There were two reports yesterday that relate to something I’ve been thinking about: The likelihood that most, if not all, of any more Trump-related January 6 charges will be delayed, at least until after his trial next year.

The first is a WaPo report that Jack Smith’s office withdrew a subpoena for records and testimony relating to Save America PAC — the fundraising Trump did off of false claims about voter fraud, which he has since used to pay lawyers and other things unrelated to the claims he made in raising the money.

The withdrawal of the subpoena earlier this month indicates Smith is scaling back at least part of his inquiry into the political fundraising work that fed and benefited from unfounded claims that the election was stolen, said the people, who spoke on the condition of anonymity to discuss an ongoing criminal investigation.

Save America was still working to gather all of the records sought in the subpoena when it was notified by Smith’s office that the demand for information had been withdrawn, two of the people familiar with the matter said.

[snip]

Broadly, the subpoenas and related interviews by Smith’s investigators sought information about the post-election, pro-Trump fundraising, and what people inside Save America and other groups knew about the veracity of the claims they were making to raise money, the people familiar with the matter said.

[snip]

While interviewing potential witnesses associated with Trump, Smith’s prosecutors have asked pointed questions about who is paying for their lawyers and why, people familiar with the questions have said. Trump advisers have said the Save America PAC, which raises most of its money through small-dollar contributions by Trump supporters across the country, is footing the legal bills for almost anyone drawn into the Trump investigations who requests help from the former president and his advisers.

[snip]

Four people with knowledge of the investigation said prosecutors had not asked questions about fundraising in recent months, after several subpoenas and witness interviews on that topic earlier in 2023.

Relatedly, while Jack Smith’s team had raised Stan Woodward’s payment arrangement when they first raised his conflicts with Chief Judge James Boasberg in June, it has not come up in the conflict review before Judge Cannon in Florida (the follow-up hearing to which is scheduled for Friday).

It’s certainly possible that something about the stage of the election has led DOJ to back off this focus. It’s equally possible DOJ has reviewed the advice given by Trump’s campaign finance lawyers, Jones Day, in 2020 and decided that advice of counsel would make charges unsustainable.

Then there’s this fascinating Bloomberg discussion, featuring abundant quotes from Zach Terwilliger, the son of George Terwilliger, Mark Meadows’ lawyer, about frustration among defense attorneys in the case regarding Smith’s uncertain instructions regarding whether witnesses are just that — witnesses — or also subjects of the investigation.

Three defense lawyers representing people sought for voluntary interviews say they’re frustrated that special counsel Jack Smith’s team insists on labeling their clients subjects without providing additional detail as to where they fit in the case or whether they could become a target. They’ve asked to remain anonymous to discuss sensitive matters.

Justice Department guidance doesn’t define what a witness is and prosecutors prefer the flexibility of the broad subject label, which covers anyone within the scope of a grand jury investigation.

Yet Smith’s search for corroborating witnesses aimed at proving the 2020 election case against the former president pressures prosecutors to incentivize people to talk, but without exposing themselves to counterattacks from defense lawyers and Trump supporters. How they navigate that balancing act could help shape the legal fate of Trump and his allies.

“It is an exercise in understandable murkiness. And it’s more complicated here,” said Jim Walden, a former federal prosecutor who’s now a criminal defense attorney. “Anyone in the Trump administration has at least potential liability if they helped him form strategy about his election loss.”

By sticking strictly to the subject designation, Smith’s team retains the ability to charge individuals who appear innocent but later turn out to have liability, while protecting itself from accusations they baited people into talking. At the same time, they’d risk undercutting their mission of expediting the Trump trial, as defense lawyers insist on negotiating drawn-out immunity deals before an interview. [my emphasis]

While the Bloomberg piece referes to a “mission of expediting the Trump trial,” neither of these articles mentions something that, to me at least, seems obvious: Whether or not a jury convicts Trump next spring, if Trump wins the presidential election, none of this may matter. The criminal exposure of Trump’s associates won’t matter, because any that remained loyal would just be pardoned, as Paul Manafort and Roger Stone and Mike Flynn and George Papadopoulos and Steve Bannon were pardoned during Trump’s first term.

While I could imagine DOJ charging a handful of people who linked the crime scene to Trump before the election, most everything else would simply expose parts of the investigation that would otherwise be better kept quiet.

Which adds yet another reason why we can’t expect to understand the steps Jack Smith may still be taking: because on top of all the other reasons prosecuting a former and potentially future President is unprecedented, the likelihood that he would just pardon himself out of any further mess is part of it.

