Telling the Story of January 6 to the Judges Who Know It Best: The Two FBI Lawsuits

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There are a number of outlets tracking every legal challenge to Trump and Elon Musk’s power grabs. For example, JustSecurity has this litigation tracker, including the multiple suits (one, two, three, four, five, six, seven) that attempt to stop Elon’s invasion. Some may well succeed in enjoining Elon’s actions — but they’ll lead to a confrontation over who will enforce the orders.

Two lawsuits filed yesterday by FBI agents may be better vehicles both legally and in generating stories that might lead to pushback from Republicans. The first represents nine Jane and John Doe FBI personnel, fashions itself as a class action, and demands a jury trial; it has been assigned to Biden appointee Jia Cobb. It makes claims under the First Amendment, Fifth Amendment (and Fifth Amendment Privacy), and Privacy Act. It provides these details about how much the government spends to obtain the expertise of FBI agents.

13. FBI agents are chosen through a highly selective process, and are carefully screened for aptitude and trustworthiness.

14. FBI agents go through more than four months of intensive training at the FBI academy before beginning their duties, and attend numerous training sessions throughout their careers to adapt to new technologies and emerging threats.

15. Many FBI agents are multi-lingual and routinely interface with intelligence agencies from allied nations.

16. The training FBI agents receive is comprehensive, and in some instances, extremely expensive.

17. On information and belief, Plaintiffs assert that each agent of the FBI receives more than 3 million dollars-worth of training in a twenty (20) year career.

18. FBI agents also develop specific expertise from their assignments and field duties, much of which cannot be replicated solely by training.

The second represents seven Jane and John Doe FBI personnel, and the FBI Agent’s Association, which represents most active duty Agents; it has been assigned to the Trump appointee who presided over the Proud Boy leaders’ trial, Tim Kelly. Mark Zaid, a highly experienced lawyer in this field, is leading this suit. [Update: This case has been reassigned to Judge Cobb.]

This FBIAA suit makes two claims under the Privacy Act, a First Amendment, two Due Process claims, and this mandamus claim.

64. The provisions of 28 U.S.C. § 1361 provide a statutory basis for jurisdiction in cases seeking relief in the nature of mandamus against federal officers, employees, and agencies, and they provide for an independent cause of action in the absence of any other available remedies.

65. Defendants’ actions, as set forth above, constitute unlawful, intimidating, and threatening behavior towards Plaintiffs in response to Plaintiffs’ lawful actions of executing lawful search and arrest warrants and participating in lawful investigations of crimes committed by January 6 perpetrators.

66. Defendants do not have discretion to redefine the truth of January 6, 2021. Nor do Defendants have any discretion to recast the lawful actions taken by the FBI and the previous leaders within the Department of Justice as illegal, let alone any discretion to retaliate and disclose names.

67. Defendants have no discretion when it comes to ensuring the safety of the American people from extremist violence, let alone the safety of their own employees.

68. If no other remedy is available through which the unlawful termination orders may be rescinded, then Plaintiffs are entitled to relief in the nature of mandamus compelling Defendants to recognize Plaintiff to rescind the unlawful termination orders.

Both tell stories about Trump’s personal involvement in January 6 and describe a fear that lists of FBI Agents who worked on the January 6 cases will be used by those they investigated for retribution. The second also cites multiple cases of Jan6ers — including Enrique Tarrio, over whose prosecution Judge Kelly presided — promising retribution. [Update: As noted, this case has been reassigned to Judge Cobb.]

The second suit — the FBIAA one — substantiates its description of the events of January 6 far better, relying on opinions written by the judges who’ll preside over this case, as in these two citations to the DC Circuit opinion in the January 6 Committee’s lawsuit to access Archives documents.

13. The events of January 6, 2021, and the activities leading up to the violence that ensued on the U.S. Capitol on that day, have been well documented by courts in this circuit. Specifically, “[o]n January 6, 2021, a mob professing support for then-President Trump violently attacked the United States Capitol in an effort to prevent a Joint Session of Congress from certifying the electoral college votes designating Joseph R. Biden the 46th President of the United States. The rampage left multiple people dead, injured more than 140 people, and inflicted millions of dollars in damage to the Capitol. Then-Vice President Pence, Senators, and Representatives were all forced to halt their constitutional duties and flee the House and Senate chambers for safety.” Trump v. Thompson, 20 F.4th 10, at 15-16 (D.C. Cir. 2021).

[snip]

19. “The events of January 6, 2021 marked the most significant assault on the Capitol since the War of 1812. The building was desecrated, blood was shed, and several individuals lost their lives. Approximately 140 law enforcement officers were injured, and one officer who had been attacked died the next day. In the aftermath, workers labored to sweep up broken glass, wipe away blood, and clean feces off the walls. Portions of the building’s historic architecture were damaged or destroyed.” Thompson, 20 F.4th at 19.

That’s not the only way the FBIAA suit foregrounds the way judges have approved of the January 6 investigation. It also describes how everything happened with the involvement of judges and much of the legal process for that went through DC.

21. Investigative efforts were centralized out of the District of Columbia federal district (“DDC”). Functionally, this meant that FBI agents swore out arrest warrant affidavits in front of DDC magistrate judges. Upon receipt and review of the sworn affidavit, DDC magistrate judges approved the FBI’s arrest warrant applications and provided a signed, lawful arrest warrant to the arresting FBI agent or FBI task force officer (local law enforcement detailed to the FBI) for execution.

22. In some instances, individuals were arrested pursuant to a grand jury indictment. In these cases, FBI agents testified in front of a federal grand jury under Fed. R. Crim P. 6. If the grand jury found probable cause based on the evidence presented, a supervising court would then issue a lawful arrest warrant for execution

23. Many of the perpetrators of the January 6 riots fled Washington, D.C., immediately after the carnage. Because of this, the FBI had to coordinate efforts across the country in order to amass evidence. This frequently entailed applying for search warrants under Fed. R. Crim. P. 41 in the district where the evidence was to be located. Again, the FBI applied for warrants via sworn affidavits presented to neutral and detached magistrate judges. In the context of search warrants for physical property (e.g., phones, clothes, stolen property), these lawful warrants were issued by a multitude of magistrate judges outside of DDC.

Every DC Judge has affirmed the import of these cases and the danger of the January 6 attack (though some have questioned the prosecution of so many trespassers). They’re all likely facing the same threats that these FBI agents are.

And they are being asked to preside over suits that pit the FBI agents who carried out this investigation against a DOJ led by Trump’s defense attorneys (including Pam Bondi, who was confirmed with the help of John Fetterman but no other Democrats yesterday).

The Mandamus requested by the FBIAA suit is a big ask — the Privacy Act violations in both suits are more likely to work. But the judges in question are likely to agree that, “Defendants do not have discretion to redefine the truth of January 6, 2021.”

According to Ken Dilanian, the FBI did turn over a list of the people involved in the January 6 investigation, though provided employee ID numbers in lieu of names.

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Trump Preparing to Fire FBI Agents Who Treated a Violent Attack on Congress as a Crime

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Emil Bove, the Trump defense attorney who is serving as the Acting Deputy Attorney General until Trump installs another of his defense attorneys in the post, is preparing to purge up to 6,000 FBI Agents who participated in the investigation into the crime scene on January 6.

Bulwark has a good summary and links to other coverage.

Emil Bove, Trump’s former defense lawyer, who is now acting deputy attorney general and in charge of the Justice Department, ordered the removal of at least six top FBI career executives. Bove also requested the names of all FBI agents who worked on January 6th cases.

[snip]

Over the weekend, in a blizzard of activity (helpful reporting can be found here, and here, and here), FBI officials moved to resist the attempted coup.

Though he had carried out the order to decapitate the bureau’s top executives the day before, on Friday acting FBI Director Brian Driscoll reportedly refused to agree to fire certain agents involved with January 6th cases, and was trying to block a mass purge of such agents. In a message to staff Saturday, Driscoll reminded FBI agents of their rights to “due process and review in accordance with existing policy and law,” and emphasized “That process and our intent to follow it have not changed.”

