictment doesn’t really tell us why Powell plays such a central part of the case against Trump.

There are, however, two details that I think are being missed: First, Powell played a key role in Fox’s platforming of propaganda, as laid out in the Dominion lawsuit (after the Fox settlement, Dominion’s lawsuit against Powell moved into a more active phase).

Fox brought her on and off the campaign, and had a role in her conspiracy theories.

And while Powell appeared on Fox only four times when she was even arguably part of the President’s team, and six times when Fox was clearly aware that she was not. As important, Fox was instrumental in maneuvering Powell both into the Trump campaign and then out of it.

Third, Fox ignores its own role in developing the conspiracy theories it then aired See Dom. MSJ pp.39-44

These two claims — that Fox “maneuvered Powell … out of” the Trump campaign and that they played a role in developing these conspiracy theories, are discussed in heavily redacted passages of the earlier filing (probably redacted because Fox has claimed it pertains to internal business deliberations).

The first — describing how Fox “maneuvered Powell … out of” the Trump campaign after Tucker came under fire for questioning Powell — consists of almost four full paragraphs introduced with a description that Fox, including Tucker and Raj Shah, “mobilized.”

“We won the battle with Powell. Thank god,” the passage quotes a Tucker text later. Dominion is now explaining that that “battle” pertained to getting Powell ousted from Trump’s orbit.

The second claim — that Fox was the source of some of these conspiracy theories — incorporates the description of how Fox got Powell ousted from the campaign, but also includes redacted passages describing Lou Dobbs’ role in “promoting the narrative,” another making a redacted reference to Hannity, as well as the unredacted reference to Bartiromo chasing an email from Sidney Powell that Powell herself said relied on a “wackadoodle” source. The later filing suggests the earlier filing goes as far as saying that Fox played part in developing the conspiracy theories.

That includes a December 10 Lou Dobbs appearance in which Powell claimed there had been a cyber Pearl Harbor that undermined the vote.

Nonetheless, on the next day, December 10, Dobbs had Powell on again, where she repeated the false (and repeatedly debunked) story about the Smartmatic and Dominion machines being designed to flip votes to rig elections for Hugo Chavez,and allowing people to login and manipulate votes . See ¶179(q );Appendix D. But rather than questioning Powell’s claims, Dobbs attacked Attorney General Barr for saying he’d seen no sign of any significant fraud that would overturn the election and told Powell “We will gladly put forward your evidence that supports your claim that this was a Cyber Pearl Harbor,” noting “we have tremendous evidence already,” id. which he now admits was not true. See Ex.111,Dobbs 46:25-47:10,86:20-24 . Dobbs had seen no evidence from Powell, nor has he since. Id.

Powell had sent her claims about a “Cyber Pearl Harbor” to Dobbs (who forwarded to his team) in advance of the show. Ex.450;Ex.451. Prior to the show, Dobbs published a tweet to the @loudobbs Twitter account with the claim that “The 2020 Election is a cyber Pearl Harbor,” and embedding the very document Powell had sent to him just hours before which stated that Dominion was one off our entities that had “executed an electoral 9-11 against the United States” and “a cyber Pearl Harbor,” that “there is an embedded controller in every Dominion machine,” and that they had “contracts ,program details, incriminating information ,and history” proving these claims.¶179(p); Appendix D.

Later the same day, after Powell appeared on the 5pm broadcast and before the 7pm unedited rebroadcast of the show, Dobbs again tweeted “Cyber Pearl Harbor @SidneyPowell reveals groundbreaking new evidence indicating our Presidential election came under massive cyber-attack orchestrated with the help of Dominion, Smartmatic, and foreign adversaries.” ¶179(r); Appendix D. Dobbs conceded at his deposition that this tweet was false Powell had not presented any such evidence on his program that day. Ex.111,Dobbs 269 :2-271:5.

Claims like that were the basis not just of Powell’s lawsuits that provided Trump cover that the election remained undecided, but also of Powell’s sustained effort to obtain Dominion data from swing states, the crime to which she just pled guilty. It was tied to a bid for Trump to use Commander-in-Chief authorities to steal the election.

The Georgia indictment claims that crime started on December 1, 2020 and lasted at least through April 2021.

