James Comer’s War on Christmas: The Burial Ground of a Dick Pic Impeachment

Republicans have rolled out a shiny timeline in support of their impeachment stunt.

It is riddled with unsubstantiated and at times, false claims. As one example, it states as fact that a $40,000 loan repayment James Biden made in 2017 — when Joe Biden was a private citizen — was money laundered from China.

It juxtaposes a misleading (but potentially caveated) answer at the October, 22 2020 debate from Biden with Tony Bobulinski’s interview with the FBI the next day, but doesn’t mention that Trump hosted Bobulinski at that debate and then, according to Cassidy Hutchinson’s book, Mark Meadows handed him something at a covert meeting weeks later.

It doesn’t, however, mention Tony Bobulinski in its report about a meeting between Hunter and CEFC Chairman Ye Jianming on February 16, 2017 (the date of the meeting may not even be correct).

In the testimony Bobulinski gave to the FBI between attending the debate with Trump and having a covert meeting with Mark Meadows, he claimed to have attended that February 2017 meeting and seen Hunter receive a diamond.

BOBULINSKI first met in person with members of the BIDEN family at a 2017 meeting in Miami, Florida. BOBULINSKI, GILLIAR, WALKER, HUNTER BIDEN, and YE all attended the meeting. Also in attendance was Director JIAN ZANG (“ZANG”), a CEFC Director involved in forming new businesses and capitalizing them at the request of CEFC. At the meeting, BOBULINSKI witnessed a large diamond gemstone given as a gift to HUNTER BIDEN by YE.

Perhaps the silence about Bobulinski arises from the fact that Hunter Biden has claimed Bobulinski not only wasn’t at the meeting, but didn’t yet know of James Gilliar’s business ties to him. Rob Walker, who was at the meeting testified, twice, that he didn’t see a diamond pass hands at the meeting.

Walker has read about RHB receiving a diamond from people with CEFC, but he never saw the diamond.

And James Biden testified that an associate of Ye gave Hunter a diamond at his office (not the meeting) — but it ended up being worthless.

James B did recall RHB receiving a diamond from the Chinese but that they found out it was not valuable. RHB said that he received the diamond from an associate of the Chairman at his office [redacted] James B stated that the Chinese always gave something as a welcome gift. RHB was originally told that the diamond was worth $10,000, but James B took it to a friend of his and found out that it was worthless. James B is only aware of one diamond and was not aware of a larger diamond.

All this changes Biden’s statement at the debate significantly; Trump was working off a Bobulinski claim that isn’t backed by the available records.

And then weeks later (again, according to Hutchinson’s book), Trump’s Chief of Staff handed Bobulinski something that might be an envelope.

Much of the timeline focuses on Burisma owner Mykola Zlochevsky’s years-long effort to kill legal investigations into his corruption.

Unsurprisingly, the Republican timeline makes no mention of the investigation that — per Chuck Grassley — DOJ opened into the owner of Burisma in January 2016.

Likewise, James Comer forgot to mention that — again, per Chuck Grassley — Donald Trump’s DOJ shut down that investigation into Zlochevksy in December 2019, even while justifying his Perfect Phone Call with Volodymyr Zelenskyy with a claim to be concerned about corruption at Burisma.

Comer’s timeline definitely doesn’t mention that (per Chuck GrassleyBill Barr’s DOJ shut down an investigation into Zlochevsky when it discusses that Zlochevsky was offering bribes to shut down investigations.

Maybe in addition to impeaching Trump for whatever he handed Bobulinski to make claims about big diamonds he couldn’t see, James Comer should open an impeachment investigation into why Bill Barr’s DOJ shut down that Zlochevsky investigation — and whether there’s a tie between the closure of the investigation and Zlochevksy’s new claims about Biden?

Wow. James Comer’s case for impeaching Donald Trump just keeps getting stronger and stronger!

Admittedly, Comer does take a break from substantiating an impeachment case against Trump by providing scandalous details about Biden … inviting his son to a party.

A party!! Joe Biden invited his son to a Christmas party!?!?!

This is truly scandalous stuff, particularly when contrasted to Bill Barr’s noble efforts to shut down an investigation into Zlochevsky at the same time that Trump was claiming publicly to support an investigation into Zlochevksy and Zlochevksy was, apparently, offering billions to those who shut down such investigations.

A Christmas party!

How dare a good Catholic like Joe Biden invite his own family member — his son!! — to a party at his residence? Surely the 18 Republicans from districts Biden won will be happy to explain their vote to impeach because they’ve decided to declare War on Christmas?

This impeachment gets better every day.

There’s one more utterly ridiculous detail I’m rather obsessed about. In addition to proposing to impeach Joe Biden because he invited his kid to a party, James Comer thinks it’s scandalous that Vadym Pozharskyi sent Hunter notice that his father was traveling to Ukraine.

Wow. Scandal. Pozharskyi knew and shared details about when Biden was traveling to Ukraine.

But I’m interested for a different reason. You see, this claim is almost certainly sourced to the copy of the “laptop” that House Republicans won’t explain — at least not on the record — how they obtained. In addition to the email from 2016 that was resent on September 1, 2020 when the hard drive was in Rudy Giuliani’s possession, this email is one with which I’m obsessed.

Here’s how it appears at BidenLaptopEmails dot com.

The President of the US-Ukraine Business Council got the alert from the White House, he sent it to Burisma, and Pozharskyi sent it — at least by all appearances — to just Devon Archer and Hunter.

As I circled, whoever’s email box this appeared in recognized Pozharskyi’s email not as “Burisma,” but instead as “Burials.” The email also had an identity for Hunter associated; most other emails that he received don’t identify himself.

There’s just one other email in the public set like this — an important one.

It was a thread sent over one week — from November 11 ET through 18, 2015. On it, Pozharskyi, Eric Schwerin, Archer, and Hunter discuss bringing in Blue Star Strategies — they’re the ones who tried to fix Zlochevsky’s legal troubles, with some initial but ultimately short-lived success.

This effort, outsourced as it was, was undoubtedly one of the sleaziest things Hunter was involved in. But the GOP didn’t include this email in their timeline (probably because it makes clear that Hunter did a pretty good job of firewalling off the legal influence peddling).

Anyway, from this email, it appears that it is Schwerin’s email account that, for a few days only, recognized Burisma as “Burials.” Only, he’s not listed as being on the other one.

I really have only suspicions about what explains this anomaly. I care about it, for two reasons. First, because the anomaly, especially on one of about ten or so that really get into Burisma’s efforts to suck Hunter and Archer into this corruption, does raise questions about the provenance of the set of emails loaded up on a laptop attributed to Hunter Biden.

Also because, according to a spreadsheet Joseph Ziegler was generous enough to share with the world, this is among the not quite 10% of emails that the IRS used in its own influence peddling investigation that they sourced to the laptop when it should have been included in returns from warrants obtained from Google on both Hunter and Schwerin’s Rosemont Seneca emails.

There’s a lot in Comer’s timeline that makes a great case for impeachment — of Donald Trump.

There’s a lot in his timeline that shows he continues to rely on fraudsters to make his case.

There’s a lot that tries to criminalize … Christmas!

And then there’s this, an email probably obtained from the famous “laptop,” one that raises some real questions about what got packaged up on a laptop attributed to Hunter Biden.

Judge Tanya Chutkan Had to Tell Trump That, “There is no ‘Presidential Immunity’ Clause”

Less than twelve hours after the DC Circuit ruled that an office-seeker does not enjoy presidential immunity from civil suit, Judge Tanya Chutkan issued her order ruling that Trump does not enjoy presidential immunity for crimes committed while president.

Her opinion can be summed up in one line.

[T]he United States has only one Chief Executive at a time, and that position does not confer a lifelong “get-out-of-jail-free” pass.

The timing of Chutkan’s decision is almost certainly not accidental. The key issue in this opinion, absolute immunity, has been fully briefed (as Trump noted on November 1 when he asked to stay all other proceedings until this was resolved) since October 26.

Chutkan said she was ruling now because the Supreme Court requires immunity to be resolved as early as possible.

Defendant has also moved to dismiss based on statutory grounds, ECF No. 114, and for selective and vindictive prosecution, ECF No. 116. The court will address those motions separately. The Supreme Court has “repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (citations omitted). The court therefore rules first on the Immunity Motion and the Constitutional Motion—in which Defendant asserts “constitutional immunity from double jeopardy,” United States v. Scott, 464 F.2d 832, 833 (D.C. Cir. 1972).

She did not source that cite to Trump’s request for a stay, nor did she say she was also ruling on Trump’s motion to dismiss on Constitutional grounds, which includes a Double Jeopardy claim, because Molly Gaston asked her to,

But by ruling as she did (without a hearing), she simply mooted Trump’s request to stay any further proceedings with a minute order.

MINUTE ORDER as to DONALD J. TRUMP: In light of the court’s [172] Order denying Defendant’s [74] Motion to Dismiss Based on Presidential Immunity; Defendant’s [128] Motion to Stay Case Pending Immunity Determination is hereby DENIED as moot.

This puts the onus on Trump to appeal, which he reportedly will (though he has dilly-dallied on some of these motions, so we’ll see how much time he kills in the process).

It seems clear that Chutkan waited for Blassingame, the civil immunity opinion, because she found a way to cite it twice and still release her own opinion on the same day.

But it also seems likely that Judge Chutkan and her clerks simply reviewed that opinion to make sure nothing wildly conflicted with her already completed opinion, because her opinion doesn’t incorporate details of the absolute immunity argument — such as the significance of the fact that five of six co-conspirators described in the indictment (everyone but Jeffrey Clark) is a private citizen, which would be important if the DC Circuit applied any of their civil immunity test to the criminal context.

Indeed, one of Chutkan’s citations to Blassingame effectively admitted she didn’t get into its test — whether Trump was acting in his official role when he did the things alleged in the indictment.

Similarly, the court expresses no opinion on the additional constitutional questions attendant to Defendant’s assertion that former Presidents retain absolute criminal immunity for acts “within the outer perimeter of the President’s official” responsibility. Immunity Motion at 21 (formatting modified). Even if the court were to accept that assertion, it could not grant Defendant immunity here without resolving several separate and disputed constitutional questions of first impression, including: whether the President’s duty to “take Care that the Laws be faithfully executed” includes within its “outer perimeter” at least five different forms of indicted conduct;5 whether inquiring into the President’s purpose for undertaking each form of that allegedly criminal conduct is constitutionally permissible in an immunity analysis, and whether any Presidential conduct “intertwined” with otherwise constitutionally immune actions also receives criminal immunity. See id. at 21–45. Because it concludes that former Presidents do not possess absolute federal criminal immunity for any acts committed while in office, however, the court need not reach those additional constitutional issues, and it expresses no opinion on them.