The FBI Agents Association sent a memo to employees over the weekend to remind them of their civil service protections. The memo urged them not to resign or to offer to resign, and recommended that agents respond to one question in the survey they’ve been instructed to answer: “I have been told I am ‘required to respond’ to this survey, without being afforded appropriate time to research my answers, speak with others, speak with counsel or other representation.”

And in a remarkable letter, obtained by The Bulwark, the president of the Society of Former FBI Agents—a group that seeks to stay out of politics—said the following:

The obvious disruption to FBI operations cannot be overstated with the forced retirement of the Director, Deputy Director, and now all five Executive Assistant Directors. Add in the immediate removal of a number of SACs [Special Agents in Charge] and the requests for lists of investigative personnel assigned to specific investigations and you know from your experience that extreme disruption is occurring to the FBI—at a time when the terrorist threat around the world has never been greater.

Then on Sunday the top agent at the FBI’s New York field office, James Dennehy, wrote in an email to his staff: “Today, we find ourselves in the middle of a battle of our own, as good people are being walked out of the F.B.I. and others are being targeted because they did their jobs in accordance with the law and F.B.I. policy. . . . Time for me to dig in.”

What no one is saying in their coverage, however, is that Trump — through Bove — is effectively trying to remove thousands of FBI Agents because they treated a violent attack on the Capitol, one that put Members of Congress at real risk (as the video of Chuck Grassley fleeing, which Kyle Cheney first discovered, shows).

This mob wasn’t just coming after Mike Pence and Nancy Pelosi (and AOC) by name. They were also coming after Mitch McConnell by name. As I’ve shown, Ryan Nichols was calling to drag every member of Congress who certified Joe Biden’s win, which includes Grassley, Lindsey Graham, and John Cornyn.

Trump is trying to make it a firing offense for the FBI to investigate people — including some adjudged terrorists — who attacked a co-equal branch of government.

And thus far, Senators who could stop it have done nothing.

Purging these agents will not just devastate the FBI workforce, throwing away decades of expertise. But it will also send a message that Trump can sic a mob on Congress with no response from law enforcement.

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How Senate Judiciary Committee Dems Fucked Up the Kash Patel Nomination Hearing

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I have always said I think it likely Kash Patel will be confirmed. But that shouldn’t have made yesterday’s confirmation hearing pointless. Democrats did that on their own, though a combination of inadequate preparation and absence of leadership.

Dems tried to demonstrate Kash’s manifest lack of fitness for the job in three ways:

  • Pointing to all the attacks on law enforcement he made on random podcasts
  • Probing his role in disseminating the January 6 choir
  • Dancing around his invocation of the Fifth in the Jack Smith investigation

Pointing to all the attacks on law enforcement he made on random podcasts

Kash dealt with the first line of attack — his incendiary comments on social media — by claiming that his comments were taken out of context.

The only time such claims made any sense, when he tried to spin his complaints about the January 6 response, should have led to detailed follow-up of all the ways his testimony conflicts with every other witness on January 6. Kash even, yesterday, doubled the number of National Guard he claims Trump authorized, a claim that is debunked by the testimony of multiple pro-Trump witnesses. And even if his claims were true (he blames and blamed Ryan McCarthy for the delay in Guard response on January 6) means that his own leadership was faulty. At the very least, committee Democrats should have asked whether he was implicated in Barry Loudermilk’s insinuation that the failure to deploy the Guard was contemptuous.

Similarly, when Kash disclaimed remembering far right podcast host Stew Peters and Dick Durbin noted that Kash had appeared on the show eight times, Durbin should have followed up and asked what kind of compromise such promiscuity could cause an FBI Director.

Probing his role in disseminating the January 6 choir

There were many questions about Kash’s role in promoting the January 6 choir — but in spite of a conflict with Adam Schiff over the meaning of “we,” no one ever got Kash explain who did do the rest (though Adam Schiff did state that Kash had done no due diligence before pushing the video).

This matters, because some of Kash’s buddies (including conspiracy theorist Julie Kelly) routinely make false claims about rioters, and finding the source of Kash’s false claims is important to his warped reality going forward.

But the entire thrust of these questions was hampered by the point I made here and here: they relied on a superficial understanding, based off press releases rather than court dockets, of who these people were.

Schiff asked Kash if he promoted a video showing assailants attacking FBI agents, would it make him unfit to be Director. Why not, then, focus directly on the gun that Barton Shively grabbed when probation officers showed up, precisely the kind of thing that has gotten FBI agents killed in recent years.

And if you want to persuade — or at least, embarrass — your Republican colleagues, why not make it clear that the violent rioters under discussion didn’t just attack cops, but they threatened to drag people like Chuck Grassley and Lindsey Graham through the streets? Kash didn’t just promote people who attacked cops, he promoted people who wanted to attack members of the Committee.

Dancing around his invocation of the Fifth in the Jack Smith investigation

It’s on Kash’s invocation of the Fifth that I’m most upset, because Democrats may have forfeited the opportunity to make this a scandal going forward.

It started strongly enough. Cory Booker first raised it, and got Kash to claim he wanted his grand jury testimony released, after which Booker tried — but failed — to get Kash to elaborate on his testimony. Later, Schiff returned to the question and asked whether he supported getting both his grand jury transcripts and any mention of him in Volume Two, which led to what were probably Kash’s angriest looks of the hearing.

But after that, in the second round, a number of senators returned to the issue, mangling the grand jury standard by falsely saying that if Kash consents to the release of the transcript it can be released, and focusing primarily on the transcript and not the report (the latter of which made his eyes bug out when Schiff raised it).

This is the kind of thing you need to coordinate! This is the kind of thing where the actual grand jury rules matter! This is the kind of thing where the McGann precedent matters! 

And this is the kind of thing that demanded a coordinated set of yes or no questions about Kash’s testimony, because yesterday’s hearing was the one opportunity Dems will ever have to force him to answer question about what he told the grand jury.

All the more so because, it appears, Dems haven’t done what they should have to make an issue of the report (I first described the import of it to this confirmation on January 13).

On Wednesday — literally the day before the hearing — Dems wrote a letter to Acting Attorney General James McHenry asking for the report. While the letter referenced Dick Durbin asking Pam Bondi about it buried on page 41 of her Questions for the Record, that question did not tie the request to the need to advise and consent on confirmations. Tuesday’s letter nevertheless pointed to that question to claim that Aileen Cannon should have known about it.

On January 23, 2025, the Committee issued a “Notice of Committee Nomination Hearing” for Mr. Patel, which is now scheduled for January 30, 2025. The Ranking Member of the Committee submitted on January 16, 2025, Questions for the Record (QFR) to Attorney General nominee Pamela Jo Bondi following her confirmation hearing, requesting that she commit to making Volume Two of the Special Counsel’s report available immediately for review to the Senate Judiciary Committee Chair, Ranking Member, or their designees.2

This formal request preceded an order issued several days later by a judge in the United States District Court for the Southern District of Florida that enjoined the Department from releasing or otherwise making available a redacted version of Volume Two of the Special Counsel’s report to the House and Senate Judiciary Committees. In the order, the judge erroneously stated that “[t]here is no record of an official request by members of Congress for in camera review of Volume II as proposed by the Department in this case,” despite the prior request which her order omits. The judge also concludes wrongly that the Department “identified no pending legislation on the subject or any legislative activity that could be aided, even indirectly, by dissemination of Volume II to the four specified members whom the Department believes should review Volume II now,” notwithstanding the Committee’s ongoing consideration of Mr. Patel and others’ nominations.3

2 Senate Judiciary Committee, Questions for the Record the Honorable Pamela Jo Bondi Nominee to be Attorney General of the United States, (Jan. 16, 2025), https://www.judiciary.senate.gov/imo/media/doc/2025-01-15_- _qfr_responses_-_bondi.pdf

3 United States v. Trump, No. 9:23-cr-80101, (S.D. Fla. Jan. 21, 2025) ECF No. 714 at 7; In addition, on January 13, 2025, Senator Dick Durbin, Ranking Member of the Senate Judiciary Committee and the other Democratic members of the Committee submitted a letter to then-Attorney General Merrick Garland “recogniz[ing[ the current injunction against the release of Special Counsel Smith’s report and related materials and reserv[ing] its right to request production of the report and relevant records at an appropriate future date.” Senate Judiciary Committee Letter Requesting Preservation of DOJ documents (Jan. 13, 2025), https://www.judiciary.senate.gov/imo/media/doc/Letter%20to%20DOJ%20on%20Records%20Preservation.pdf

This falls short of informing Cannon, however, and submitting an urgent request for the report in conjunction with this confirmation the day before the hearing is rather late, particularly since Grassley might try to push through the confirmation before the stated due date for the report, February 10 (which is still before Cannon’s injunction runs out).