No one seems to care anymore: but there are a good many Trump associates — not just his unindicted co-conspirators — who bear some responsibility for what happened on January 6, 2021. But DOJ may have decided it makes not sense to prosecute any of them until there’s certainty, at the very least, about Trump’s fate.

Deep into one version of what is referred to as the “Hunter Biden” “laptop,” (according to reports done for Washington Examiner by Gus Dimitrelos*) there’s a picture of a check, dated November 14, 2018, for $3,400, paid to a woman with a Slavic name. The check bears a signature that matches others, attributed to Hunter Biden, from the “laptop” also attributed to him. Along with a line crossing out Hunter’s ex-spouse’s name on the check, the check was marked on the memo line: “Blue Water Wellness” along with a word that is illegible–possibly “Rehab.”

The check appears in a chat thread, dated November 26, 2018, apparently initiated to set up tryst with an escort in New York  City. Just over 12 hours after setting up that tryst, the Russian or Ukrainian woman who manages the escort service, Eva, wrote back, asking Hunter if he was in New York, because she had a problem with his check, that $3,400 check dated twelve days earlier. Hunter was effusively apologetic, and offered to pay the presumed sex worker via wire, because it’s the only way he could be 100% certain it would get to her. Shortly thereafter, he sent two transfers from his Wells Fargo account, $3,200 plus $30 fees, directly to the woman’s bank account, and $800 via Zelle drawn on Wells Fargo.

Those transfers from Hunter Biden’s Wells Fargo account to a presumed sex worker with a Slavic name took place between the day, October 31, 2018, when IRS Agent Joseph Ziegler, newly arrived on IRS’ international tax squad, launched an investigation into an international online sex business and the day, December 10, 2018, when Ziegler would piggyback off that sex business investigation to launch an investigation into Hunter Biden. The Hunter Biden investigation was initially based off a Suspicious Activity Report from Wells Fargo sent on September 21, 2018 and from there, quickly focused on Hunter’s ties to Burisma, precisely the investigation the then President was demanding.

Understand: The entire five year long investigation of Hunter Biden was based off payments involving Wells Fargo quite similar to this one, the check for $3,400 to a sex worker associated (in this case, at least) with what Dimitrelos describes as an escort service.

Research on the company yielded bank reports indicating that [Hunter Biden] made payments to a U.S. contractor, who also had received payments from that U.K. company.

Only, this particular payment — the need to wire the presumed sex worker money to cover the check — ties the escort service to one of the businesses of former Fox News pundit Keith Ablow: Blue Water Wellness, a float spa just a few blocks down the road from where Ablow’s psychiatric practice was before it got shut down amid allegations of sex abuse of patients and a DEA investigation. Emails obtained from a different version of the “laptop” show that on November 13, Blue Water Wellness sent Hunter an appointment reminder, albeit for an appointment on November 17, not November 14. That appointment reminder is the first of around nine appointment reminders at the spa during the period.

The tryst with the presumed sex worker with the Slavic name does appear to have happened overnight between November 13 and 14.  Between 1:58 and 6:33AM, there were two attempts to sign into Hunter’s Venmo account from a new device, five verification codes sent to his email, and two password resets, along with the addition of the presumed sex worker to his Zelle account at Wells Fargo, which he would use to send her money over a week later. All that makes it appear like they were together, but Hunter didn’t have his phone, the phone he could use to pay her and so tried to do so from a different device. Maybe, he gave up, and simply wrote her a check, from the same account on which that Zelle account drew.

None of which explains why he appears to have written “Blue Water Wellness” on a check to pay a presumed sex worker. Maybe he was trying to cover up what he was paying for. Maybe he understood there to be a tie. Or maybe it was the advertising Blue Water did at the time.

Deep in a different part of the laptop analyzed by Dimitrelos, though, a deleted invoice shows that Hunter met with former Fox News pundit Keith Ablow on the same day as Hunter apparently wrote that check to the presumed sex worker. The deleted invoice reflects two 60-minute sessions billed by Baystate Psychiatry, the office just blocks away from the float spa.

Emails obtained from a different version of the “Hunter Biden” “laptop” show that at some point on November 26, 2018, as Hunter first arranged a tryst in New York City and then, no longer in New York, sent a wire directly from Wells Fargo to the presumed sex worker, someone accessed Hunter’s Venmo account from a new device — successfully this time — one located in Newburyport, MA, where former Fox News pundit Keith Ablow’s businesses were.