5 As another court in this district observed in a decision regarding Defendant’s civil immunity, “[t]his is not an easy issue. It is one that implicates fundamental norms of separation of powers and calls on the court to assess the limits of a President’s functions. And, historical examples to serve as guideposts are few.” Thompson v. Trump, 590 F. Supp. 3d 46, 74 (D.D.C. 2022); see id. at 81–84 (performing that constitutional analysis). The D.C. Circuit recently affirmed that district court’s decision with an extensive analysis of just one form of conduct—“speech on matters of public concern.” Blassingame v. Trump, Nos. 22-5069, 22-7030, 22-7031, slip op. at 23–42 (D.C. Cir. Dec. 1, 2023).

Instead, Chutkan argued — in language that likely preceded the Blassingame opinion, in a section on whether holding a former President criminally accountable will pose some of the harms to the presidency and government that suing a current or former President might — that no matter what the analysis is for civil immunity, criminal immunity is different.

The rationale for immunizing a President’s controversial decisions from civil liability does not extend to sheltering his criminality.


For all these reasons, the constitutional consequences of federal criminal liability differ sharply from those of the civil liability at issue in Fitzgerald. Federal criminal liability will not impermissibly chill the decision-making of a dutiful Chief Executive or subject them to endless post-Presidency litigation. It will, however, uphold the vital constitutional values that Fitzgerald identified as warranting the exercise of jurisdiction: maintaining the separation of powers and vindicating “the public interest in an ongoing criminal prosecution.” 457 U.S. at 753–54. Exempting former Presidents from the ordinary operation of the criminal justice system, on the other hand, would undermine the foundation of the rule of law that our first former President described: “Respect for its authority, compliance with its laws, [and] acquiescence in its measures”—“duties enjoined by the fundamental maxims of true liberty.” Washington’s Farewell Address at 13. Consequently, the constitutional structure of our government does not require absolute federal criminal immunity for former Presidents.

The analysis has to be different of course. If you can be impeached for using your office to extort campaign assistance, it should not be the case that you cannot, though, be criminally charged for that extortion.

This is an opinion about whether impeachment provides the sole recourse for holding a former President accountable.

Judge Chutkan provides a very neat solution to that problem, by noting that impeachment is just one of two ways to remove a President who has misused his office.

[T]here is another way, besides impeachment and conviction, for a President to be removed from office and thus subjected to “the ordinary course of law,” Federalist No. 69 at 348: As in Defendant’s case, he may be voted out. The President “shall hold his Office during the Term of four Years.” U.S. Const. art. II, § 1, cl. 1. Without reelection, the expiration of that term ends a Presidency as surely as impeachment and conviction. See United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807) (Marshall, Circuit Justice) (“[T]he president is elected from the mass of the people, and, on the expiration of the time for which he is elected, returns to the mass of the people again.”). Nothing in the Impeachment Judgment Clause prevents criminal prosecution thereafter. [my emphasis]

Because voters saw fit to remove Trump, Chutkan held, he can now be charged criminally.

Chutkan punts the other questions upstairs to the DC Circuit and from there to SCOTUS.

And while I think Chutkan’s analysis of the two impeachment issues — immunity and double jeopardy — is sound, I do worry that her treatment of several other issues — the things Trump included in his motion to dismiss on Constitutional grounds besides double jeopardy — got short shrift as a result.

Those issues have only been briefed since November 22. She and her clerks probably wrote that part of the opinion over Thanksgiving weekend. And far less of her opinion addressed those issues — seven pages for the First Amendment issues and four for matters of fair notice — than addressed the impeachment issue:

Background (what the indictment really charges) 1

Standard 5

Executive Immunity 6

    • Text of Constitution 6
    • Structure (concerns of public policy, addressing Fitzgerald) 14
      • Burdens on the Presidency 15-20
      • Public Interest 20-25
    • History 25-29
    • Summary 29-31

First Amendment 31

    • Core political speech of public concern 33
    • Statements advocating govt to act 35
    • Statements on 2020 Election 37

Double Jeopardy 38

Due Process 44 (4 pages)

Importantly, while she noted at the outset of her opinion (in the five page “background” section) that Trump totally misrepresented the indictment against him, she didn’t lay out how, in addition to speech-related actions charged as conspiracies, there are some actions that are more obviously fraud, such as the effort to counterfeit elector certificates or the knowingly false representations about Mike Pence’s intent. Trump’s misrepresentation of the indictment is really egregious, but Chutkan barely explains why that’s a problem in this opinion.

Both the First Amendment issues and the notice issues (particularly on 18 USC 1512, though there’s readily available language on 18 USC 241 charge in the Douglass Mackey case) have been addressed repeatedly in other January 6 cases. Since those cases will be appealed on a more leisurely pace than this one, I worry that the issues are not fully addressed. And those are the issues about which Clarence Thomas and Sammy Alito were most likely to intervene in any case.

This is an opinion about holding a former President accountable before he becomes President again. The danger is real: On the same day two courts ruled that Trump didn’t have absolute immunity for his conduct while he was President, his Georgia lawyer argued that if he wins in 2024, he can’t be tried on that case until 2029.

But for now, the matter has been sent to the DC Circuit to deal with.

DC Circuit Rules that a President’s Speech as Candidate Is Not Official

The DC Circuit just ruled that three lawsuits against Donald Trump (and others) for actions on January 6 can move forward.

Chief Judge Sri Srinivasan wrote the majority opinion, joined by Greg Katsas and Judith Rogers. He wrote:

When a sitting President acts in his capacity as a candidate for re-election, he acts as office-seeker, not office-holder.

But Katsas — a former Trump White House counsel and a Trump appointee — may have summarized the holding best.

Today, we do not definitively resolve that question. Instead, we hold only that we cannot resolve it on a motion to dismiss. Our conclusion rests on two propositions persuasively established by Chief Judge Srinivasan’s lead opinion. First, in certain limited contexts, courts may reliably conclude that a sitting President is speaking only in a private capacity as a candidate for re-election or as the leader of a political party. These include instances where the President speaks at a party convention, in a presidential debate, in a political advertisement, at a campaign rally, or at a party fundraiser. Second, the operative complaints plausibly allege that the January 6 speech involved this kind of purely private campaign speech. In particular, the complaints allege that the January 6 rally was organized by campaign staff and funded by private donors, and was neither facilitated by White House staff nor paid for with congressionally appropriated funds. Given those allegations, which remain to be tested on summary judgment or at trial, we cannot resolve the immunity question in President Trump’s favor at this stage of the case.

Trump never argued that his actions were official. Instead, he said that when a President speaks on matters of public interest, even as a candidate, he is entitled to immunity.

But all three judges rejected that view.

Srinivasan engaged in an extended discussion of how unfair it would be for a former President running to be elected President again if he were running against the sitting President — that is, the presumed state of the 2024 race. Under Trump’s scheme, Biden would be immune for anything he said as a candidate; Trump would not.

Under President Trump’s proposed public concern test, if the candidate happens to be the sitting President (but not if she is a former President or any other candidate), her speech in the ad would be official—even though it is plainly campaign speech in a campaign ad given in her private capacity as candidate. A sitting President then would be absolutely immune from defamation liability for something she may have said about her opponent in the campaign ad, whereas a former President would face liability for saying the very same thing in the very same ad.

The pro-incumbent imbalance would be especially stark if the former and current Presidents were to run against each other. In that situation, one candidate, the former President, would face civil damages liability for statements on matters of public concern in campaign ads or in an acceptance speech at a party convention. But the competing candidate, the sitting President, would be wholly insulated from damages liability for making the very same statements on the opposing side of the very same race. We see no basis for giving an incumbent President that kind of asymmetrical advantage when running against his predecessor.

This case — and Trump’s criminal case, presumably — will now focus on certain aspects of January 6 to test whether this was a campaign event or an official event. It will pivot on who paid for what and who organized the event.

There’s a big problem with this opinion. A sitting President cannot be prosecuted if he spends official resources for campaign events. Trump’s White House was repeatedly found to have broken the Hatch Act, and the President and Vice President are not covered by it. So a future Donald Trump (and indeed, all Presidents to some degree) will now have an incentive to bill taxpayers for all events so as to enjoy presidential immunity.

But for now, it’ll go back before Judge Mehta for a renewed discussion about whether this was an official presidential event or a campaign event.

Update: Fixed Judith Rogers/Janice Rogers Brown for probably the 100th time in my life.

Hunter Biden Gets a Step Closer to Vindicating Twitter’s Takedown Decision

Yesterday, as things moved closer to an expulsion vote for George Santos, activist “Anarchy Princess” taunted Santos staffer, Vish Burra, about whether he hacked Hunter Biden’s phone.

AP: Like the same way that you got into Hunter Biden’s stuff?

VB: [laughter]

AP: Yeah, didn’t you hack Hunter Biden’s shit, his phone or something?

VB: [turns to camera] Yeah, and I’d do it again.

Burra, who in 2020 was the producer of Steve Bannon’s podcast, has previously described “extracting” the contents of the “laptop” and took credit for hooking Bannon up with Emma-Jo Morris, who published the initial NY Post story.

Hunter Biden described Burra’s past claims in his lawsuit against Rudy Giuliani and Robert Costello for unlawfully accessing and manipulating his data.

As further evidence of Defendants’ illegal hacking of Plaintiff’s data, it recently has come to light that Defendant Giuliani apparently worked directly with Steve Bannon and Vish Burra to access, manipulate, and copy Plaintiff’s “laptop,” which Burra has dubbed the “Manhattan Project” because he and others “were essentially creating a nuclear political weapon,” referring to Burra’s work with Defendant Giuliani and others (Steve Bannon and Bernie Kerik) to manipulate the “laptop.”

But Burra has not, as far as I know, confessed to “hack[ing] Hunter Biden’s shit.”

Yesterday — whether in jest or not — he did.

Later that same day, Matt Taibbi and Michael Shellenberger had their semi-annual appearance before Jim Jordan’s Weaponizing Government committee.

At the hearing, Dan Goldman had this exchange with Shellenberger about the “Hunter Biden” “laptop:”

DG: You’ve talked about the Hunter Biden laptop, and how the FBI knew it existed. You are aware, of course, that the laptop, so to speak, was actually — that was published in the New York Post was actually a hard drive that the NY Post admitted — here! — was not authenticated as real. It was not the laptop the FBI had. You’re aware of that, right?

MS: It was the same contents.

DG: How do you know?

MS: Because it’s the same —

DG: You would have to authenticate it to know it was the same contents. You have no idea.

MS: [inaudible] conspiracy. Are you suggesting the NY Post participated in a conspiracy to construct the contents of the Hunter Biden laptop?

DG: No, sir, the problem is that hard drives can be manipulated by Rudy Giuliani or Russia.

MS: What’s the evidence that that happened?

DG: Well, there is actual evidence of it, but the point —

MS: There’s no evidence of it. You’re engaged in a conspiracy theory.

Miranda Devine (who keeps dog-whistling about Hunter Biden’s “expensive” lawyers) and the House GOP all seem to think this was a very clever exchange, as that’s the clip they all sent out to froth up the rubes.