Given Kash’s glare, I’m pretty confident that the report will suggest Kash prevaricated before the grand jury. I even suspect we’ll eventually get some semblance of the report (I also think DOJ’s efforts to fire everyone who might have a copy, on Friday, before they moved to dismiss the case against Walt Nauta and Carlos De Oliveira, on Monday, while a transparent attempt to prevent its release, may be inadequate to that effort).

I think that if the report comes out, it will become clear that the delay in releasing it served primarily to preserve Kash’s nomination chances. I think that it’s likely not to happen before he is confirmed, but I think if that happens after Kash’s confirmation, it can be made a key demonstration of the corruption inherent to Trump’s DOJ.

But Democrats have not done the things they needed to do to to make that a scandal.

Trump’s DOJ is involved in a cover-up as we speak, a cover-up designed to hide how the aspiring FBI Director was complicit in Trump’s efforts to retain classified documents in his insecure basement. But Democrats have not done what they need to do to impose a cost for that cover-up.

Kash disclaims the purge in process

Cory Booker was perhaps the bright spot of the day. In addition to first raising Kash’s role in the documents investigation, he got Kash to disclaim knowledge of a purge in process, in which at least six senior FBI agents were pushed out, during the hearing.

This is another thing that may be turned into a scandal going forward.

Compile this video

As this post makes clear, most of these Senators are quite proud of their testy confrontations with Kash. They’ve sent them out individually.

It’s not too late to make use of them. Democrats can and should put together three videos focused on each of these topics. Intersperse Kash’s claim to stand by cops with video of those he celebrated attacking them. Intersperse Kash’s disavowal of the Neo-Nazis he has been sidling up to with what he said on their shows. And make a video of all the times Kash claimed to want to release his testimony with a focus on the effort to cover it up.

Kash Patel is almost certainly going to be confirmed. And he will almost certainly be a catastrophic appointee. So Dems need to do far more than they did yesterday to impose a cost going forward on his pick — one that, especially, will make it easier to demonstrate the corruption of his installation.

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Mark Zuckerberg Agrees to Turn Meta [Back] into a Pogrom Machine

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According to WSJ, Meta has agreed to pay $25 million to lose the frivolous lawsuit Trump launched after Facebook exercised its prerogative under the First Amendment not to platform Trump’s insurrection anymore in 2021.

Meta Platforms has agreed to pay roughly $25 million to settle a 2021 lawsuit that President Trump brought against the company and its CEO after the social-media platform suspended his accounts following the attack on the U.S. Capitol that year, according to people familiar with the agreement.

Of that, $22 million will go toward a fund for Trump’s presidential library, with the rest going to legal fees and the other plaintiffs who signed on to the case. Meta won’t admit wrongdoing, the people said. Trump signed the settlement agreement Wednesday in the Oval Office.

A Meta spokesman confirmed the settlement.

[snip]

Trump’s Facebook and Instagram accounts were suspended in 2021 because of posts he made around Jan. 6, 2021, when a mob stormed the Capitol building. In the days leading up to the attack and on Jan. 6, he repeatedly used the platforms to make false claims that he won the 2020 election and alleged widespread election fraud that was denied by the administration’s top election-security experts and attorneys.

Zuckerberg, at the time, said the risks of the president’s using the social-media platforms during that period “are simply too great” and then paused the president’s accounts for two weeks. The pause was subsequently lengthened.

Most people — including Elizabeth Warren, in the WSJ story — are focusing on how this is effectively a bribe, a $22 million donation (on top of the earlier $1 million one) trading for regulatory favors. It is. Trump continues to engage in unprecedented corruption in plain sight.

But it is more than that. The concession of the settlement implies that Facebook should not have banned Trump for using their platform to incite an insurrection, though it admits no wrong-doing.

I have repeatedly argued that if Twitter, along with Facebook, had not shut down Trump’s account after January 6, there was a good chance that Joe Biden would never have been inaugurated.

Mark Zuckerberg’s capitulation makes it far less likely Meta will do the same thing — take action against Trump’s account to prevent him from stoking ongoing violence — again. It makes it virtually certain that Meta will not police inciteful content involving Trump without buy-in from the top, from Zuck.

And that, along with Meta’s earlier capitulations to Stephen Miller to rejigger its algorithms to allow transphobic and other dehumanizing speech — which experts predicted would lead to the kind of violence Facebook fostered in Myanmar — means that when Trump next uses these platforms to incite violence, he’s far less likely to be shut down.

Heck, John Roberts has even provided guidelines to Trump on how to ensure such incitement will be an official act and therefore immune from any future prosecution. Trump simply needs to involve his top aides — someone like Stephen Miller — in crafting a post, and Trump will be able to say that John Roberts told him that Trump never goes to prison for it.

Stephen Miller has, for some time, been laser focused on re-weaponizing social media. He is suspected to be the one who pitched Musk on bringing “the boss himself, if you’re up for that!” back onto Xitter.

Then, last summer, Miller attempted to intervene in Trump’s document case when Jack Smith asked Aileen Cannon to prevent Trump from falsely claiming the FBI tried to assassinate him because it issued routine use of force guidelines for the search of Mar-a-Lago. Miller argued that Trump’s false claims on social media about the FBI — earlier ones of which had already led to a violent attack on the FBI — were not incitement and constituted important speech for the election.

The only possible constitutional exception to free speech the government has identified is incitement. But it cannot rely on that exception to justify infringing President Trump’s rights. President Trump has not engaged in speech that “prepare[s] a group for violent action [or] steel[s] it to such action.” Brandenburg, 395 U.S. at 448. It cannot be said that by merely criticizing—or, even as some may argue, mischaracterizing—the government’s actions and intentions in executing a search warrant at his residence, President Trump is advocating for violence or lawlessness, let alone inciting imminent action. The government’s own exhibits prove the point. See generally ECF Nos. 592-1, 592-2. 592-3, 592-5. The government presents no evidence that President Trump advocated a violent attack or other lawless action against the Department of Justice, the FBI, President Biden, this Court, any witness, or any other person. Much less has the government proved a call to arms or any request, demand, instruction, or implication that supporters should violate any law.

And all this is happening after Trump pulled the security detail from several people — most notably Anthony Fauci and Mark Milley — who’ve long been targeted, the latter by Iranian terrorists as well as Trump’s people. Indeed, one of the attacks Smith focused on in his successful DC bid for a gag was Trump’s attack suggesting Milley should be executed.

This is not just about eliciting a bribe for regulatory favors. It is not just about winning an argument about actions taken four years ago to halt an insurrection in process.

The entire lawsuit is about an ongoing chilling effect. And Zuck’s capitulation is a capitulation to that chill, a soft commitment that the next time Trump uses social media to launch his mob against vulnerable targets like trans people or legal Haitian immigrants, against co-equal branches of government in Congress or the courts, or against his select targets like Milley, Meta will do nothing to slow the mob.

For years, Stephen Miller has been perfecting the use of social media to sow fascism. And he just cowed one of the richest men in the world to make it a more effective tool for fascism.