Indeed, the way in which this pursuit of data was a continuation of and continued after January 6 is one of the most chilling parts of Anna Bower’s account of it. Bower first lays out good reason to suspect that Cathy Latham — another of the charged co-conspirators in the Georgia indictment — was in the Willard Hotel consulting with people like Bernie Kerik.

On Dec. 17, Marilyn Marks, the executive director of Coalition for Good Governance—the election security organization that initiated the Curling suit—texted Latham. Through the election activism grapevine, Marks had heard about the supposed problems with Dominion machines in Coffee, she said in an interview with Lawfare. Something sounded “suspicious” about it all, she said, but she wanted to learn more. She spoke with elections board member Chaney, who suggested that she get in touch with Latham.

Marks texted the GOP chairwoman, explaining that her organization was involved in litigation to move away from the use of Dominion systems in Georgia. Marks asked when Latham might be available to chat. Latham replied: “I am in D.C. right now and am about to meet with IT guys.”

Latham would later admit under oath that she visited D.C. for an unspecified period sometime in December. But she did not confirm the reason she gave at the time. In her deposition, rather, she claimed that she traveled to the capital city because she had been invited to go on a “tour” by a woman named Juliana Thompson, because Latham hadn’t been able to go the previous year.

“We [got] to see the Christmas trees, and I got to go to the Bible Museum,” she explained.

When asked if she met with anyone who was not with the D.C. tour group, Latham replied, “I’m going to plead the Fifth on that.”

But if Latham was in D.C. only to tour the Museum of the Bible and see Christmas trees, why did she tell Marks that she was “about to meet with IT guys”?

And Latham did admit in her deposition that she stayed at the Willard Hotel during her trip.

“That’s where I slept,” she said.

If the Willard Hotel rings a Jan. 6 bell, that’s because it served as the “command center” for the legal arm of the Trump campaign led by Giuliani in this period of time. The rooms were organized and paid for by Bernie Kerik, the former police commissioner of New York City, who worked for the Giuliani legal team as an investigator. Kerik later sought reimbursement for the rooms from the Trump campaign.

According to his testimony before the select committee, Kerik paid for the room of an unnamed “whistleblower” from Georgia who traveled to the Willard to meet with Giuliani sometime during the post-election period. The “whistleblower,” he said, had been brought to the hotel by William Ligon, a Georgia state senator, and an Atlanta-area attorney named Preston Haliburton. He did not specifically identify the whistleblower by name.

That said, later that month, on Dec. 30, Latham appeared alongside Giuliani and other Trump surrogates at a legislative hearing chaired by Ligon. At that hearing, Latham claimed “whistleblower” status as she testified about the alleged “problems” with Dominion Voting Systems machines that led Coffee County to refuse to certify its machine recount results. Haliburton, who was listed as “counsel of record for the Giuliani legal team,” also represented Latham at the hearing.

Latham, in her Curling deposition, denied that she had ever visited the Willard with Haliburton.

As Bower lays out, minutes after Trump called off the riot on January 6, the Coffee County caper — the crime to which both Powell and bail bondsman and David Bossie brother-in-law Scott Hall have already pled guilty — went into motion.

At 4:17 p.m. on Jan. 6, 2021, the president of the United States belatedly tweeted out his video message to the mob that had forcibly disrupted the counting of electoral votes. “You have to go home now,” he finally said.

But even as Giuliani was keeping up pressure on senators to “slow it down,” Coffee County officials were undeterred.

Nine minutes after the president’s tweet, at 4:26 p.m. that afternoon, Hampton sent a text to Chaney: “Scott Hall is on the phone with Cathy about wanting to come scan our ballots from the general election like we talked about the other day,” she wrote.

The next morning, on Jan. 7, Latham texted Hampton to tell her that the SullivanStrickler forensics team had departed Atlanta and were on their way to Coffee County. Hall, she added, was flying in, too. “Yay!!!!” Hampton responded. These events are also mentioned in Acts 142-143 of Count 1 of the Fulton County indictment.

Several minutes later, Paul Maggio, the chief operations officer of SullivanStrickler, sent an email to Powell, Logan, Penrose, and others. “We are on our way to Coffee County Georgia to collect what we can from the Election / Voting machines and systems,” he wrote, attaching an invoice for SullivanStrickler’s $26,000 retainer fee. The invoice billed Powell’s PAC, Defending the Republic.