Goldman is right: You’d need to authenticate the contents of the “laptop.” As I have shown, even the FBI had not checked whether anything was altered on the laptop they received while in John Paul Mac Isaac’s custody, ten months after receiving it. Their computer guy was still suggesting ways to do that on October 22, 2020, over a week after the NY Post story was published. At the time, Lesley Wolf — the villain of the Republican story — was in no rush to do so.

Understand, though: the critical question here is not whether the hard drive was authenticated. The question is whether it was hacked. Here’s how Vijaya Gadde described the decision to take down the original NY Post link in October 2020.

For example, on October 14th, 2020, the New York Post tweeted articles about Hunter Biden’s laptop with embedded images that look like they may have been obtained through hacking. In 2018, we had developed a policy intended to, to prevent Twitter from becoming a dumping ground for hacked materials. We applied this policy to the New York Post tweets and blocked links to the articles embedding those source materials. At no point did Twitter otherwise prevent tweeting, reporting, discussing or describing the contents of Mr. Biden’s laptop.

If the data in NY Post’s hands was hacked, then according to Twitter’s terms of service, links to it should have been taken down.

If the data in NY Post’s hands was hacked, then the takedown that Republicans claim was a violation of their speech was, in fact, adherence to Twitter’s terms of service as they existed at the time.

And Hunter Biden’s lawsuit alleges that Rudy Giuliani and Robert Costello unlawfully accessed — hacked — his data.

And yesterday, Burra — the guy who set up the tie between Bannon and the NY Post in the first place — laughingly agreed that he did hack Hunter Biden’s shit.

Now, Michael Shellenberger says there’s no evidence the data on the hard drive was altered by Burra and others. Miranda Devine says you have to take the word of the Bidens to believe that happened.

They said that the same day Burra laughingly said he would hack Hunter Biden again.

More importantly, you don’t have to go to the Bidens for evidence that the hard drive was altered. You can go to Garrett Ziegler, whom Hunter Biden has also accused of hacking his shit.

In the set of emails publicly released by Ziegler at BidenLaptopEmails dot com, there is an email from Hunter Biden’s Rosemont Seneca email account (hosted by Gmail), that was sent on September 1, 2020 ET (September 2 GMT).

It’s a resent version of an email sent in 2016 (DDOS says that a footer was also altered).

If everything John Paul Mac Isaac says is true, if everything Rudy Giuliani says is true, this “laptop” was in the custody of Rudy Giuliani (or Robert Costello, on Rudy’s behalf) on the date it was sent. Whoever resent this email — and it was sent over a year after Hunter left Burisma — it was added to the “laptop” while it was in Rudy’s custody.

I’ll leave it to the lawyers and the tech people to explain how an email set from an account hosted by Gmail was added to the hard drive from which Garrett Ziegler obtained his copy. I’ll leave it to the lawyers to argue about whether it would necessarily require unauthorized access to Hunter Biden’s Gmail or iCloud account for that email to be on the hard drive.

But it’s something that could not have been on the laptop when someone — allegedly Hunter Biden — dropped off a laptop at John Paul Mac Isaac’s shop on April 12, 2019. By all understandings of the dissemination of various hard drives — which Thomas Fine has illustrated this way — it would have been on what NY Post worked from on its October 14, 2020 story.

There’s no evidence, Michael Shellenberger said. You’re supposed to take the words of the Bidens, Miranda Devine said.

And on the same day they made those claims, Vish Burra said, of hacking Hunter Biden’s stuff, “Yeah, and I’d do it again.”

Boris Epshteyn’s Absence and Presence in Trump’s Alleged Crime Spree

ABC had a story yesterday revealing details about Trump attorney Jennifer Little’s role in the former president’s stolen document case. Most commentators are focused on the warning that Little testified she gave Trump: that failing to comply with a subpoena would be a crime.

But the backstory it tells is more interesting to me. It describes that Little — who continues to represent Trump on the Georgia case, though specialists in Georgia’s RICO law have also joined that team — was hired (the implication is, for the Georgia investigation) in March 2021 and only a year later did some other things for him.

Little was first hired by Trump in March 2021, only a couple of months after he left the White House, and shortly after authorities in Georgia launched their election-related probe. But more than a year later, she ended up briefly helping Trump with other matters.

When DOJ subpoenaed Trump in May 2022, Little suggested bringing in someone, “who had handled federal cases,”  which is reportedly why Evan Corcoran — someone totally inappropriate to a classified documents case, but someone who was then representing Steve Bannon in his contempt case — was brought in. In any case, I’m fairly certain Trump was already represented by people who had federal experience.

Little attended a May 23 meeting and, per ABC’s report, told Trump to take the subpoena seriously.

Four months later, believing Trump still possessed even more classified documents, the Justice Department issued its subpoena to him. Little suggested retaining an attorney who had handled federal cases before, so Corcoran was then hired, and she essentially handed over the matter to him, sources said.

On May 23, 2022 — 12 days after receiving the subpoena — Little and Corcoran met with the former president at Mar-a-Lago. It was Corcoran’s first time meeting Trump in person, and Little allegedly wanted to help ease Corcoran into his new role.

But, as sources described it to ABC News, Little told investigators she had a bigger purpose in going to that meeting: She wanted to explain to Trump that whatever happened before with the National Archives “just doesn’t matter,” especially because Trump never swore to them, under the penalty of perjury, that he had turned everything over, sources said. But whatever happens now has “a legal ramification,” Little said she tried to emphasize to Trump, according to the sources. [emphasis of passive voice my own]

That means that Little — and not Boris Epshteyn, as I and others had suspected — is Trump Attorney 2 in the indictment.

The indictment describes that Little and Evan Corcoran informed Trump about the subpoena, after which he authorized Corcoran, not Little, to accept service. The two lawyers met with Trump together on May 23.

53. On May 11, 2022, the grand jury issued a subpoena (the “May 11 Subpoena”) to The Office of Donald J. Trump requiring the production of all documents with classification markings in the possession, custody, or control of TRUMP or The Office of Donald J. Trump. Two attorneys representing TRUMP (“Trump Attorney 1” and “Trump Attorney 2”) informed TRUMP of the May 11 Subpoena, and he authorized Trump Attorney 1 to accept service.

54. On May 22, 2022, NAUTA entered the Storage Room at 3:47 p.m. and left approximately 34 minutes later, carrying one of TRUMP’s boxes.

55. On May 23, 2022, TRUMP met with Trump Attorney 1 and Trump Attorney 2 at The Mar-a-Lago Club to discuss the response to the May 11 Subpoena. Trump Attorney 1 and Trump Attorney 2 told TRUMP that they needed to search for documents that would be responsive to the subpoena and provide a certification that there had been compliance with the subpoena. TRUMP, in sum and substance, made the following statements, among others, as memorialized by Trump Attorney 1:

a. I don’t want anybody looking, I don’t want anybody looking through my boxes, I really don’t, I don’t want you looking through my boxes.

b. Well what if we, what happens if we just don’t respond at all or don’t play ball with them?

c. Wouldn’t it be better if we just told them we don’t have anything here?

d. Well look isn’t it better if there are no documents?

56. While meeting with Trump Attorney 1 and Trump Attorney 2 on May 23, TRUMP, in sum and substance, told the following story, as memorialized by Trump Attorney 1:

[Attorney], he was great, he did a great job. You know what? He said, he said that it – that it was him. That he was the one who deleted all of her emails, the 30,000 emails, because they basically dealt with her scheduling and her going to the gym and her having beauty appointments. And he was great. And he, so she didn’t get in any trouble because he said that he was the one who deleted them.

TRUMP related the story more than once that day.

57. On May 23, TRUMP also confirmed his understanding with Trump Attorney 1 that Trump Attorney 1 would return to The Mar-a-Lago Club on June 2 to search for any documents with classification markings to produce in response to the May 11 Subpoena. Trump Attorney 1 made it clear to TRUMP that Trump Attorney 1 would conduct the search for responsive documents by looking through TRUMP’s boxes that had been transported from the White House and remained in storage at The Mar-a-Lago Club. TRUMP indicated that he wanted to be at The Mar-a-Lago Club when Trump Attorney 1 returned to review his boxes on June 2, and that TRUMP would change his summer travel plans to do so. TRUMP told Trump Attorney 2 that Trump Attorney 2 did not need to be present for the review of boxes.

This section of the indictment relies heavily on Corcoran’s notes. Perhaps the only thing that relies on Little’s testimony is the description that Trump told her she did not have to be present to review the boxes — in retrospect, a weird decision, since the task of reviewing the contents of 35 or so boxes in one day is pretty daunting.

The indictment does not include the warning that ABC describes Little giving.

But, she told Trump, if there are any more classified documents, failing to return all of them moving forward will be “a problem,” especially because the subpoena requires a signed certification swearing full compliance, the sources said.

“Once this is signed — if anything else is located — it’s going to be a crime,” sources quoted Little as recalling she told Trump.

The sources said that when investigators asked Little if those messages to Trump “landed,” she responded: “Absolutely.”

The former president said something to the effect of, “OK, I get it,'” the sources said she recalled to investigators.

ABC notes in the story that they previously broke the news of Corcoran giving Trump warnings, warnings which also don’t appear in the indictment.

ABC News reported in September that, according to the notes and what Corcoran later told investigators, Corcoran had warned Trump that if he didn’t comply with the subpoena, he could face legal trouble and that the FBI might search his estate.

As I noted, I and others had previously assumed that Attorney 2 was Boris Epshteyn. That’s because he was centrally involved in this process: he had previously been credited with hiring Corcoran (which is why I bolded the passive voice reference above), he was reported to have recruited Christina Bobb to be the fall-gal on the false declaration, he pushed an aggressive strategy, and then he attempted to retroactively claim that at the time he was doing that, he was representing Trump as a lawyer, not a political consultant.

Remarkably, reporting on Boris’ role in all this has completely disappeared from the story.

Reports obviously sourced to witnesses friendly to the defendant are often an attempt to share information otherwise covered by a protective order with those potentially exposed: it’s a way to compare stories without leaving an obvious trail of witness tampering.

And this story, revealing details of testimony that would be of interest to the quasi-lawyers who were also involved in this process but who weren’t even mentioned in the indictment, comes just weeks after another such leak, of the video testimony from flipped witnesses in the Georgia case.

There may have been two leaks: one, of just the depositions of Jenna Ellis and Sidney Powell, to ABC, and a second, of fragments of the depositions of all four known cooperating witnesses, to WaPo. The lawyer for Misty Hampton, implicated with Powell in the Coffee County plot, admitted to leaking the videos, or at least some of them. But that doesn’t explain why there appear to be two sets of videos.

The ABC set describes Jenna Ellis describing first learning about the fake elector plot from an text thread Epshteyn initiated.

Ellis, who in her remarks alternated between speaking on and off the record with prosecutors, instead discussed only the context surrounding the two incidents she couldn’t divulge, including saying that she first learned about the concept of the fake electors plot from Giuliani and current Trump adviser Boris Epshteyn.