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A Summary of Kash Patel’s Disqualifications to Lead FBI

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I expect Kash Patel will be confirmed; I even expect that Democrats on the Senate Judiciary Committee will be utterly feckless in Kash’s confirmation hearing tomorrow.

Nevertheless I wanted to summarize his disqualifications.

Kash got where he is by substituting the Steele dossier for the real Russian investigation, which was instrumental in Trump’s success at minimizing the damage of one after another Trump associate lying about what really happened in 2016.

Kash gets a lot of credit for the Nunes Memo, with many right wingers claiming that the Horowitz Report vindicated it.

It didn’t. As I showed, both the Nunes Memo and the Schiff Memo got things right and got things wrong; mostly they just spoke past each other, which was fundamentally based on that substitution of the Steele dossier for the real Russian investigation.

Nevertheless, one of Kash’s lasting gripes (against Robert Hur) has to do with efforts to limit how much Kash was releasing at the time.

Kash did more than that as a House staffer, though. He continued to chase his conspiracy theories as Congress turned to criminalizing Hillary Clinton. He’s actually the staffer who asked the question that set up Michael Sussmann for a failed prosecution years later. He set up what would later become the Durham investigation — a four year effort to criminalize being victimized by a hostile nation-state.

And then, after Durham filed a wildly misleading court filing misrepresenting the discovery by some Georgia Tech researchers that someone was using a YotaPhone inside the Executive Office of the Presidency during the Obama term, Kash sent out a letter outright lying about the claims.

The whole thing is riddled with lies, but ultimately it amounts to a conflation of the Obama-era discovery with the discovery of the ties between a marketing server, Alfa Bank, and a Spectrum Health server. Kash’s letter was the final step before Trump jumped on the lies and called for Sussmann’s execution. Kash is a key cog in the way Trump has elicited threats against others.

Kash also paid a lot of former FBI agents who were disgruntled about having to investigate Trump supporters.

And when news of the discovery that boxes of documents that Trump had returned had classified documents in them, Kash invented a claim that Trump had declassified all those documents.

At least one Jack Smith witness — someone with the potty mouth of Eric Herschmann — disputes any claim there was a standing order to declassify documents. That witness described someone “unhinged” and “crazy” who first got access to the White House through the Member of Congress he worked for, who started the “declassified everything” claim when it first started appearing in the media, which is when Kash Patel made the claim.

Jack Smith described what happened next. When investigators subpoenaed Kash to test his claims that Trump had this standing order, Kash tried to delay compliance indefinitely by hiring a lawyer already busy defending a January 6 seditionist. When the aspiring FBI Director did first testify, Kash pled the Fifth repeatedly.

On Monday, September 19, 2022, the FBI personally served witness Kashyap “Kash” Patel with a grand jury subpoena, commanding him to appear on September 29, 2022. Prior to engaging with counsel, Patel contacted government counsel on Friday, September 23, 2022, to request a two-week extension. The government agreed to that extension and set his appearance for October 13, 2022. Thereafter, [Stan] Woodward contacted government counsel on September 27, 2022, explaining that he had just begun a lengthy jury trial–United States v. Rhodes et a., No. 22-cr-15 (D.D.C.)–but that Patel had retained him. On September 30, 2022, Woodward request an addition indefinite extension of Patel’s grand jury appearance until some point after the Rhodes trial concluded. (Ultimately, the verdict in the trial was not returned until November 29, 2022, approximately six weeks after Patel’s already-postponed appearance date of October 13, 2022.) The government was unwilling to consent to the indefinite extension that Woodward sought. Woodward, for his part, declined various alternatives offered by the government, including scheduling Patel’s grand jury appearance for Friday afternoons, when the Rhodes trial was not sitting, and a voluntary interview by prosecutors and agents over a weekend.

On October 7, 2022, Patel (through Woodward) filed a motion to quash his grand jury appearance, arguing that requiring Patel to appeal pursuant to the grand jury’s subpoena would violate his constitutional rights by depriving him of his counsel of choice, i.e., Woodward, who was occupied with a jury trial elsewhere in the courthouse. The Court denied the motion to quash on October 11, 2022, see In re Grand Jury No. 22-03 Subpoena 63-13, No. 22-gj-41, Minute Order (Oct. 11, 2022), and required Patel to appear as scheduled on October 13. See id. (“Mr Patel requests a delay of some unspecified time period in his testimony because his counsel, Stanley Woodward, will be engaged in the United States v. Rhodes trial, Case No. 22-cr-15, scheduled to last several weeks, with no promises as to when his counsel will still have time available. Mr. Patel retained Mr. Woodward on the attorney’s first day of jury selection in Rhodes when such circumstance made fully apparent that counsel would be unavailable during Mr. Patel’s scheduled grand jury testimony. In addition, the government has already demonstrated flexibility in meeting Patel’s scheduling needs . . . . Testifying before a grand jury is not a game of find-or-seek-a-better-time or catch-me-if-you-can, and a witness cannot indefinitely delay a proceeding based on his counsel’s convenience. . . .”).

Patel appeared before the grand jury on October 13, 2022, where he repeatedly declined to answer questions on the basis of the rights afforded to him by the Fifth Amendment. Thereafter, the government moved to compel Patel’s testimony. The Court granted the government’s motion to compel, contingent on the government offering statutory immunity. [my emphasis]

Aileen Cannon has buried any description of what Kash said when compelled to testify. This nomination should be held until any discussion of Patel in the Jack Smith report is released (but thus far Dick Durbin has shown no interest in doing so; DOJ just dropped their appeal).

But it should never be passed, because Kash is a menace. In his repeated efforts to falsely claim that January 6 defendants were treated any worse than any other mostly-violent pretrial detainees during the COVID period, he suggested that the people detained for assaulting cops were being mistreated.

As I have shown (and Bulwark did before me) Kash’s cheerleading for January 6 defendants amounts to arguing that someone accused of assaulting cops who grabs a gun when his probation officers show up should not then be jailed, nor should someone who directly threatened members of Congress, called on a mob to grab their weapons, and then assaulted cops.

Kash Patel will do and say anything to protect Trump and his flunkies — up to and including risking the safety of members of Congress.

Such a person would not serve as Director of FBI. He would serve as a means to turn government against Trump’s adversaries.

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Every DOJ Beat Journalist Fails to Mention a Dozen Judges Approved of 1512 Charge for January 6

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CNN didn’t mention it.

WSJ didn’t mention it. (Update: they now have.)

WaPo didn’t mention it (though it did break the news that Ed Martin says he’ll be appointed DC USAO). (Update: They’ve now added it.)

NBC didn’t mention it in a piece focusing on the firing of Trump investigators.

None of these outlets — among others — mentioned that every single DC District Judge approved the use of 18 USC 1512(c)(2) for January 6, and only Carl Nichols required that it include an evidentiary component (the stance ultimately adopted by SCOTUS).

  1. Dabney Friedrich, December 10, 2021, Sandlin*
  2. Amit Mehta, December 20, 2021, Caldwell*
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, Nordean; May 9, 2022, Hughes (by minute order), rejecting Miller
  5. Randolph Moss, December 28, 2021, Montgomery
  6. Beryl Howell, January 21, 2022, DeCarlo
  7. John Bates, February 1, 2022, McHugh; May 2, 2022 [on reconsideration]
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, Costianes; May 26, 2022, Fitzsimons (post-Miller)
  10. Christopher Cooper, February 25, 2022, Robertson
  11. Rudolph Contreras, announced March 8, released March 14, Andries
  12. Paul Friedman, March 19, Puma
  13. Thomas Hogan, March 30, Sargent (opinion forthcoming)
  14. Trevor McFadden, May 6, Hale-Cusanelli
  15. Royce Lamberth, May 25, Bingert

None of these outlets mentioned DC Circuit approved the application.

None mentioned that when SCOTUS required an evidentiary component, they left open the possibility that the fake elector certificates would justify the application.

DOJ just launched an investigation into prosecutors who applied a law in a way approved by over a dozen judges, at least four of them Trump appointees.