There are a number of things you’d need to do to rule out the possibility of Russian involvement in the process by which a laptop purportedly belonging to Hunter Biden showed up at the Wilmington repair shop of John Paul Mac Isaac, from there to be shared with Rudy Giuliani, who then shared it with three different Murdoch outlets and a ton of other right wing propagandists, many of them members of Congress.

One of those would be to rule out that any of the sex workers tied to this escort service had a role in compromising Hunter Biden’s digital identity, thereby obtaining credential information that would make it easy to package up a laptop that would be especially useful to those trying to destroy the life of the son of Donald Trump’s opponent. There’s no evidence that any of the sex workers were involved, but throughout 2018, there are a number of device accesses involving Hunter’s Venmo account, the iCloud account packaged up on “the laptop,” and different Google accounts — including between the day on November 13 when Hunter appears to have met the woman with the Slavic name and the date on November 26 when he wired her money — that should at least raise concerns that his digital identity had been compromised. I’ve laid out just a fraction of them in this post and this post, both of which focus on the later period when Hunter was in the care of the former Fox News pundit.

If you wanted to compromise Hunter Biden, as certain Russian-backed agents in Ukraine explicitly did, doing so via the sex workers, drug dealers, and fellow junkies he consorted with in this period would be painfully easy. Indeed, in Hunter’s book, he even described other addicts walking off with his, “watch or jacket or iPad—happened all the time.” Every single one of those iPads that walked away might include the keys to Hunter’s digital life, and as such, would be worth a tremendous amount of money to those looking to score their next fix. To rule out Russian involvement, you’d have to ID every single one of them and rule out that they were used for ongoing compromise of Hunter or, barring that, you’d have to come up with explanations, such as the likelihood that Hunter was trying to pay a sex worker but didn’t have his phone with him and so used hers, for the huge number of accesses to his accounts, especially the iCloud account ultimately packaged up.

Of course, explaining how a laptop purportedly belonging to Hunter Biden showed up at Mac Isaac’s shop would also require explaining how a laptop definitely belonging to Hunter Biden came to be left in former Fox News pundit Keith Ablow’s possession during precisely the same period when (it appears) Hunter Biden’s digital life was getting packaged up, a laptop Ablow did nothing to return to its owner and so still had when the DEA seized it.

Bret Baier lied about the Hunter Biden laptop

Given the unanswered questions about the role of a former Fox News pundit in all this, you’d think that Fox personalities would scrupulously adhere to the truth about the matter, if for no other reason than to avoid being legally implicated in any conspiracies their former colleague might have been involved with, or to avoid kicking off another expensive defamation lawsuit.

Sadly, Bret Baier couldn’t manage to stick to the truth in his attempt to sandbag former CIA Director Leon Panetta on Friday. Baier debauched the gravity of an appearance purportedly focused on the Hamas attack and aftermath,  with what he must have thought was a clever gotcha question about a letter Leon Panetta signed in October 2020 stating the opinion that the emails being pitched by Murdoch outlet New York Post, “has all the classic earmarks of a Russian information operation.” The letter not only expressed an opinion, but it cited four specific data points and two observations about known Russian methods, all of which were and remain true to to this day.

And in the process, Bret Baier made a false claim.

Bret Baier made a false claim and all of Fox News’ watchers and all the other propagandists made the clip of Bret Baier making a false claim go viral, because they apparently either don’t know or don’t care that Baier couldn’t even get basic facts right. They are positively giddy that Baier used the tragedy of a terrorist attack to demonstrate his own ignorance or willful deceit about Fox’s favorite story, Hunter Biden’s dick pics.

From the get-go, Baier adopted a rhetorical move commonly used by Murdoch employees and frothy right wingers sustaining their blind faith in “the laptop:” He conflated “the laptop” with individual emails.

Baier: I’d be remiss if I didn’t ask you about that letter you signed onto from former intelligence officials saying that the laptop and the emails had all the classic earmarks of a Russian information operation. Obviously the New York Post and others saying the Hunter Biden letter was the real disinformation all along. Um, that letter was used in the debate, I haven’t asked you this. But do you have regrets about that, now looking back, knowing what you know now? [my emphasis]

The spooks’ letter Panetta signed addressed emails, not “the laptop.” The only use of the word “laptop” in the letter was in labeling this a potential “laptop op,” a way to package up emails meant to discredit Joe Biden. The letter even includes “the dumping of accurate information” among the methods used in Russian information operations.