“There was one group [text] thread that Boris initiated when — which was the first time that I learned of it — asking me to just join a phone call,” Ellis told prosecutors, who then stopped her from discussing the details of the call.

The WaPo report includes a version of that.

The former Trump attorney also told prosecutors that she was asked to join a Dec. 7, 2020, conference call with Giuliani and two other Trump campaign officials — Mike Roman, who is also charged in the Georgia case, and Epshteyn — as they talked “legal strategy” with several Republicans who were slated to serve as Trump electors in Pennsylvania.

Ellis said she had not initially been privy to the “fake elector plot” and believed “it had been shielded from me specifically” — though she did not elaborate on why. Ellis said she became aware of the effort when she was added to a group text chain about the plan that included Giuliani, Epshteyn, Roman and Eastman.

It also adds Kenneth Chesebro’s description that Epshteyn, not Rudy Giuliani, was quarterbacking Trump’s efforts to undermine the election.

At one point, a prosecutor asked Chesebro who he thought was “quarterbacking” the Trump campaign’s legal efforts — Giuliani, Eastman or Epshteyn. Chesebro replied that it appeared to be Epshteyn. Epshteyn declined to comment.

Remember: Epshteyn is not charged in the Georgia indictment; Epshteyn is unindicted co-conspirator 3. Mike Roman is charged for the coordinating that both accomplished.

Epshteyn is, however, believed to be co-conspirator 6 in the DC indictment.

I suggested during the discussions about a protective order in DC that Epshteyn may have been the person prosecutors had in mind when objecting to including “other attorney[s] assisting counsel of record” in the case, not least because Trump attorney Todd Blanche also represents Epshteyn.

Epshteyn is not just someone who is known to have been closely involved in the fake elector conspiracy, but he is someone who in the stolen document case served as an “other attorney assisting counsel of record.” Crazier still, Epshteyn shares an attorney with Trump: Todd Blanche, who represents Trump in the Alvin Bragg case, the stolen documents case, and now the January 6 case. Epshteyn, who has never filed a notice of appearance for Trump, has followed him around to his various arraignments as if he is family.

If DOJ has a specific concern about Trump sharing discovery with Epshteyn — who has been centrally involved in Trump’s efforts to combat his legal jeopardy by attacking rule of law — this is the kind of objection they might raise.

I had already contemplated whether some of the exhibits submitted with a discovery motion (which on reflection, was submitted by Blanche) were intended to share information, including details about what Trump is trying to obtain under CIPA. For example, the initial 49-page discovery memo included with the motion would be really valuable to any unindicted co-conspirators who might find a way to access the unredacted copy submitted under seal. Aside from references to the general January 6 database (which is mentioned at more length in another file submitted), it is otherwise only cited for references to this redacted paragraph that by context appears to pertain to discovery relating to the Secret Service.

The motion itself has helpful details about how prosecutors on one Jack Smith investigation sat in on interviews of witnesses in the other Jack Smith investigation.

For example, the Special Counsel’s Office used the same grand jury in this District for matters relating to both cases. Assistant Special Counsel John Pellettieri has appeared on behalf of the Office in this case and in the Florida Case. Senior Assistant Special Counsel (“SASC”) Thomas Windom, who has entered a notice of appearance for the prosecution in this case, participated in at least 27 of the interviews described in discovery produced in the Southern District of Florida. SASC Julie Edelstein, counsel of record in the Florida Case, participated in 29 of the interviews that have been produced in discovery in this case. Jay Bratt, also counsel of record in the Florida Case and Counselor to the Special Counsel, participated in 10 of the interviews that have been produced in discovery in this case. Notwithstanding the clear overlap of personnel and intermixed responsibilities, the Office has sought to artificially narrow its definition of the prosecution team to an unidentified subset of individuals who, apparently in its sole judgment, “are working on this case.” Ex. D. Not so. As the entire Office has participated in this prosecution, both in fact and by General Garland’s Order, the entire Office is subject to the prosecution’s discovery obligations.

This is likely highly misleading: for people who are witnesses in both cases — as, for example, Molly Michael and Alex Cannon would be — DOJ shared both sets of witness 302s in both places (and so some of the Edelstein and Bratt interviews would simply be stolen document interviews shared in January 6 discovery and some of the Windom interviews would be the counterpart). But it is also likely the case that some prosecutors sat in on interviews that would touch on investigative subjects of interest.

Then there’s Blanche’s treatment of it. After objecting back in September when DOJ submitted a filing along with the motion to seal it, that’s what Trump did here (for which Judge Chutkan scolded them), so if DOJ had any objection to the non-redactions in these filings, it would have been too late.

Boris Epshteyn, who was the focus for months of reporting about his role in Trump’s twin federal indictments, has all but disappeared. Indeed, ABC’s scoop about Little makes clear that his reportedly significant role in the stolen documents case never even made the indictment.

But as other recent leaks make clear, his role in both alleged felony conspiracies remains significant.

Donald Trump Insists He’s Too Special To Use Same Database 1,200 Other January 6 Defendants Have Used

In addition to his claim that he needs a bunch of intelligence so he can try to distinguish his influence operations from those of Russian spies, Donald Trump also submitted a filing claiming that Jack Smith has not done an expansive enough search on discovery.

To understand how frivolous this filing is, consider that it complains that Jack Smith has not included DC USAO materials on the January 6 investigation in its discovery to Trump.

Since the Order, the Special Counsel’s Office has enjoyed constructive access to USAODC documents. In an August 11, 2023 discovery letter, the Office wrote that the USAO-DC “maintains a separate database of materials comprising discovery in the criminal cases related to the breach of the United States Capitol on January 6, 2021.” Ex. G at 6. The letter stated that the “investigative team” in this case had “accessed certain materials within that database and has taken into its possession certain materials that the investigative team may rely upon or use at trial.” Id. Given these alignments, there is no question that the USAO-DC is part of the prosecution team.

Twice over the course of these discovery letters, DOJ has told Trump if he wants access to the full database provided to all the other January 6 defendants, he can get it.

As we advised you, in the course of our investigation, we accessed certain materials within that database, took into our possession certain materials that we may rely upon or use at trial, and produced them to you in discovery in our case. In our August 11 letter, we also offered to facilitate your access to the USAO database. We reiterate that offer now.

In response, Trump complained about DOJ’s unwillingness to identify everything in the database that might be helpful.

Seeking to avoid that obligation, the prosecution’s November 25 letter again directed our attention to a “a separate database of materials comprising discovery in criminal cases related to the breach of the Capitol on January 6, 2021.” Ex. F at 3; see also Ex. G at 6. Like SASC Windom’s “full access to the FBI’s trove of evidence about Oath Keeper and Proud Boy extremists involved in the riot,” Doc. 116-1 at 9, the Office’s conceded access to the USAO-DC’s database further supports President Trump’s position that the USAO-DC is part of the prosecution team.

However, it is not enough for the prosecution to offer the defense access to materials produced in those cases. “The government cannot meet its Brady obligations by providing [the defendant] with access to 600,000 documents and then claiming that [the defendant] should have been able to find the exculpatory information in the haystack.” United States v. Hsia, 24 F. Supp. 2d 14, 29-30 (D.D.C. 1998). In United States v. Saffarinia, the court relied on Hsia and agreed with the defense that “the government’s Brady obligations require it to identify any known Brady material to the extent that the government knows of any such material in its production of approximately 3.5 million pages of documents.” 424 F. Supp. 3d 46, 86 (D.D.C. 2020); see also United States v. Singhal, 876 F. Supp. 2d 82, 104 (D.D.C. 2012) (directing prosecutors to disclose the “identity (by Bates number) of the specific witness statements and documents” that are “producible as Rule 16(a)(1)(E)(i) documents material to preparing the defense, regardless of whether those documents are inculpatory or exculpatory”). The discovery in this case dwarfs that at issue in Hsia and Saffarinia, and the prosecution must identify information that is subject to Brady by doing more than pointing to another huge database.

This issue has already been litigated, repeatedly, in other January 6 cases. His demand for more is a demand to be treated better than the people at the Capitol, the people actually depicted in and/or who took the video.

The argument itself is largely an attempt to exploit the fact that the defendant was once the President and so interacted with all parts of government. As DOJ quipped in an October 24 letter:

To point out but a few of the exceedingly broad errors in your assertion, the prosecution team does not include the almost three million civilian, active duty, and reserve members of the Department of Defense; the 260,000 employees of the Department of Homeland Security (or its CISA component); or the Intelligence Community writ large. Furthermore, your attempt to serve Rule 17(c) subpoenas, ECF No. 99—definitionally reserved for non-party witnesses—on the House Select Committee’s successor entity and a member of the White House Counsel’s Office confirms your understanding that those entities are not members of the prosecution team.

It is not rooted in the actual evidence in the case or — as with virtually all the filings Trump’s teams have made — the actual charges against him.

That said, the associated filings are of some interest. It’s just that Trump’s team submitted them in the least useful way possible. I’ve put them below, in order.

Reading them together reveals that some of what Trump requested in his unclassified discovery request last night — such as the request for the classified backup to the 2016 ICA or the opportunity for foreign powers to hack the 2020 election — were already covered in DOJ’s motion to strike his CIPA 5 request.

Reading them together also shows a progression. As I’ve noted, his original request asked for:

43. Please provide all documents relating to communications or coordination by the Special Counsel’s Office and DOJ with any of the Biden Administration, the Biden Campaign, Hunter Biden, the Biden family, the Biden White House, or any person representing Joe Biden.

In the first response, DOJ addressed that question (and question 37(b) for materials on Executive Privilege) by describing five Executive Privilege waiver reviews

37b. The defendant was party to five miscellaneous matters regarding assertion of the executive privilege. Attachments to filings in those five matters included letters from the incumbent White House declining to invoke executive privilege over certain witness testimony. The defendant already has those materials.

Trump must have made a follow-up at the November 21 meet-and-confer, because DOJ addressed it again, saying that whatever he wants is not in the prosecution team’s possession and not covered by discovery obligations.

Requests 33, 40, 42, 43, and 44 seek information that exceeds the scope of our discovery obligations, is not within the possession of the prosecution team, and/or does not exist.

One interesting redaction in this most recent exchange pertains to Trump’s request for injuries of law enforcement on January 6.

2. If you intend to introduce evidence at trial of any injuries sustained to law enforcement or anyone else at the Capitol on January 6, 2021, please provide all documents regarding those injured during the protest at the Capitol, including medical records.

DOJ’s response to that is entirely redacted, suggesting that DOJ may well submit records of injuries, such as the heart attack Danny Rodriguez caused after being especially riled up at Trump’s rally.

Finally, of significant interest: Trump asks for the identities of all the people who’ve flipped.

16. Please provide all documents regarding offers of immunity, forgoing of prosecution, diversion, USSG 5K1.1 reductions, or any other consideration to persons under investigation or charged regarding activities related to January 6th.