Update: On Xitter, an influential propagandist, Julie Kelly, wondered who first applied the 18 USC 1512(c)(2) statute, claiming that Matthew Graves, who is Black, was too stupid to have done so.

I guess she didn’t consider basic rules of physics, which say that a guy confirmed in October 2021 could not have made the decision to charge (just as one example) Proud Boys Nicholas Ochs and DeCarlo with 1512 on February 4, 2021.

Update: 18 USC 1512(c)(2) was charged at least as early as January 11, 2021, with Jacob Chansley. Ed Martin is going to have to investigate Donald Trump! (Or at the very least, Michael Sherwin. He does not want to investigate Michael Sherwin, trust me on this.)

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Kash Patel Thinks Assault Defendants Should Be Able to Grab for Guns When Probation Officers Arrive

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The press continues to largely ignore the work that Jack Smith did, including the footnote in his report where he noted Trump’s support for the Jan6 choir by listing the detention memos for a number of them.

As he did in his 4:17 p.m. and 6:01 p.m. Tweets on January 6, Mr. Trump has provided additional evidence of his intent by continuing to support and ally himself with the people who attacked the Capitol. He has called them “patriots” 135 and “hostaoes ” 136 reminisced about b ‘ January 6 as a “beautiful day,” 137 and championed the “January 6 Choir,” 138 a group of January 6 defendants who, because of their dangerousness, are detained at the District of Columbia jail. 139

139 See United States v. Nichols, No. 21-mj-29, ECF No. 9 (E.D. Tex. Jan. 25, 2021) (ordering pretrial detention in prosecution of defendant who later became a member of the “January 6 choir”); United States v. Nichols, No. 2 l-cr117, ECF No. 75 (D.D.C. Dec. 23, 2021) (denying defendant’s motion for pretrial release); id, ECF No. 307 at 27 n. IO, 35-36 (D.D.C. Apr. 30, 2024) (government sentencing memorandum referencing defendant’s involvement in “January 6 choir”); see also United States v. Mink, No. 21-mj-105, ECF No. 19 (W.D. Pa. Jan. 29, 2021) (in prosecution of defendant who later became a member of the “January 6 choir,” ordering defendant’s pretrial detention); United States v. 1vfink, No. 21-cr-25, ECF No. 45 (D.D.C. Dec. 13, 2021) (court order denying defendant’s motion to revoke pretrial detention); United States v. Sandlin, No. 21-mj-110, ECF No. 8 (D. Nev. Feb. 3, 2021) (ordering pretrial detention in prosecution of defendant who later became a member of the “January 6 choir”); United States v. Sandlin, No. 2 l-cr-88, ECF No. 31 (D.D.C. Apr. 13, 2021) (denying defendant’s motion for release on bond); id., ECF Nos. 44, 44-1 (D.D.C. Aug. 31, 2021) (mandate return following denial of defendant’s appeal of pretrial detention order); United States v. Shively, No. 21-cr-151, ECF No. 42 (D.D.C. May 9, 2022) (in prosecution of defendant who later became a member of the “January 6 choir,” revoking conditions of release and ordering pretrial detention); United States v. Khater, No. 21-cr-222, ECF No. 25 (D.D.C. May 12, 2021) (in prosecution of defendant who later became a member of the “January 6 choir,” denying defendant’s motion for release from custody); United States v. McGrew, No. 21-cr-398, ECF No. 40 (D.D.C. Nov. 2, 2021) (order of detention pending trial in prosecution of defendant who later became a member of the “January 6 choir”).

Bulwark is one laudable exception. In advance of his confirmation hearing, they did a post using the footnote to focus on Kash Patel’s role in boosting the video. They quote Patel saying, over and over, that the video represents how he boosted the video to “destroy the two-tier system of justice” seemingly applied to Jan6ers.

PATEL DISCUSSED HIS KEY ROLE in producing and promoting the J6 Prison Choir during a March 10, 2023 appearance on Steve Bannon’s War Room podcast. Patel announced that he was “exclusively” releasing for “the first time ever” the video for the choir’s song “Justice for All.”

“We all know the plight of the Jan. 6 prisoners and their families and how due process has been destroyed for so many of them,” Patel told Bannon. He then explained how he and others helped produce the song.

“We also know, or some of us know, that they sing, the Jan. 6 prisoners themselves sing, the national anthem every night for 700 straight plus nights from the jail themselves,” Patel said. He and others thought it “would be cool” if “we captured that audio” and mixed it with “the greatest president, President Donald J. Trump,” reciting the Pledge of Allegiance. “Then we went to a studio and recorded it, mastered it, and digitized it, and put it out as a song,” Patel added.

[snip]

As he went on to promote the song in the weeks that followed, Patel portrayed the J6 Prison Choir as victims of the U.S. justice system. “[‘Justice for All’] was a collaboration between like-minded Americans who wanted to keep the focus on helping to destroy the two-tier system of justice that is rotting America,” Gateway Pundit quoted Patel as saying in a March 21, 2023 post. Patel added that the “net profits” would be used “to financially assist as many Jan. 6 families as we can, and all families of nonviolent offenders will be considered.” (This raises a question: Given that the choir’s members included violent offenders, did any of them, or their families, receive any of the proceeds?)

That said, they relied only on press releases to describe those included in Jack Smith’s footnotes, not the dockets themselves (or better yet, video). I want to focus on a few of the cases to show what the aspiring FBI Director thinks constitutes a two-tier system of justice.

I want to start with one of the least obnoxious people who was in the DC Jail in March 2023, Barton Shively (CourtListener docket). A former Marine, he was originally arrested on January 19, 2021 for assaulting two cops; he would eventually plead guilty to striking one officer’s “hand, head and shoulder areas,” and grabbing another and yelling at him.

But like most others accused of assaulting cops with his own hands (as opposed to a weapon), he wasn’t jailed right away. He was released to home detention, and several times got revisions to his release condition (for example) to make sure he could continue to work and, in May 2022, so he could get treatment for newly diagnosed Hodgkins.

That changed in May 2022, when probation officers showed up and found him with a shotgun and a sword.

On or about May 4, 2022, U.S. probation officers from the Middle District of Pennsylvania conducted an unannounced home visit and found a shotgun, ammunition, knives, and a sword in the defendant’s residence. See Image 10 below. Significantly, the “butt” of that shotgun had a cloth sleeve which stated, “THREE PERCENTERS.”5 Given the nature and seriousness of the violations of his release conditions and his displayed lack of candor, both D.C. Pretrial Service Agency and the U.S. Probation Office for the Middle District of Pennsylvania, inter alia, requested the defendant be removed from all pretrial supervision programs. Based on that report, this Court ordered that a show-cause hearing be scheduled for May 9, 2022. On May 9, 2022, after a hearing regarding the violations, this Court ultimately revoked his Release Conditions and detained Shively until sentencing in this matter. See Court’s Order ECF #42.

At his detention hearing, the probation officers claimed that Shively “reached for a shotgun, prompting one USPO to draw his weapon.”

That’s what led him to be jailed: not the original assault on the cops, but that he allegedly grabbed for a gun when probation officers found he had one that his release conditions prohibited him from even having.

That’s what Kash Patel claims is a two-tier system of justice, that after a guy accused of assault allegedly grabbed for a gun when his probation officers found it, he was detained.

Importantly, on intake, Judge Kollar-Kotelly made sure he would be assessed for the best medical treatment, for which his attorney later expressed appreciation for the “Court’s mindfulness of his medical situation.”

Shively remained in the DC Jail in March 2023 because his attorney asked for — and ultimately got — Kollar-Kotelly to recuse from the case because she had learned, ex parte, of an altercation at the jail in 2022, which led to a delay in his sentencing from February to June 2023.

In the end, in June 2023, Judge Jia Cobb sentenced Shively to 18 months for the assault, less than the 27 months even his attorney suggested.

Apparently, the aspiring FBI Director thinks that men out on pre-trial release should be able to grab a gun they’re prohibited from having when federal probation officers arrive and not get detained.