This may be what Rudy was pointing to when he was pleading with Members of Congress to just buy some days.

It may also be why people like Kerik have been underbussing Powell: because they want to blame her for the plans that continued even after the attack on the Capitol.

I don’t know whether Powell will or even if she already has flipped federally.

What I’m more confident about, though, is that if she did, she’d offer testimony about things that are not widely understood, if at all.

Stan Woodward Blows Off Any Duty of Loyalty to His Former Client

I noted yesterday that the government claimed that Stan Woodward had conceded he had a duty of loyalty to Yuscil Taveras that would limit what he could do in an eventual trial of Walt Nauta.

In his own response, however, Woodward makes no mention of any duty of loyalty to a former client. Instead, he engages in a great deal of word games to suggest precedents don’t apply to what he repeatedly describes as “[very] limited” representation of Taveras.

Instead, the Special Counsel’s Office seeks to micromanage defense counsel’s handling of any potential conflict arising from the trial testimony of a witness, which such witness benefited from limited former representation, no ongoing dual representation, no indication of conflict resulting from the representation itself, no indication of attorney-client privileged information at issue, and no occasion for crossexamination by the counsel in question (as co-counsel is available for the same).2

[snip]

[T]he very limited representation of an individual whom the Special Counsel’s Office wished to question in relation to a matter that later developed into a criminal prosecution of another client.

It’s a ploy used in Woodward’s surreply, as well.

The case at bar – involving limited former representation, no ongoing joint representation, no indication of conflict resulting from the representation itself, no indication of attorney-client privileged information at issue, and no occasion for cross-examination by the counsel in question (as other counsel is available for same) – is entirely incompatible with these cases and demonstrates the insubstantiality of the Special Counsel’s Office’s present use of a conflict rationale.

Even if it were the case that clients weren’t entitled to privilege if a representation was limited in time or scope, it ignores a very crucial detail of this case.

DOJ told Woodward he had a potential conflict before Taveras testified to the grand jury in March, where he denied knowing about the attempt to delete surveillance video.

In February and March 2023, the Government informed Mr. Woodward, orally and in writing, that his concurrent representation of Trump Employee 4 and Nauta raised a potential conflict of interest. The Government specifically informed Mr. Woodward that the Government believed Trump Employee 4 had information that would incriminate Nauta. Mr. Woodward informed the Government that he was unaware of any testimony that Trump Employee 4 would give that would incriminate Nauta and had advised Trump Employee 4 and Nauta of the Government’s position about a possible conflict. According to Mr. Woodward, he did not have reason to believe his concurrent representation of Trump Employee 4 and Nauta raised a conflict of interest.

The only way this representation would be so limited would be if Woodward did nothing to figure out what kind of legal exposure Taveras was facing in his March grand jury appearance.

Woodward continued to deny his representation of both Nauta and Taveras created a conflict even after DOJ gave Taveras a target letter — in part because he had advised Taveras that if he wanted to cooperate, he could get a different lawyer.

[T]he government provides no information to support their claim that [Taveras] has provided false testimony to the grand jury. While counsel does not preclude that the government may have provided more information to the Court ex parte, the government’s current representation that [Taveras] has clearly presented false or conflicting information to the grand jury is wholly unsupported by any information available to counsel. Further, even if [Taveras] did provide conflicting information to the grand jury such that could expose him to criminal charges, he has other recourse besides reaching a plea bargain with the government. Namely, he can go to trial with the presumption of innocence and fight the charges as against him. If [Taveras] wishes to become a cooperating government witness, he has already been advised he may do so at any time.

[snip]

Ultimately, [Taveras] has been advised by counsel that he may, at any time, seek new counsel, and that includes if he ultimately decided he wanted to cooperate with the government.

Woodward seems to suggest that Taveras has waived his privilege because he told prosecutors what advice Woodward had given him.