DOJ included that request among those about which it said Trump was not entitled to discovery.

Requests 15-19, 34-36. All of these requests—regarding the pipe bomb investigation, offers of immunity to January 6 defendants, “Antifa,” sources, and various named and unnamed January 6 offenders—appear to be focused on others’ actions related to the January 6 attack on the Capitol. Many of them request information that exceeds the scope of our discovery obligations and/or is not within the possession of the prosecution team. To the extent that we possess any such materials, we have produced them to you. Relatedly, in our meet and confer, you stated that you believe that in certain other cases, the Department of Justice has taken a position inconsistent with the indictment’s allegations that the defendant is responsible for the events of January 6. We disagree. The Department’s position in other January 6 cases that the defendant’s actions did not absolve any individual rioter of responsibility for that rioter’s actions—even if the rioter took them at the defendant’s direction—is in no way inconsistent with the indictment’s allegations here.

Trump continues to argue he’s better than the members of his mob. And he’s trying to avoid being held accountable for any near murders his incitement caused.

August 11 DOJ letter accompanying first classified discovery; includes redacted reference to Secret Service at 6,

October 6 Trump letter addressing Document 1 and Document 5

October 23 Trump discovery letter with seven requests redacted (Unredacted copy)

October 24 DOJ response to classified discovery letter, describing scope of prosecution team

November 3 DOJ response to October 23 discovery letter rejecting most requests and telling Trump where to find some of it in discovery; this has a number of specific references to the requests in the October 23 letter

November 15 Trump discovery letter making broad requests for January 6 discovery

November 25 DOJ response to November 15 letter and November 21 meet-and-confer, providing additional responses to October 23 requests

Exhibit H (sealed; pertains to reason Bill Barr changed Public Integrity’s approach to voter fraud claims)

Exhibit I (sealed; follow-up to letter Molly Gaston and JP Cooney sent about PIN)

Exhibit J (sealed; involvement of National Security Division in January 6 cases)

Exhibit K (sealed; involvement from FBI WFO on January 2)

Exhibit L (sealed; involvement from FBI WFO on January 3)

Exhibit M (sealed; reference to DHS I&A as attempt to get to CISA Election Task Force; ODNI involvement)

Exhibit N (sealed; related to DHS involvement in March 2021 report on 2020 election)

Exhibit O (sealed; related to DHS involvement on January 6)

Abbe Lowell Calls James Comer’s Bluff

When I read Abbe Lowell’s taunting letter to James Comer (to which Politico’s Jordain Carney posted a link), agreeing to have Hunter Biden testify before the Oversight Committee on December 13 or any other time in December, so long as it is public, I couldn’t decide whether it is:

  • A good faith effort to correct the record, including regarding multiple false claims Comer has made
  • An epic bluff-call by a former impeachment lawyer
  • An effort to let Jamey Comer fuck up David Weiss’ prosecution some more
  • A bid to show an effort to cooperate with a subpoena, thereby undercutting any possible contempt referral
  • An insanely bad idea

To be sure, the tactic — offering to testify, so long as it is public — is not new. For example, in a last minute bid to stave off his trial, Steve Bannon belatedly offered to testify, asking to appear publicly. In response, investigators have usually simply insisted on a deposition.

But this comes with a whole bunch of dick-wagging about how pathetic Comer’s investigation is — how pathetic Republicans say it is.

It is no wonder so many news articles report your own Republican colleagues criticizing your proceedings and commenting that your time would be better spent on critical issues facing the country.4

4 Annie Grayer & Melanie Zanona, Biden Impeachment Inquiry End Game Comes Into Focus, but Moderate Republicans Still Not Sold, CNN (Nov. 6, 2023), https://www.cnn.com/2023/11/06/politics/impeachment-inquiryhouse-republicans/index.html (Rep. Don Bacon stated: “I think it’s better to let the election solve this . . . I know a lot of people say they want revenge. I don’t think it’s right for the country”; Rep. Doug LaMalfa stated: “It probably isn’t quite in the nice package with the bowtie on top of it yet”; Rep. Steve Womack echoed a similar sentiment: “I’ve got so many other things to worry about. That ain’t one of them”; Rep. Mike Rogers stated about the inquiry, “I don’t think anything about it.”); Aaron Blake, 7 Skeptical Republicans to Watch on Impeaching Biden, WASH. POST (Sept. 13, 2023), https://www.washingtonpost.com/politics/2023/09/13/7-republicans-watch-impeaching-biden/ (Rep. Ken Buck stated: “The time for impeachment is the time when there’s evidence linking President Biden—if there’s evidence linking President Biden—to a high crime or misdemeanor. That doesn’t exist right now”; Rep. Mike Lawler stated: “For me, with respect to impeachment, we’re not there yet. . . . It is not about focusing on the impeachment; it is a question of, do the facts and evidence warrant any further action.”); Alexander Bolton, House Conservatives Face Deeply Skeptical Senate GOP on Biden Impeachment, THE HILL (Sept. 13, 2023), https://thehill.com/homenews/senate/4203181-house-investigators-skeptical-senate-republicans-impeachmentinquiry/ (according to one Republican senator who requested anonymity to comment frankly on the Oversight inquiry, “I don’t see what the evidence is, what the charge is . . . I hate to see an impeachment every other year.”). [emphasis original]

Lowell has found quotes from six Republican Congressmen, enough to sink any impeachment vote (something the White House has demanded before making any personnel available to subpoena).

He did so in a letter also substantiating two past attempts at cooperation.

In spite of our misgivings about your motives and purpose, we have offered, on more than one occasion, to meet or speak with your Committee to discuss whether there was something we could do to understand the basis of your inquiry, provide relevant information, or expedite its conclusion.3 You never responded, but now, in what appears to be a Hail Mary pass with your team behind in the score and time running out, you have subpoenaed or demanded interviews of Hunter Biden; his uncle James; James’s wife, Sara; Hunter’s brother’s widow, Hallie; Hallie’s sister, Elizabeth Secundy; Hunter’s spouse, Melissa Cohen; his lawyer Kevin Morris; the art gallerist who endeavors to help Hunter earn a living; an acquaintance who purchased a painting of Hunter’s; three of Hunter’s former business partners; two Biden-campaign donors; an inmate convicted for his involvement in a tribal bond scheme that never involved Hunter; and last, but certainly not least, a disgruntled and incredible “whistleblower” (Tony Bobulinski), from whom Hunter disassociated almost as fast as he met him. Your fishing expedition has become Captain Ahab chasing the great white whale. [emphasis original]

3 See Feb. 9, 202,3 Letter From Abbe Lowell to Chairman James Comer (transmitted via e-mail); Sept. 13, 2023, Letter From Abbe Lowell to Chairman James Comer (transmitted via e-mail).

The letter also lays out an argument that Comer’s purported legislative interest is debunked by his exclusive focus on Bidens, not Trump’s.

You state that one of your purposes is to review how a President’s family’s business activities raise ethics and disclosure concerns to inform the basis for a legislative solution. But all your focus has been on this President’s family while turning a blind eye toward former President Trump and his family’s businesses, some of which the family maintained while serving in office—an area ripe to inform your purported legislative pursuits. Unlike members of the Trump family, Hunter is a private person who has never worked in any family business nor ever served in the White House or in any public office. Notwithstanding this stark difference, you have manipulated Hunter’s legitimate business dealings and his times of terrible addiction into a politically motivated basis for hearings to accuse his father of some wrongdoing.

And while he doesn’t cite his several efforts to correct fabrications Comer has made, he repeats an allegation substantiated in repeated letters to others — Jason Smith and Mike Johnson — in Congress.

We have seen you use closed door sessions to manipulate, even distort the facts and misinform the public. We therefore propose opening the door. If, as you claim, your efforts are important and involve issues that Americans should know about, then let the light shine on these proceedings. Indeed, even you stated that “Hunter Biden is more than welcome to come in front of the committee. If he wants to clear his good name—if he wants to come and say, you know, these weren’t shell companies, they actually did something—he’s invited today. We will drop everything.”5

5 @Newsmax at 3:05, X (Sept. 13, 2023) (emphasis added), available at https://twitter.com/newsmax/status/1701928094003511311?s=46&t=a0UGYR3ho6S39dDafp8SGg. [emphasis original]

Which is to say that if Comer refused this offer but insisted on compelled testimony anyway, Lowell would have plenty of ammunition to argue that he had attempted to cooperate, only to be rebuffed. Lowell has covered his bases against a lawsuit or even a contempt referral.

And that’s before you consider that Comer can’t legally enforce that subpoena without either legislative purpose (debunked by his exclusive focus on the Bidens) or — per a Trump OLC memo — a full congressional vote.

My question is what happens if Comer, cornered by Lowell’s taunts, takes him up on the offer.

There is zero chance, for example, that such a hearing would occur without Marjorie Taylor Greene accusing Hunter of sex trafficking, as she has twice already. There’s a good chance that Hunter, perhaps after four hours or so, would slip up and say something useful for David Weiss (but not before further substantiating Lowell’s argument that Republicans have made his prosecution an electoral ploy, which may be why Lowell specified that this had to happen in December).

But there’s also a great chance that such a hearing would again highlight that Comer refuses to call Rudy Giuliani and Lev Parnas to understand the root of their concerns. It would provide Hunter the opportunity to call out what he claims to be false claims by people like Tony Bobulinski. It might even provide Hunter a public opportunity to disclose what his team has learned about the treatment of the laptop — on a copy of which this entire stunt relies.

Abbe Lowell has raised the stakes for Comer’s own political future on his decision. It’s unclear how that will serve Hunter and his father.

Update: Comer insists Hunter testify at a deposition.

Hunter Biden is trying to play by his own rules instead of following the rules required of everyone else. That won’t stand with House Republicans.

Our lawfully issued subpoena to Hunter Biden requires him to appear for a deposition on December 13.

We expect full cooperation with our subpoena for a deposition but also agree that Hunter Biden should have opportunity to testify in a public setting at a future date.

Update: Jamie Raskin mocks Comer.

Let me get this straight. After wailing and moaning for ten months about Hunter Biden and alluding to some vast unproven family conspiracy, after sending Hunter Biden a subpoena to appear and testify, Chairman Comer and the Oversight Republicans now reject his offer to appear before the full Committee and the eyes of the world and to answer any questions that they pose? What an epic humiliation for our colleagues and what a frank confession that they are simply not interested in the facts and have no confidence in their own case or the ability of their own Members to pursue it. After the miserable failure of their impeachment hearing in September, Chairman Comer has now apparently decided to avoid all Committee hearings where the public can actually see for itself the logical, rhetorical and factual contortions they have tied themselves up in. The evidence has shown time and again President Biden has committed no wrongdoing, much less an impeachable offense. Chairman Comer’s insistence that Hunter Biden’s interview should happen behind closed doors proves it once again. What the Republicans fear most is sunlight and the truth.