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“Embarrassingly Wrong:” The Ongoing Misinformation Campaign about the Hunter Biden Hard Drive

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Trump’s Executive Order stripping 51 former spooks of clearance for writing a true letter expressing their opinion that Rudy Giuliani’s claims to have Hunter Biden’s emails “has all the classic earmarks of a Russian information operation” has led to inevitable false claims about the hard drive people falsely call a laptop.

Shockingly, it comes from Shane Harris, who at least while at WaPo would not make the kinds of errors he makes in this piece.

Harris states as fact that the 51 spooks were “embarrassingly wrong” and as proof, asserts that “the emails really did turn out to belong to Hunter Biden.”

But they were wrong. Embarrassingly wrong. The emails really did turn out to belong to Hunter Biden, and they raised legitimate concerns that he was trying to profit from his father’s political position. No evidence ever surfaced that Russia had played a role in bringing the emails to light. Intelligence experts sometimes make bad calls. This was one of those times.

[snip]

Some of the signatories still defend their work by noting, correctly, that they said the emails might be part of some Russian trick, not that they definitely were. That too-cute defense does not absolve them of bad judgment.

Except, as John Brennan noted in an interview on MSNBC, one thing they posited in the letter is that the information might be “accurate information,” noting that Russia did just that in the 2016 presidential election.

Such an operation would be consistent with some of the key methods Russia has used in its now multi-year operation to interfere in our democracy – the hacking (via cyber operations) and the dumping of accurate information or the distribution of inaccurate or misinformation. Russia did both of these during the 2016 presidential election. [my emphasis]

Harris knows this stuff! While the Guccifer 2.0 persona altered some of the documents stolen from the DNC and misrepresented others and Yevgeniy Prigozhin’s trolls engaged in outright fabrication, the emails stolen from John Podesta were authentic. The operation nevertheless succeeded in sucking up all the attention in the last several weeks of the election, with scandals manufactured out of inconclusive emails, just like the ones used in the NYPost story.

So claiming that the spooks were wrong because the emails really did turn out to be Hunter’s simply misrepresents both the letter and the mechanism of information operations.

As for Harris’ claim that, “No evidence ever surfaced that Russia had played a role in bringing the emails to light”?

Even ignoring Lev Parnas’ testimony that Rudy was offered a laptop hacked with the assistance of Russian spies in 2019 (while unverified, that is evidence, and Mykola Zlochevsky got the legal relief from Trump’s DOJ that Parnas claimed Rudy was offering at the time), the available record shows that the FBI didn’t do the most basic work they would have had to do to check for such evidence.

Remember, the currently operative story is that someone claimed to be Hunter Biden dropped off three devices at John Paul Mac Isaac’s store in April 2019. JPMI kept one to made a copy of the data. But no one ever retrieved the laptop or a hard drive on which JPMI stored the data. So after snooping through it all, months later, JPMI’s father offered up the laptop to the FBI. In December 2019 — days after Rudy traveled to Kyiv to meet with Andrii Derkach and the same month when DOJ shut down an investigation into Mykola Zlochevsky — FBI obtained both the hard drive and a laptop using a subpoena referencing a money laundering investigation that is not referenced in the warrant from the known tax investigation.

But there’s little evidence that the FBI checked that story. Indeed, the public evidence suggests there’s something fishy about the hard drive, which was the basis for all the other copies, including the one Rudy got.

  • Mac Isaac’s own description of his actions does not match that of the FBI. On top of timeline discrepancies (including about whether FBI accessed the device before obtaining the known warrants), that includes misidentifying the devices dropped off at his shop and falsely claiming the laptop ultimately turned over to FBI did not have a removable hard drive (which was JPMI’s explanation for why he copied the laptop in the way he did).
  • A March 31, 2020 email documented concerns, “about quality and completeness of imaged/recovered information from the hard drive” that “for a variety of reasons [USAO] thought they needed to keep it from the agents” who might testify at trial.
  • Ten months after obtaining the laptop, the FBI had never checked the creation date of the files on it and the FBI never indexed the laptop (nor did it Bates-stamp the files they used at trial).
  • Hunter Biden’s laptop data was not introduced at trial via an expert witness. Rather, a summary witness introduced the data, and she clearly testified she had not been asked to check for signs of tampering. The only things she mentioned at trial that validated the laptop is that the laptop matched subpoena information for Hunter’s iCloud (which may mean no more than that it accessed the account) and Hunter’s publicly available iCloud email account had received an email from John Paul Mac Isaac. Those sworn claims were far short of the things investigators had earlier claimed tied Hunter to the laptop: an exchange of calls, a local purchase, and “other intelligence.”
  • The expert validation used in lieu of expert testimony does not identify the device(s) it validated and only refers to a single extraction report even though two separate extractions (one of the hard drive, another of the laptop) were done.
  • According to prosecutors, the Cellebrite report of the hard drive from which (according to JPMI) all subsequent copies were made is 62% larger, by page count, than the Cellebrite report of the laptop itself.

FBI’s thin validation of the laptop could not rule out involvement of others, not least because of Hunter’s otherwise erratic behavior in the period.

  • At least seven different laptops had accessed Hunter’s iCloud account in the years leading up to Mac Isaac obtaining it; Zoe Kestan testified that Hunter would do business from her laptop and she had access to his bank account via that laptop.
  • Kestan also testified that Hunter would give her and his drug dealers one time codes so they could access his bank accounts.
  • In January 2019, Hunter claimed that his Russian drug dealer had stolen a laptop (this may actually have been an iPad) from him in August 2018; this was the same period when new devices accessed Hunter’s Venmo account from two different cities within 12 minutes of each other. David Weiss appears to have made an error in the Tax Indictment about a closely related Venmo transaction.
  • The access to the laptop in FBI custody does not match Hunter’s normal pattern after obtaining a new device of logging into his iCloud account and at least one of his Google accounts in fairly quick succession.
  • The days before Hunter bought the laptop that would eventually end up in Fox News pundit Keith Ablow’s custody, he paid a Slavic sex worker over $8,000 via four different transactions and different bank accounts, an outlier both in amount and the multiple payment methods.
  • The laptop itself has an inexplicable collection of data, much of which is unavailable from the iCloud backups obtained with warrants in 2019.

Hunter Biden was an addict. As such he had almost no control over his own devices, and both Kestan’s testimony and his own memoir describe that he routinely lost devices. Particularly given the known access he provided others and the number of devices that accessed his iCloud account, it would be child’s play for nefarious actors to package up Hunter’s data on a laptop.

And, at least as late as David Weiss made that error in the tax indictment, no one at FBI or DOJ appears to have tried to check what happened to Hunter Biden’s devices (I think the Kestan testimony may have been based on interviews just before the June gun trial). By all appearances, DOJ had no plan to use evidence from the laptop had the tax case gone to trial.

In his testimony for Jim Jordan’s investigation regarding the letter, James Clapper repeatedly said he’d like a statement about the FBI’s forensic analysis of the laptop. At Kristin Wood’s interview by the Committee, Trump’s OMB Deputy designee (and then Congressman) Dan Bishop said, “If, in fact, the FBI has not conducted a forensic investigation, or has conducted a forensic investigation and has suppressed the results, should the American people continue to defer to the FBI?” Yet when I tried to liberate that forensic report last year, DOJ successfully fought its release.

I’m not saying that this was a Russian operation. I’m saying that, based on the public record, the FBI did scandalously little to even test whether it could be; there’s no evidence they took the steps they would have needed to rule it out and plenty of reason to believe they did not.

The FBI never even indexed the laptop, not over the course of four years of reliance on it. They’re in no position to make claims about its provenance.

And so, Shane Harris is in no position to lecture spooks about them being “embarrassingly wrong.”

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Aileen Cannon Locks Up the Jack Smith Report For at Least 30 More Days

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Aileen Cannon issued her ruling withholding any sharing of Jack Smith’s Volume Two — which she extended to thirty days after all appellate proceedings.