Because it appears that the Special Counsel’s Office well knows what was disclosed to defense counsel by Trump Employee 4, the Special Counsel’s Office cannot maintain its position that the revelation of the same is barred. Put differently, the assertion of the Special Counsel’s Office of a presumption of continuing privilege in this context, where the Special Counsel’s Office sought and obtained new counsel for Trump Employee 4 for the purpose of providing a means for Trump Employee 4’s testimony to change, and for his prior assertions to be explained by him—all of which was done not in the District where this case is pending, but in a faraway District, raising separate issues of grand jury misconduct—warrants development of the record at a hearing so as to ascertain to what extent any applicable privilege has been waived by Trump Employee 4’s disclosures to the Special Counsel’s Office. At a minimum, if the Special Counsel’s Office persists in asserting that privileged information remains, an evidentiary hearing is warranted as to what the Special Counsel’s Office is withholding regarding Trump Employee 4, his claims as to prior representation, and whether there has been any failure to disclose such matters to the Special Counsel’s Office.

Here, Woodward fashions privilege to consist only of confidentiality, not loyalty. And he suggests that because Taveras has shown some kind of disloyalty to him, he doesn’t owe any back.

In the filing, Woodward makes an oblique reference to Beryl Howell’s ruling finding Evan Corcoran’s advice to Trump to be crime-fraud excepted (though as he always does, he calls the underlying grand jury investigation in this very case a “faraway” District).

[I]t is noteworthy that in the United States District Court for the District of Columbia the Special Counsel’s Office has taken precisely the opposite position with respect to privileged communications. Specifically, in that District, the Special Counsel’s Office took the position that where a witness represented by counsel in a government compliance matter is not forthcoming with their counsel, a crime-fraud exception applies, voiding the attorney-client privilege. While Mr. Nauta vehemently opposes any application of the crime-fraud rulings made in a faraway District to this case, it is nevertheless impermissible for the Special Counsel’s Office to tailor the positions it takes before courts and/or grand juries in the various Districts where it seeks an advantage in its prosecution of former President Trump and his coconspirators.

This appears to be an attempt to liken Trump’s affirmative lies to Corcoran to Taveras’ own communications with him.

But, particularly with the demand for a hearing to find out what Taveras has told SCO about Woodward’s advice to him, it comes off as flopsweat about his, Woodward’s, own conduct.

Release the Kraken: Sidney Powell Pleading Guilty

Sidney Powell is pleading guilty to six counts of conspiring to interfere with election administration in Fulton County. These will be misdemeanors treated under the First Offender Act. She will be sentenced to six years of probation.

She is required to testify against any and all co-defendants in the case.

Stan Woodward Reportedly Concedes a Duty of Loyalty But Doesn’t Want His Name Used at Trial

In this post, I pointed out what all the coverage of the Garcia hearing last week missed: The prior briefing had been about whether to hold a Garcia hearing. It wasn’t about what to include in the briefing, which should all stem from ethical conflict rules.

On Monday, Judge Aileen Cannon (while blaming the Special Counsel’s Office) ordered that briefing.

In SCO’s submission in response, they clearly laid out not just that they had established the reason why Stan Woodward couldn’t cross-examine a former client, but that they had laid that out from their initial briefing — over two months ago, they observe — on the Garcia hearing: it arises from the Bar rules in both Florida and DC.

As the Government stated in its initial motion for a Garcia hearing, filed more than two months ago, “[a]n attorney’s cross-examination of a current or former client presents a conflict of interest.” ECF No. 97, at 6. Nor can Mr. Woodward otherwise seek to discredit Trump Employee 4 at trial, including in closing arguments.

And this time around they did what they should have been prepared to do at last week’s hearing: Cite 11th Circuit precedent.

Under the Florida ethics rules, “attorneys generally owe duties of confidentiality and loyalty to former clients.” Med. & Chiropractic Clinic, Inc. v. Oppenheim, 981 F.3d 983, 990 (11th Cir. 2020); see Fla. Bar R. Prof’l Conduct 4-1.9. These duties both come into play when, as here, a former client testifies at trial against a current client in a substantially related matter. During cross-examination, the attorney might “improperly” use the prior client’s confidential information or, alternatively, hold back from “intense probing” to avoid using those confidences. United States v. Ross, 33 F.3d 1507, 1523 (11th Cir. 1994). When the subject matters of the representations are substantially related, “the court will irrebutably presume that relevant confidential information was disclosed during the former period of representation.” Freund v. Butterworth, 165 F.3d 839, 859 (11th Cir. 1999). And given the duty of loyalty, a lawyer cross-examining a client, including a former client, faces “an impossible choice: [the attorney] can either vigorously cross-examine the client-turned-witness and thereby violate his duty of loyalty to the client on the witness stand, or he can temper his cross-examination and risk violating his duty of loyalty to the client on trial.” United States v. Almeida, 341 F.3d 1318, 1323 & n.17 (11th Cir. 2003). [my emphasis]