Meanwhile, Miranda Devine at first questioned what Comer is afraid of before deciding that Hunter’s “expensive lawyers” don’t get to dictate terms.

And Lauren Boebert didn’t get the memo.


Donald Trump Confesses He Can’t Distinguish His Own Influence Ops from that of a Russian Spy

To understand the startling confession at the core of Donald Trump’s motion to compel discovery submitted last night, it helps to read a caveat included in Trump’s discovery request, but not included in this motion.

In a letter requesting the same things described in the motion to compel in discovery, Trump’s team admitted it was using a different definition of “foreign influence” than the one he himself adopted in Executive Order 13848 requiring the Intelligence Community to provide a report on any, “foreign interference that targeted election infrastructure materially affect[ing] the security or integrity of that infrastructure, the tabulation of votes, or the timely transmission of election results.”

Rather than just reports of attempts to tamper with election infrastructure to alter the vote count, Trump intended his discovery request to include efforts by foreign governments and non-state actors to influence US policy.

As used herein, the term “foreign influence” is broader than the definition of the term “foreign interference” in Executive Order 13848 and includes any overt or covert effort by foreign governments and non-state actors, as well as agents and associates of foreign governments and non-state actors, intended to affect directly or indirectly a US person or policy or process of any federal, state, or local government actor or agency in the United States.

A vast majority of Trump’s discovery requests claim to need backup about intelligence on potential compromises that could not have affected the election tabulation. Not a single one in the 37-page motion addresses the specific lies the January 6 indictment accuses him of telling:

dozens of specific claims that there had been substantial fraud in certain states, such as that large numbers of dead, non-resident, non-citizen, or otherwise ineligible voters had cast ballots, or that voting machines had changed votes for the Defendant to votes for Biden.

Here are some of the totally irrelevant things Trump is demanding:

  • The classified backup to the 2016 Intelligence Community assessment, which Trump claims was the source of his purported genuine concern about elections that led him to issue Executive Order 13848, when instead he was probably attempting to stave off a law, proposed by Marco Rubio and Chris Van Hollen, requiring stronger election protection measures
  • The backup to the Cybersecurity and Infrastructure Security Agency statement asserting that the election was the most secure in history (which led Trump to fire Chris Krebs by Tweet)
  • Details about the Solar Winds hack, which was made public after the CISA statement, and which is not known to have compromised any election infrastructure, but which Patrick Byrne offered as an excuse in real time to start seizing voting machines
  • Debates about the findings in the 2020 election report ultimately released that pertain to China’s influence operations, not interference operations
  • Details of a January 2 briefing John Ratcliffe gave Jeffrey Clark (which is not described in the indictment), which Trump insinuates is the reason that Clark strengthened language about election irregularities totally unrelated to the things described in the election report, even though — as the indictment notes — Ratcliffe, “disabused the Defendant of the notion that the Intelligence Community’s findings regarding foreign interference would change the outcome of the election”
  • The FISA Court opinion describing improper efforts to query 702 information regarding possible foreign influence — possibly directed at things like Nick Fuentes’ cryptocurrency donation and Charles Bausman’s ties to Russia — which wouldn’t have affected Trump’s lies at all

Not a single one of these items pertains to whether Ruby Freeman added votes in Fulton County, Georgia, whether 10,000 dead people voted in one or another state, whether non-citizens voted in Arizona, whether there was a vote dump of 149,772 illegal votes in Detroit, whether Pennsylvania received 700,000 more absentee ballots than they had sent out.

That is, not a single one of Trump’s main demands pertains to the specific lies he is accused of telling.

This stunt might have been effective if Trump were charged with moving to seize voting machines after the famous December 18 meeting, at which Byrne and Sidney Powell urged Trump to use EO 13848 and the discovery of the Solar Winds hack to seize voting machines. But that’s not in the indictment — the famed meeting is unmentioned. As I’ve previously noted, Powell is only in the indictment for the way in which Trump adhere to her views about Dominion, not for the December 18 meeting. In this request, Trump repeats an earlier request for investigations into Dominion in passing, but focuses his attention instead on Solar Winds.

Instead of asking for evidence pertaining to the actual lies Trump told, Trump argues that because he had the same goal and effect that Russia pursued in 2016 — to erode faith in democracy — it somehow means his own lies weren’t cynical, knowing lies.

Moreover, whereas the Special Counsel’s Office falsely alleges that President Trump “erode[d] public faith in the administration of the election,” the 2016 Election ICA uses strikingly similar language to attribute the origins of that erosion to foreign influence—that is, foreign efforts to “undermine public faith in the US democratic process.” Compare Indictment ¶ 2, with Ex. A at 1; see also id. at 6 (describing “Kremlin-directed campaign to undermine faith in the US Government and fuel political protest”).

The problem is that the lies Russia and Trump told in common in 2020 — primarily a false claim that Joe Biden corruptly fired a Ukrainian prosecutor — don’t have anything to do with the specific lies that Trump told to mobilize thousands of his followers to attack the Capitol.

That both Russia and Trump want to undermine democracy is not a specific defense to the charges against him.

Hunter Biden: Which Came First, the Chick Selling Sex or the Extortion of Campaign Dirt?

Darren Samuelsohn had a hilarious passage in his version of a story contemplating the prospect of Trump using his second term to seek revenge.

To his credit, unlike the NYT and WaPo versions of this story, he acknowledges that Trump already did this. He even manages to address maybe a quarter of the times when Trump did so, though always missing key details. For example, he describes that Trump fired Jim Comey as revenge, which led to the Mueller investigation.

Consider the firing of James Comey, who the president ousted less than four months into his first term following the FBI director’s public testimony that confirmed an active bureau investigation on potential collusion between Russia and the 2016 Trump campaign. The president’s move there ignited a chain of events leading to Special Counsel Robert Mueller’s appointment, which kept Trump’s White House stuck playing defense for a giant chunk of their four-year term and resulted in a costly series of guilty pleaslegal trials and court convictions for Trump associates that gave way to a series of controversial presidential pardons.

Samuelsohn even mentions “controversial” pardons! — if only in passing. But he doesn’t mention Trump’s concerted demand to prosecute Comey as a result, or the IRS investigation of Comey and Andrew McCabe that the IRS claims was just a wild coincidence.

The funny part is where Samuelsohn describes Rudy Giuliani’s efforts to dig up dirt on Joe Biden as something that, like the Comey firing, led to backlash: impeachment.

Another Trump personal lawyer, Rudy Giuliani, sparked the first House impeachment of the president in the aftermath of his mission to conjure up an investigation of the Biden family in Ukraine.

But then two topics — the Durham investigation and Trump’s revenge against Tom Emmer for voting to certify the 2020 election — and two paragraphs later, Samuelsohn introduces Abbe Lowell’s attempt to subpoena Trump as “another front.”

Or on another front, Hunter Biden’s lawyers earlier this month asked for a federal court’s permission to subpoena Trump, Barr and other senior Trump-era DOJ officials as they argue against “a vindictive or selective prosecution arising from an unrelenting pressure campaign beginning in the last administration, in violation of Mr. Biden’s Fifth Amendment rights under the Constitution.”

This is not “another front”! This is confirmation that the effort attributed here to Rudy continues to this day, is a central factor in the 2024 election to return to the White House.

As I noted, the requested subpoenas specifically ask for communications with, “attorney for President Trump (personal or other),” and the request for communications, “discussing any formal or informal investigation or prosecution of Hunter Biden,” should cover any copy of the Perfect Phone Call to Volodymyr Zelensky that Trump might have in his personal possession.

The subpoena is a request for records showing the tie between Rudy’s efforts and the still ongoing investigation into Hunter Biden, which has since morphed into the rationale for Republicans’ own impeachment stunt.

The tie is not imagined. Among other things, Lowell points to records showing then-PADAG Richard Donoghue scheduling a briefing with David Weiss’s team on October 23, 2020. The briefing transferred the FD-1023 created as a result of Bill Barr’s effort to set up an intake process for the dirt Rudy obtained from Russian agents and others.

In fact, all the details of the investigation that Joseph Ziegler has shared raise questions whether there would ever have been a Hunter Biden grand jury investigation were it not for the dirt Ukrainians — possibly downstream of and ultimately directly tied to Rudy’s efforts to obtain dirt on Hunter Biden — shared with DOJ in 2019.

To be sure, Ziegler claims credit.

In his original testimony to House Ways and Means, Zeigler described that he decided to investigate the former Vice President’s son based off a Suspicious Activity Report tied to a social media site involving sex workers. From there, he read about Hunter’s contentious divorce. And from that he decided to launch a criminal investigation.

I started this investigation in November of 2018 after reviewing bank reports related to another case I was working on a social media company. Those bank reports identified Hunter Biden as paying prostitutes related to a potential prostitution ring.

Also included in those bank reports was evidence that Hunter Biden was living lavishly through his corporate bank account. This is a typical thing that we look for in tax cases — criminal tax cases, I should say.

In addition, there was media reporting related to Hunter Biden’s wife, ex-wife, divorce proceedings basically talking about his tax issues. And I wanted to quote some of the things that were said in her divorce filing which was public record.

“Throughout the parties’ separation, Mr. Biden” — referring to Hunter Biden — “has created financial concerns for the family by spending extravagantly on his own interests, including drugs, alcohol, prostitutes, strip clubs, gifts for women with whom he had sexual relationships with, while leaving the family with no funds to pay legitimate bills.

“The parties’ outstanding debts are shocking and overwhelming. The parties have maxed-out credit card debt, double mortgages on both real properties they own, and a tax debt of at least $300,000.”

This is all the information that I had in my hand in November when I wanted to open this investigation.

His supervisor, Matt Kutz, treated the investigation of the former Vice President’s son as a sensitive matter and demanded more evidence before letting Ziegler open the investigation.

After discussing the case with my previous supervisor at the time, Matt Kutz, he made a decision to look into the case further before sending it — sending the case up for referral.


My manager at the time told me, “No, you cannot do that. That’s a tax disclosure issue.” I didn’t agree with him because there’s been multiple instances where we do that. That’s a normal part of our job. But he was my manager, and I wasn’t going to fight him on it, and he told me that I had to open this up the normal tax administrative way that we would do [for] these cases.


[H]e said a political family like this, you have to have more than just an allegation and evidence related to that allegation. In order for this case to move forward, you basically have to show a significant amount of evidence and similar wrongdoing that would basically illustrate a prosecution report.

So he’s basically telling me that I have to show more than just non-[filed] tax returns and the information from the ex-wife in the divorce proceedings.

During Democrats’ questioning, Ziegler described how persistent were his efforts to find some basis to open an investigation into Hunter Biden.

Mr. [Ziegler]. My initiation packet, so sending the case forward to get — we call it subject case. It’s an SCI. It’s elevating the case to actually working the investigation.

My first one showed the unfiled returns and the taxes owed for 2015 and that was it on my first package. So that was the wrongdoing that we were alleging.