2. Attorney General Garland or his successor(s), the Department of Justice, its officers, agents, officials, and employees, and all persons acting in active concert or participation with such individuals, are enjoined from (a) releasing, sharing, or transmitting Volume II of the Final Report or any drafts of Volume II outside the Department of Justice, or (b) otherwise releasing, distributing, conveying, or sharing with anyone outside the Department of Justice any information or conclusions in Volume II or in drafts thereof

3. This Order remains in effect pending further Court order, limited as follows. No later than thirty days after full conclusion of all appellate proceedings in this action and/or any continued proceedings in this Court, whichever comes later, the parties shall submit a joint status report advising of their position on this Order, consistent with any remaining Rule 6(e) challenges or other claims or rights concerning Volume II, as permitted by law. Any disagreements between the parties can be denoted separately.

She claims the report — which would only be released in redacted form — includes non-public information (and also revealed that Trump was claiming attorney-client privilege over some of the material).

Volume II includes detailed and voluminous discovery information protected by the Rule 16(d)(1) Protective Order entered in this case [ECF No. 27]. Much of this information has not been made public in Court filings. It includes myriad references to bates-stamped information provided by the Special Counsel in discovery and subject to the protective order, including interview transcripts, search warrant materials, business records, toll records, video footage, various other records obtained pursuant to grand jury subpoena, information as to which President-Elect Trump has asserted the attorney-client privilege in motions in this proceeding [ECF No. 571 (sealed); ECF Nos. 641, 656], potential Rule 404(b) evidence, and other non-public information.

Along the way, she notes that no one from Congress has asked for the report, but that the Democratic members of HJC called for its public release.

12. With respect to the Department’s assertion of congressional interest in Volume II, there has been no subpoena by Congress for review or release of Volume II. There is no record of an official request by members of Congress for in camera review of Volume II as proposed by the Department in this case. There is, however, a recent letter by some of those same members urging Attorney General Garland to release Volume II to the public immediately, even if doing so requires dismissal of the charges as to Defendants Nauta and De Oliveira.10 Finally, although the Department refers generally to “legislative interest” concerning special counsels as a basis to deny Defendants’ Emergency Motion as to Volume II [ECF No. 703 p. 3 n.2], the Department has identified no pending legislation on the subject or any legislative activity that could be aided, even indirectly, by dissemination of Volume II to the four specified members whom the Department believes should review Volume II now.

Note that she ignores Kash Patel’s pending confirmation proceedings.

Cannon also makes a patently false claim — that DOJ has never released Special Counsel information prior to the conclusion of criminal proceedings.

Never before has the Department of Justice, prior to the conclusion of criminal proceedings against a defendant—and absent a litigation-specific reason as appropriate in the case itself— sought to disclose outside the Department a report prepared by a Special Counsel containing substantive and voluminous case information. Until now.

The Mueller Report did that: It included (but redacted) information on both the Prigozhin troll case and the Roger Stone one.

Ah well. I did say that Jamie Raskin would have been better off attempting to intervene personally.

Cannon, having released the order after folks at SDFL quit, now makes much of the fact that no one from SDFL is noticed on this matter.

Update: As a reminder, I posted on some of the stuff that would appear in the report here. It sounds like the report itself has a lot more description of surveillance footage.

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Found! Dozens of Damning Documents about Trump’s Hoarding of Classified Documents!

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In an interview with Marc Elias the other day, Dan Goldman made a number of alarming claims. He said that before the release of Jack Smith’s January 6 report, “we didn’t really know about … the extensive litigation that the Special Counsel had to go through just to get this evidence.” That is, Goldman admitted that he missed the unsealing, in October, of the very documents Jack Smith cited to describe that process (which I wrote about at the time). Goldman missed the opportunity to make a stink about this before the election.

Goldman also wondered “if Elon Musk and X, while he has owned it, has ever not cooperated in the same way [as they did in response to a warrant for Trump’s Twitter account] in a different case.” We know the answer to that: according to an opinion Chief Judge Boasberg unsealed (and first spotted by Kyle Cheney, who played a key role in liberating the Executive Privilege dispute), from January to March of last year, Xitter refused to turn over mere subscriber records in what sounds like a leak investigation.

Much later in the interview (after 19:00), Goldman said,

Volume Two of the report is going to provide a lot more information that we don’t know. The litigation in the January 6 case, including the memo outlining all of the evidence, has been so extensive that, as we see from Volume One, there really isn’t that much that we didn’t know. There was also an entire Congressional Committee that did this investigation. This has been exhaustively investigated. And yes they did get more evidence because they had grand jury power. They got more witnesses to speak than the January 6 Committee did. But we’ve known about that.

We know very little about what the back-and-forth was with the National Archives, the FBI, Donald Trump and his team, others. And one of the things that has jumped out at me in that case is that in one of the filings, the Department of Justice, Special Counsel, said, that there evidence includes why Donald Trump retained the information illegally, and what he was planning to do with it. [my emphasis]

From there, Goldman went on to call for Merrick Garland to dismiss the case, which I’m not sure Garland can do without some judge going along (which was the hold up in the Mike Flynn case).

Now, as I have laid out, Jack Smith eschewed the opportunity to make new information available in Volume One of the report. For example, he didn’t explain why an investigation into Trump’s fundraising and spending ended without charges. Based on what we’ve seen in Volume One, I doubt we’d get the kinds of details Robert Hur provided in his 388-page report, describing every document that wasn’t charged and why not. I doubt we’d learn why the FBI believed there was a tie between a grant of clemency for Roger Stone and a document, classified Secret, about Emmanuel Macron, both found in Donald Trump’s own desk drawer. I doubt we’d learn why Trump compiled low-level classified information into a document with messages from a book author, a religious leader, and a pollster.

And I doubt we’d learn what Trump was planning to do with those classified documents.

I want to see the report. But I doubt it’ll include what Goldman hopes it will.

But it is also the case that we have already gotten a great deal of additional information about the investigation.

It’s not the case, for example, that “we know very little about what the back-and-forth was with the National Archives, the FBI, Donald Trump and his team, others.” This filing describes that process at length, relying on both dozens of documents that Trump himself liberated and 302s from those involved, including a key White House Office of Records Management official and Mark Meadows. This section describes Meadows’ involvement, which (along with actions taken by a former Trump White House Counsel, probably Pat Philbin) led to the involvement of Biden White House Counsel Jonathan Su, the basis of Trump’s bogus claim that Biden’s White House pushed the investigation into Trump.

A succession of Trump PRA representatives corresponded with NARA without ever resolving any of NARA’s concerns about the boxes of Presidential records that had been identified as missing in January 2021. By the end of June 2021, NARA had still received no update on the boxes, despite repeated inquiries, and it informed the PRA representatives that the Archivist had directed NARA personnel to seek assistance from the Department of Justice (“DOJ”), “which is the necessary recourse when we are unable to obtain the return of improperly removed government records that belong in our custody.” Exhibit B at USA-00383980; see 44 U.S.C. § 2905(a) (providing for the Archivist to request the Attorney General to institute an action for the recovery of records). That message precipitated the involvement of Trump’s former White House Chief of Staff, who engaged the Archivist directly at the end of July. See Exhibit 4 Additional weeks passed with no results, and by the end of August 2021, NARA still had received nothing from Trump or his PRA representatives. Id. Independently, the House of Representatives had requested Presidential records from NARA, further heightening the urgency of NARA obtaining access to the missing boxes. Id. On August 30, the Archivist notified Trump’s former Chief of Staff that he would assume the boxes had been destroyed and would be obligated to report that fact to Congress, DOJ, and the White House. Id. The former Chief of Staff promptly requested a phone call with the Archivist. Id.