In its filing, SCO accuses Woodward of denying his ethical obligations to a former client at the contentious hearing last week, then lays out Florida precedent establishing it.

At the hearing on October 12, 2023, Mr. Woodward disputed that he had a duty of loyalty to his former clients, referring to “my hypothetical duty of loyalty to a former client, which again we dispute that duty even exists.” 10/12/2023 Hearing Tr. at 19. Similarly, when the Government conferred with Mr. Woodward in connection with this filing on October 17, 2023, Mr. Woodward continued to question whether he owes an ongoing duty of loyalty to Trump Employee 4. There is no basis for dispute: “a duty of loyalty exists apart and distinct from the duty to maintain client confidences.” United States v. Culp, 934 F. Supp. 394, 398 (M.D. Fla. 1996). Indeed, although Mr. Woodward and Mr. Irving have agreed to have another attorney conduct the cross-examination of their clients, courts frequently disqualify attorneys even where the attorneys propose that another attorney will conduct the cross-examination of a former client. See, e.g., United States v. Cordoba, No. 12-CR-20157, 2013 WL 5741834, at *12 (S.D. Fla. Oct. 17, 2013); Delorme, 2009 WL 33836, at *7; United States v. Miranda, 936 F. Supp. 945, 952 (S.D. Fla. 1996); United States v. Perez, 694 F. Supp. 854, 858 (S.D. Fla. 1988). Consistent with these authorities, Mr. Woodward acknowledged today that his ethical obligations to Trump Employee 4 and Witness 1 may constrain his ability to discredit those clients at trial, including during closing arguments. [my emphasis]

Importantly, the full context — at the hearing — of Woodward’s suggestion that he does not owe Taveras any duty of loyalty pertained to moving to strike Taveras’ testimony.

I am not certainly prepared to advise Mr. Nauta if he is prepared to proceed with a trial in which he doesn’t know what role his principal choice of counsel can play because, again, in the case law cited by the Government this isn’t limited to summation. The Government used summation as an example, but would I also be precluded from filing a motion to strike Trump Employee 4’s testimony because that potentially implicates his credibility, or my hypothetical duty of loyalty to a former client, which again we dispute that that duty actually exists. [my emphasis]

Those citations SCO provided of instances where courts have disqualified attorneys entirely may be why — at least per SCO’s representation, though we shall see whether he actually says that in his own filing — Woodward conceded he may not be able to close on Taveras. He still seems committed to remaining in this impossible position, largely incapable of defending Nauta against a key charge.

But Woodard is still dug in on one topic: About whether his name can be used in conjunction with Taveras’ testimony.

It is all but certain that Trump Employee 4’s testimony before the grand jury (while represented by Mr. Woodward) and his subsequent retraction and disavowal of that testimony will be subjects of cross-examination and redirect. The questioning may also encompass the fact that Trump Employee 4 was represented by Mr. Woodward at the time of his grand jury testimony, that Mr. Woodward’s legal fees were paid by a PAC controlled by defendant Donald J. Trump, and that Trump Employee 4 procured new counsel and quickly retracted his prior grand jury testimony. All of these facts will be relevant to Trump Employee 4’s testimony and may come out at trial.1

1 When the Government conferred with Mr. Woodward in connection with this filing, he asserted that his name should not come up during examination of Trump Employee 4, but he agreed that the other information referenced above could be relevant. [my emphasis]

I suspect SCO was trying to avoid making all this plain. I also suspect they pulled a great many punches (though that may have arisen from page limits). According to earlier filings, SCO warned Woodward about this conflict in early 2023, and he did nothing about it.

Woodward will file his response today as well. I expect it to be quite contentious.

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