And my supervisor goes: You don’t have enough. You need to find more.

So I kept digging for more and more. And even after that point, he goes: You haven’t found enough.

So I ended up searching bank reports that [I] ran on the periphery of what we were looking at.

So I ran bank reports for Burisma, and in those bank reports I had found additional payments that Hunter had received. And then at that point I had found that Hunter did not report the income for 2014 related to Burisma.

So now I had a false return year. So that alone — it was basically so much evidence that I put in there — allowed us to elevate the case.

It took Ziegler three attempts before he was able to show enough evidence of wrong-doing that Kutz would agree to send the referral to DOJ Tax. That’s what led to the decision — at first, Ziegler attributed the decision to Bill Barr personally, though subsequently retracted that claim — to merge his IRS investigation with one Delaware had opened in January 2019.

So after three of these initiation packages, he finally allowed me to push this forward to DOJ Tax for their review.

So the way that our grand jury cases — or the way — I’m sorry. The way that our cases work is when the case is referred from IRS to DOJ Tax, the case has to go through our ASAC and SAC, and then it goes to DOJ Tax where they review and approve it and send it to the appropriate venue or jurisdiction.

So in [or] around March or April of 2019, the case went up to DOJ Tax.

And at that time we were told that William Barr made the decision to join two investigations together. So at that point in time I had found out that Delaware had opened up an investigation related to the bank reports and that that occurred in January of 2019, so 2 months after I started mine.

So when I found out about their case and was told that we had to merge the two, I did a venue analysis. I showed them that, “Hey, the venue’s in D.C. It’s not in Delaware. We need to work this in D.C.” But, ultimately, I was overruled, and it was determined to send the case, join the two case together, and work everything under Delaware. [my emphasis]

Here and elsewhere, Ziegler (working from memory) obscures details of this timeline: about when he came to learn of the Delaware investigation and when he submitted his finalized package for DOJ Tax.

In an email Ziegler sent in April 2019, though, he memorialized that, “Approx. February 2019 — My SSA advised me about the Delaware USAO looking into Robert Doe subsequent to the [Suspicious Activity Report]” on which Ziegler himself had predicated his investigation. That same email described submitting the package to DOJ Tax on April 12, 2019.

Two weeks later, his supervisor relayed the news that the case would end up in Delaware.

Jason Poole telephoned me and advised after inter‐department discussions well above his level, it is highly likely the Robert Doe case will go to the Delaware USAO for investigation.

So while Ziegler may have decided to pursue the former Vice President’s son based on payments to sex workers and divorce records before Delaware opened an investigation, DOJ Tax had not even considered whether this merited a criminal investigation until April 2019, at which point someone high up — possibly even the Attorney General himself — decided Delaware would oversee the case.

By that point, Delaware had been investigating for up to three months, and Ziegler had known that for two months.

That’s important because, if we can believe Johnathan Buma (I raised some cautions about his claims here), the FBI got a tip about Hunter Biden from two Ukrainians with ties to that country’s Prosecutor General’s Office in January 2019.

In January, 2019, DYNAMO, ROLLIE and THE ECONOMIST were taken to the US Attorney’s Office in downtown Los Angeles, where they presented severd of these schemes to an Assistant United States Attorney (AUSA), who was interested in pursuing money laundering cases in violation of the FCPA, which implicated US entities or persons. THE ECONOMIST’s presentation included detailed information concerning several multi-million and multi-billion dollar schemes. The information was based on an extrapolation of open-source information from Ukraine, as well as insight from THE  ECONOMIST’s consulting work in the PGO and ROLLIE’s foundation. One of the described scenarios alleged Hunter Biden (Hunter) had been given a lucrative position on the board of directors of the energy company, Burisma Holdings Limited (Burisma), and was likely involved in  unreported lobbying and/or tax evasion.

This approach from people affiliated with Ukraine’s Prosecutor General’s Office (my earlier post provides descriptions of those ties) came months after Rudy Giuliani first tasked Lev Parnas with finding this dirt in November 2018 and after Trump had gotten personally involved.

Later that month [on December 6], I attended a Hanukkah celebration at the White House where Giuliani and Trump were both present. Trump approached me briefly to say, “Rudy told me good things. Keep up the good work.” Then he gave me a thumbs-up in approval.

By January 2019, Parnas was in communications with both Viktor Shokin and Yuri Lutsenko, both of whom might have had ties to Rollie and the Economist. On January 26, Lutsenko shared a package of information on Burisma that, again, has similarities to what Rollie shared that same month.

According to Buma, sometime after the January 2019 presentation Rollie and The Economist made to the Los Angeles US Attorney’s Office, Buma submitted an FD-1023 about their package and spoke to two FBI case agents located in Baltimore on the already ongoing investigation into Hunter Biden about it.

After receiving the presentation from ROLLIE and THE ECONOMIST, THE ECONOMIST provided me a thumb drive with some supporting documentation, much of which was in the Ukrainian language, which I do not speak. After I submitted my FD-1023 reports on this information, I was put in touch with two agents working out of the Baltimore office on a case based in Delaware involving Hunter. I spoke on the phone with these agents, who were very interested in the information due to its relation to their ongoing investigation that was mostly involving allegations of Hunter’s involvement with drugs and prostitution. Information derived from ROLLIE and THE ECONOMIST had previously been found to be credible, so this was handled carefully and quickly transferred over to the agents in Baltimore and was serialized in their case file.

As Buma described it, by the time this information showed up in the press, it had become clear that Rollie and the Economist shared the information for influence purposes tied to Joe Biden’s run for the presidency, not law enforcement.

[T]he derogatory information concerning the Bidens and Burisma quickly emerged in domestic US. media, suggesting that it was being provided for political influence rather than law-enforcement purposes.

But that didn’t prevent the Ukrainians from being invited, some time after June 26, 2019, to attend an event associated with the White House at which Rollie gave Mike Pompeo the same package of derogatory information on Hunter Biden. And somewhere along the line, Buma’s primary source who introduced them to the Los Angeles US Attorney’s Office had direct contact with Rudy Giuliani.

The precise relationship between Rollie and The Economist and Rudy’s efforts, started month earlier, remains obscure. But both had begun well before Ziegler’s pitch to DOJ Tax to investigate Hunter Biden criminally, and it’s likely that Delaware had the FD-1023 from the Ukrainians before DOJ Tax approved the investigation.

And by that point, in April 2019, Ziegler’s supervisor — the same guy who insisted he needed more than payments to sex workers to open an investigation into a politically sensitive figure — started documenting the demands for just such an investigation.

Around the same time in 2019, I had emails being sent to me and the Hunter — and the prosecutors on the case, the Hunter Biden prosecutors, from my IRS supervisor. So this was Matt Kutz still.

From what I was told by various people in my agency, my IRS supervisor, Matt Kutz, created memos which he put in the investigative files regarding the investigation potentially violating the subject’s Sixth Amendment rights. He also referred to Donald Trump’s tweets at the time.


Q Okay. You’re talking about 2019. You were mentioning the fact that there was a George Murphy that was writing memos or emails and documenting some of his conclusions that were on the other side regarding this case.

Could you tell us more about him? What’s his title and who is he and how does he relate to you in terms of your chain of command?

A So it was actually Matthew Kutz. He was my supervisor at the time and from the articles that he was sending me, I would say he had more of a liberal view than I had and it was pretty obvious from the things he would send me and discuss. And that’s just me making an observation.

So I later found out about these memos that were put in the file regarding the issues that he saw with the investigation, the fact that we even had it opened. So I only learned about those after. And then it came to a point to where he’s sending us so many media articles about different issues that I had to tell him stop, please.

And I had to go around him. And that’s when I went to my ASAC at the time, George Murphy, who was above him.

MAJORITY COUNSEL 2. Off the record.

MAJORITY COUNSEL 1. Off the record. [Discussion off the record.]

MAJORITY COUNSEL 1. On the record.

Mr. [Ziegler]. So these articles were a lot about — were a lot of articles regarding Trump and getting a fair investigation and things related to that, Trump’s tweets and stuff like that. So, that’s what drew me to my conclusion.

BY MINORITY COUNSEL 1: Q What was the purpose behind him sending you the Trump tweets? What was he trying to get at, or was he trying to give you more information for your case? Why would he send those, or do you know?

A Yeah, I think he was bringing up concerns with potentially us prosecuting the case down the road, potential issues we’re going to incur. I don’t remember the exact email that he sent that caused me to be — that he had to stop sending me some of the news articles, because it wasn’t even the fact that he was sending me these news articles. It was the opinion he was providing in those emails that I did not agree or that I did not — not agree with but did not think was appropriate.

Gary Shapley replaced Kutz in 2020 — possibly because Kutz insisted on documenting the demands from the President for Ziegler’s thinly-predicated investigation — around the same time Bill Barr set up a means to ingest Rudy’s dirt.

But in 2019, Kutz was documenting in real time the problem with pursuing the son of Donald Trump’s opponent while Donald Trump demanded such investigations via Tweet.

It’s in the case file.

Trump’s demands for an investigation into Hunter Biden were deemed by the IRS SSA to be problematic influence on the case in 2019. Yet that investigation continues, now bolstered by Special Counsel status, and is the basis for the GOP impeachment pitch.

Samuelsohn’s rag has a reporter, Stephen Neukam, covering the GOP impeachment stunt almost half time (though Neukam apparently hasn’t bothered to cover the Scott Brady testimony that lays out even more details of how Barr set up a means to filter Rudy’s dirt into the Hunter Biden investigation, evidence that — contra Ziegler — Barr was “weigh[ing] in, or seek[ing] updates on the investigation after those cases were joined”). Barr has confirmed, on the record, knowledge of how information was shared from Brady to Weiss.

Yet Samuelsohn describes Rudy’s intervention as something past, something unrelated to the future prospect of Trump ordering up investigations into his rivals.

You cannot understand the GOP impeachment pitch — you cannot claim to be doing journalism on the Republican effort to impeach Hunter Biden’s father — unless you understand the ties between Rudy’s efforts and the Hunter Biden investigation.

You can write all you want about how institutional guardrails might stymie Trump’s efforts to politicize DOJ in the future. But if you gloss over evidence that those guardrails failed in Trump’s past Administration, if you ignore how Trump’s success at politicizing DOJ continues to have repercussions to this day — indeed, continues to be a central issue in the election — then you’re not really addressing the threat Trump poses, past and future.

Update: Fixed date of October 23 briefing.

The MAGA Tourist Geofence and the Violent Confederate Flag-Toting Geofence

By my rough count, Judge Tanya Chutkan has presided over the cases of more than 25 January 6 defendants, in addition to Donald Trump. Nevertheless, Trump keeps trying to lecture Chutkan about what happened, often by pointing to reports from journalists who have not otherwise covered the investigation closely.

Contrary to their false claims about how much video she has seen, Judge Chutkan knows these details far better than Trump’s attorneys.