[snip]

Fall passes with little progress in retrieving the missing records. In September 2021, one of Trump’s PRA representatives expressed puzzlement over the suggestion that there were 24 boxes missing, asserting that only 12 boxes had been found in Florida. Exhibit 7 at USA00383682, USA-00383684. In an effort to resolve “the dispute over whether there are 12 or 24 boxes,” NARA officials discussed with Su the possibility of convening a meeting with two of Trump’s PRA representatives—the former Chief of Staff and the former Deputy White House Counsel—and “possibly” Trump’s former White House Staff Secretary. Id. at USA-00383682. On October 19, 2021, a call took place among WHORM Official 1, another WHORM employee, Trump’s former Chief of Staff, the former Deputy White House Counsel, and Su about the continued failure to produce Presidential records, but the call did not lead to a resolution. See Exhibit A at USA-00815672. Again, there was no complaint from either of Trump’s PRA representatives about Su’s participation in the call. Later in October, the former Chief of Staff traveled to the Mar-a-Lago Club to meet with Trump for another reason, but while there brought up the missing records to Trump and offered to help look for or review any that were there. Exhibit C at USA-00820510. Trump, however, was not interested in any assistance. Id. On November 21, 2021, another former member of Trump’s Administration traveled to Mar-a-Lago to speak with him about the boxes. Exhibit D at USA-00818227–USA-00818228. That individual warned Trump that he faced possible criminal exposure if he failed to return his records to NARA. Id

[my emphasis, links added]

Exhibit D, cited to support a description of a former Trump official who warned that Trump faced criminal exposure, links to this complete 302, from someone whose potty mouth resembles Eric Herschmann. It describes a bunch of things:

  • How on November 21, 2021, he warned Trump to give the documents back: “Don’t give them a noble reason to indict you, because they will.”
  • How a “total moron” who resembles Boris Epshteyn insinuated himself with Trump with claims of voter fraud and subsequently tried to use something, perhaps claims fed to credulous reporters that he was serving a legal function, to cover for his past activities ( a document Trump himself liberated shows call records between this person resembling Epshteyn and a person resembling Chief of Staff designate Susie Wiles).
  • A February 2022 call in which someone resembling Tom Fitton told Trump he didn’t have to send documents back because of Fitton’s “Clinton Socks” ruling,
  • A prediction that Walt Nauta would be pardoned if he were charged with lying to the FBI.

But it also describes an extended description of someone “unhinged” and “crazy” who first got access to the White House through the Member of Congress he worked for, who started the “declassified everything” claim when it first started appearing in the media, which is when Kash Patel made the claim.

Another dispute — about whether Jay Bratt threatened to retaliate against Stanley Woodward if he didn’t get Walt Nauta to cooperate — includes a long discussion about Kash’s testimony. It revealed how Kash tried to delay compliance with a grand jury subpoena indefinitely by hiring a lawyer already busy defending a January 6 seditionist, and when Kash did first testify, the aspiring FBI Director pled the Fifth repeatedly.

On Monday, September 19, 2022, the FBI personally served witness Kashyap “Kash” Patel with a grand jury subpoena, commanding him to appear on September 29, 2022. Prior to engaging with counsel, Patel contacted government counsel on Friday, September 23, 2022, to request a two-week extension. The government agreed to that extension and set his appearance for October 13, 2022. Thereafter, [Stan] Woodward contacted government counsel on September 27, 2022, explaining that he had just begun a lengthy jury trial–United States v. Rhodes et a., No. 22-cr-15 (D.D.C.)–but that Patel had retained him. On September 30, 2022, Woodward request an addition indefinite extension of Patel’s grand jury appearance until some point after the Rhodes trial concluded. (Ultimately, the verdict in the trial was not returned until November 29, 2022, approximately six weeks after Patel’s already-postponed appearance date of October 13, 2022.) The government was unwilling to consent to the indefinite extension that Woodward sought. Woodward, for his part, declined various alternatives offered by the government, including scheduling Patel’s grand jury appearance for Friday afternoons, when the Rhodes trial was not sitting, and a voluntary interview by prosecutors and agents over a weekend.

On October 7, 2022, Patel (through Woodward) filed a motion to quash his grand jury appearance, arguing that requiring Patel to appeal pursuant to the grand jury’s subpoena would violate his constitutional rights by depriving him of his counsel of choice, i.e., Woodward, who was occupied with a jury trial elsewhere in the courthouse. The Court denied the motion to quash on October 11, 2022, see In re Grand Jury No. 22-03 Subpoena 63-13, No. 22-gj-41, Minute Order (Oct. 11, 2022), and required Patel to appear as scheduled on October 13. See id. (“Mr Patel requests a delay of some unspecified time period in his testimony because his counsel, Stanley Woodward, will be engaged in the United States v. Rhodes trial, Case No. 22-cr-15, scheduled to last several weeks, with no promises as to when his counsel will still have time available. Mr. Patel retained Mr. Woodward on the attorney’s first day of jury selection in Rhodes when such circumstance made fully apparent that counsel would be unavailable during Mr. Patel’s scheduled grand jury testimony. In addition, the government has already demonstrated flexibility in meeting Patel’s scheduling needs . . . . Testifying before a grand jury is not a game of find-or-seek-a-better-time or catch-me-if-you-can, and a witness cannot indefinitely delay a proceeding based on his counsel’s convenience. . . .”).

Patel appeared before the grand jury on October 13, 2022, where he repeatedly declined to answer questions on the basis of the rights afforded to him by the Fifth Amendment. Thereafter, the government moved to compel Patel’s testimony. The Court granted the government’s motion to compel, contingent on the government offering statutory immunity. [my emphasis]

This is the same kind of extended discussion of the delays that Trump and his flunkies created that Goldman claimed, incorrectly, first became available in Volume One of Smith’s report.  And it (plus details of Tim Parlatore’s efforts to stall ongoing searches) has been public since April.

Other disputes provided a bunch more information, including pictures, of where and how Trump stored the documents he withheld, including one of this box, in which Trump was storing a document classified Formerly Restricted (that is, a document pertaining to nuclear weapons), along with nine other documents, underneath a Christmas pillow and some bubble wrap (I annotated the photo to show that the documents charged in Counts 12 through 21 were found in it).

Here are discussions of what was hidden under the bubble wrap.

I tried to put these pictures in context in this post and this post.

A passage in the 193-page 302 transcript from Chamberlain Harris (focusing on how she scanned documents including sensitive White House schedules) describes that the door to the storage closet had only the kind of lock you’d find in a residential bathroom — a pinhole they’d open with a tiny flat screwdriver.

Person 10 [Harris]: They used to unlock it for me, because you could lock it from the inside.

Mr. Thakur: Okay. This is obviously after a lock was placed there, they would unlock it for you?

Person 10: No, this was before.

Mr. Thakur: Okay. So are you talking about a lock to another door, or?

Person 10: It’s a door with a pinhole in it.

Mr. Thakur: A door with a pinhole?

Person 10: Like, I don’t know, a circle doorknob?

SA 41: Kind of like what you would find on residential door inside of a home? So it might have a lock like that one on one side of it then other side, rather than an actual place for a key, it’s sort of like a —

Person 10: Yeah.

SA 41: — very tiny screwdriver?

Person 10: Um-hmm.

SA 51: I see. But that was only on the inside of the door. So you — reasonably couldn’t lock it from the outside unless they used that little pin to reengage the lock from the outside?

Person 10: You would just lock it when you left.

Finally, also in April, we got both the interview transcript and grand jury transcript from Walt Nauta.

In other words, there’s far, far more that got released as part of litigation in the documents case than the January 6 case.

And Dan Goldman, whose job it is to oversee such investigations, seemingly knows about none of that: Not the description of how the aspiring FBI Director stalled the investigation. Not the document claiming that the “declassify everything” claim Kash first made was a lie. And not the description of the back-and-forth with NARA that Goldman says he wants.

It’s all there in the docket. And has been (for the most part) since April.

If you want to know how Democrats failed to make more of a political case against Trump during the election, you can start with the fact that Dan Goldman — one of the Democrats’ most forceful voices on rule of law, a former TV personality, and a member of the House Judiciary Committee — knows almost nothing about what was made public in either of the federal cases against Donald Trump and as a result did little to make a big deal of that before the election.

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