For example, Trump keeps pointing to a December 2021 piece from Will Arkin to argue, using very dated numbers regarding the investigation, just one percent of his mobsters qualify as insurrectionists.

The Secret Service and the FBI estimated that at least 120,000 Americans gathered on the Mall for President Trump’s speech. 6 Government agencies estimated that about 1,200 people—at most 1% of the size of the crowd gathered to listen to President Trump—entered the Capitol, and a smaller percentage than that committed violent acts. 7 Thus, we can easily conclude that well over 99% of the attendees at President Trump’s speech did not engage in the events at the Capitol. Moreover, as the Indictment recognizes, a crowd had gathered at the Capitol before President Trump finished speaking, further proving he had nothing to do with those events.

6 William M. Arkin, Exclusive: Classified Documents Reveal the Number of January 6 Protestors, NEWSWEEK (Dec. 23, 2021), at https://www.newsweek.com/exclusive-classified-documentsreveal-number-january-6-protestors-1661296. The January 6 Committee estimated the crowd on the Mall at 53,000, while President Trump estimated it at 250,000. Compare Final Report, SELECT COMMITTEE TO INVESTIGATE THE JANUARY 6TH ATTACK ON THE UNITED STATES CAPITOL (Dec. 22, 2022), 585, at https://www.govinfo.gov/content/pkg/GPO-J6-REPORT/pdf/GPO-J6-REPORT.pdf with Read Trump’s Jan. 6 Speech, A Key Part of Impeachment Trial, NPR (Feb. 10, 2021), at https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-ofimpeachment-trial (emphasis added).

7 Id. (“[T]he facts seem to indicate that as few as one percent of the people who were there fit the label of insurrectionist.”).

There are a slew of problematic assumptions in Arkin’s piece (as well as the follow-up piece that appears to be the actual source cited in footnote 7): about the relationship between militias and others, about the role of non-militia organized groups like QAnon or anti-vaxxers, about the role and increasing percentage of military participants.

The most important misconception is that only people who entered the building, as distinct from the often more violent crowds outside it or Proud Boy seditionists orchestrating things from afar, could be an insurrectionist.

Plus, Arkin’s 2021 numbers were outdated at the time — most outlets put the number of insiders at 2,000 to 2,500 at the one year anniversary and the Sedition Hunters have identified 3,200 specific people who went inside the Capitol (though this includes people, including at least one WaPo journalist, who weren’t rioters).

Given Trump’s reliance on such outdated numbers, however, I wanted to look at a filing in the latest challenge to one of the geofence warrants used in the investigation, this time from Isreal Easterday, a Confederate-flag toting rioter who sprayed two cops before entering the Capitol through the east door.

There have already been two failed challenges to geofence warrants used in the investigation. In August 2022, then-Chief Judge Beryl Howell rejected Matthew Bledsoe’s challenge to a geofence of those who live streamed to Facebook during the riot; he is appealing his conviction, but not that ruling. In January, then-presiding FISA Judge Rudolph Contreras rejected David Rhine’s challenge to the Google geofence tied to voluntary use of Google’s Location History service (there’s no FISA component to this, but FISA judges see more novel Fourth Amendment issues). Rhine does appear to be including that ruling in his appeal, in which his initial brief is due in February.

Like Rhine, Easterday is challenging the Google geofence, but from a Fourth Amendment standpoint, he is different than Rhine in two key ways. First, the investigation into Rhine started from some tips called in as early as January 10, 2021; the FBI didn’t need the Google geofence to find him, though it made it easier to pinpoint video of his path through the Capitol.

With Easterday (probably because two distinctive aspects of his appearance changed that day — he dropped his flag and took off his hat — making it harder to track him), the first really good lead on his identity was the geofence.

The second difference between Rhine and Easterday arises from the technicalities of how the FBI did the geofence.

The FBI did three rounds of geofence with Google. In the first, starting with a January 13, 2021 warrant to Google, they:

  • Obtained the identifiers for all the phones that hit the geofence during the riot
  • Took out the identifiers that were present in the building in the 15 minutes before and after the riot (assuming those were people who were lawfully present in the Capitol)
  • Sorted out hits that were in places (for example, areas where surveillance footage showed no rioters to be present) inconsistent with unlawful activity
  • Eliminated identifiers without at least one hit entirely within the Capitol factoring in margin-of-error radius
  • Added back in identifiers with lower confidence radius that deleted Location History with the week after the attack
  • Asked Google to deanonymize that data

For the second round, they submitted a second request for deanonymization on April 14, based on the logic that those for whom there were only low confidence hits within the Capitol would be high confidence hits for the larger restricted area.

Based on the same logic, on May 21, 2021, the FBI obtained a second geofence warrant to include (per Easterday’s filings) the entire restricted area on January 6.

This time, to cull the data, they:

  • Obtained the identifier for all the phones that hit the geofence during the riot
  • Removed identifiers previously deanonymized
  • Took out the lawfully present identifiers either voluntarily identified by Congressional offices or obtained by law enforcement
  • Removed identifiers present in the 15 minutes before or after the riot
  • Eliminated identifiers without at least one hit entirely within the restricted grounds
  • Asked Google to deanonymize that data

Rhine’s phone identifier was included in the first batch of identifiers the FBI asked to be deanonymized, a group of about 1,500 identifiers; Easterday’s was not. His phone was included in the second batch deanonymized, an additional 2,200 identifiers obtained in the first warrant. His phone was also IDed in the second warrant, but by that point had already been deanonymized.

The details of how the Google geofence worked were described in filings in the Rhine case (see this post and this post), but because Easterday was not identified until the second batch, the second cull gets more attention in Easterday’s filings.

Easterday did enter the Capitol. There are pictures of him wandering hallways and stairs. On October 26, a jury convicted him of trespassing inside the Capitol, 40 USC 5104, along with the more serious assault and riot felonies he committed outside the building.

Easterday was only inside the Capitol itself for 12 minutes — he entered at 2:39 and exited at 2:51; Easterday entered three minutes before Rhine but left 13 minutes before Rhine. But he would have been at the east door — not inside the Capitol, but helping to violently break into it — for at least 22 minutes; the assault on one of the cops was captured in video that starts at 2:17.

There are a number of possible explanations for why Easterday phone would not have had a high confidence hit inside the Capitol geofence but did trigger the broadened geofence. For example, the original hit or hits on Easterday’s phone may have been in a location (such as the east door) where the confidence radius of the location was partially outside the Capitol itself. Some of the relevant hits were surely entirely within that area outside the Capitol but inside the restricted area that day. As the government noted in their response to this challenge, being in that area was also a trespassing crime, 18 USC 1752, even if DOJ charged fewer of the people who were in that area. The jury convicted Easterday of that crime, too.

The government provided a supplement answering specific questions Chief Judge James Boasberg posed after the guilty verdict that provides more possible explanations why Easterday did not trigger the geofence within the building at high confidence. For example, it describes that iPhones capture a lot less activity in Location History than Androids do.

[Location History] is sometimes collected automatically, but is primarily and most frequently collected when a user is doing something with his or her device that specifically involves location information (such as following Google Maps directions or taking photographs or videos that record location as part of their metadata).

Moreover, in the government’s experience examining Google LH returns, the range of activities that generate a LH point is narrower on Apple’s iPhones than Android phones. Apple iPhones apparently collect LH data primarily when the user is specifically using Google Maps.


In contrast, Android phones can collect LH data when the user uses a wider array of Google-based applications, or even when the device is not in use at all, such as when it is sitting on a user’s bedside table overnight. Additionally, if an Android phone detects that a user is moving, the Android phone specifically and automatically requests location data from the server about every two minutes, leading to a LH data point being collected by Google. However, if the phone determines that the user is standing relatively still, or remaining within the same Wi-Fi network’s range, Android phones will request location data much less frequently, as the phone is effectively not moving. Similarly, devices will not automatically request location data from the server—or will do so less frequently—when they are low on battery.

Easterday appears to have made a call while inside the building (which would trigger a different kind of location data, but data that DOJ only obtained with individualized warrants), but that’s less likely to be captured in Location History than taking a picture would.

Judge Boasberg’s request for more information — an order he made after the guilty verdict — appears to stem, in significant part, from the fact that FBI’s initial exclusion set of 215 people is obviously a mere fraction of the people who were lawfully in the Capitol that day.

(2) how could the Control List searches for the Initial Google Geofence Warrant have generated hits for only 215 unique devices/accounts when Google applications are so ubiquitous and presumably between 1,500-2,000 people were lawfully present in the Capitol building in the time periods before and after the riot?

It its earlier filings, DOJ used a dated stat that only 30% of Google users actually use the Location History service, a service that takes several steps to turn on. In this filing, DOJ argues that as the proportion of iPhone users increase, the number of people who trigger Location History will be smaller still, unless they’re using Google maps.

Boasberg is suggesting (and DOJ is not contesting) that their initial exclusion effort may only have included about 15% of those lawfully in the Capitol. While there would be some subset of people lawfully present who weren’t excluded in the first batch (people who were not moving in the 15 minutes before and after but who fled or took pictures during the riot, for example), this filing suggests all these numbers are low — very low.

If just one third of the people who entered the building could be expected to trigger the Google geofence, then the number who entered may be well over 4,000 (a reasonable number given the number Sedition Hunters have IDed).

If just a third of the people who were at the Capitol but not necessarily taking pictures inside it triggered the Google geofence, that number might be closer to 7,000 additional bodies, including those assaulting cops. And there could be another 23,000 people outside the Capitol — some no more than MAGA tourists, but others among the most violent people that day.

Using the Arkin numbers that were outdated when he published them in December 2021, Trump claims that, “we can easily conclude that well over 99% of the attendees at President Trump’s speech did not engage in the events at the Capitol.”

That’s not what the geofence shows. Using the same 120,000 number he uses for his own calculations, about one in ten were right at the building and a quarter may have made it to restricted ground, and the numbers could be double that.

One thing is clear though: the violent mobsters literally carrying the banner of insurrection as they attack cops may not be the ones you’ll find taking pictures inside the Capitol. And once you figure that out, the numbers of potential Trump insurrectionists starts to grow.

And Judge Chutkan knows that.

Take, Robert Palmer, whom Trump raised to complain that Chutkan had presided over the prosecution of someone who said he went to the Capitol at Trump’s behest, where he serially assaulted cops because he believed he needed to stop the voter certification. Robert Palmer never entered the Capitol. But it’s quite clear he believes Trump sent him.

Update: Distinguished between the two trespassing crimes to show one can be applied to both locations.

Timeline Easterday Google Geofence Challenge

June 30, 2023: Motion to Compel, Declaration

August 22, 2023: Opposition Motion to Compel

September 26, 2023: Motion to Suppress Geofence

October 10, 2023: Opposition Motion to Suppress

October 17, 2023: Reply Motion to Suppress

October 26, 2023: Guilty Verdict

November 25, 2023: Supplement Opposition Motion to Suppress