Having conflated emails and “the laptop,” Baier then asked whether Panetta thinks “it,” now referring just to “the laptop,” not even the hard drives of copies from the laptop in question, was real.

Panetta: Well, you know, Bret, I was extremely concerned about Russian interference and misinformation. And we all know it. Intelligence agencies discovered that Russia had continued to push disinformation across the board. And my concern was to kind of alert the public to be aware that these disinformation efforts went on. And frankly, I haven’t seen any evidence from any intelligence that that was not the case.

Baier: You don’t think that it was real?

Having first conflated emails and the laptop, then substituted the laptop for the emails addressed in the letter, Baier then falsely claimed that, “Hunter Biden said it was his laptop.”

Panetta: I think that, I think that disinformation is involved here. I think Russian disinformation is part of what we’re seeing everywhere. I don’t trust the Russians. And that’s exactly why I was concerned that the public not trust the Russians either.

Baier: I don’t want to dwell on this because we have bigger things to talk about. Bigger urgency. But obviously, Hunter Biden said it was his laptop, and this investigation continues. [my emphasis]

I understand how frothy right wingers misunderstand what Hunter Biden has said about the data associated with “the laptop,” but Baier presents as a journalist, and you’d think he’d take the time to read the primary documents.

Hunter Biden admits some data is his, but denies knowledge of the “laptop”

The claim that Hunter Biden has said “the laptop” was his arises from three lawsuits: first, from Hunter Biden’s response and counterclaim to John Paul Mac Isaac’s lawsuit, then of Hunter’s lawsuit against Garrett Ziegler, and finally, the lawsuit against Rudy Giuliani.

Regarding the first of those filings, Hunter Biden based his countersuit against JPMI on an admission that JPMI came into possession of electronically stored data, at least some of which belonged to him. But he specifically did not admit that JPMI “possessed any particular laptop … belonging to Mr. Biden.”

5. In or before April 2019, Counterclaim Defendant Mac Isaac, by whatever means, came into possession of certain electronically stored data, at least some of which belonged to Counterclaim Plaintiff Biden.1

1 This is not an admission by Mr. Biden that Mac Isaac (or others) in fact possessed any particular laptop containing electronically stored data belonging to Mr. Biden. Rather, Mr. Biden simply acknowledges that at some point, Mac Isaac obtained electronically stored data, some of which belonged to Mr. Biden.

Regarding JPMI’s claims that Hunter dropped off the laptop,

169. HUNTER knowingly left his laptop with Plaintiff on April 12, 2019.

170. Soon thereafter HUNTER returned to Plaintiff’s shop to leave an external hard drive to which Plaintiff could transfer the data from HUNTER’s laptop.

171. HUNTER never returned to Plaintiff’s shop pick up his laptop

Hunter denied sufficient knowledge to answer all of them.

169. Mr. Biden is without knowledge sufficient to admit or deny the allegations in paragraph 169.

170. Mr. Biden is without knowledge sufficient to admit or deny the allegations in paragraph 170.

171. Mr. Biden admits that, if he ever had visited before, he did not return to Plaintiff’s shop.

In response to JPMI’s claim that Hunter knew of the phone call his lawyer, George Mesires, made to JPMI in October 2020 and the email follow-up that in any case doesn’t substantiate what JPMI claimed about the phone call,

31. On October 13, 2020, Plaintiff received a call from Mr. George Mesires,1 identifying himself as HUNTER’s attorney, asking if Plaintiff still had possession of his client’s laptop and following up thereafter with an email to the Plaintiff. Copy of email attached as EXHIBIT C.

[snip]

174. HUNTER’s attorney, George Mesires contacted Plaintiff on October 13, 2020 about the laptop.

Hunter admitted that Mesires was his attorney but denied knowing anything more.

31. Mr. Biden admits that Mr. George Mesires was his attorney. Mr. Biden is without knowledge sufficient to admit or deny the remaining allegations in paragraph 31.

[snip]

174. Mr. Biden admits that Mr. Mesires was his attorney. Mr. Biden is without knowledge sufficient to admit or deny the remaining allegations in paragraph 174.

In response to JPMI’s claim that Hunter Biden said something about the laptop without mentioning JPMI,

172. When asked about the laptop in a television interview broadcast around the world, HUNTER stated, “There could be a laptop out there that was stolen from me. It could be that I was hacked. It could be that it was the – that it was Russian intelligence. It could be that it was stolen from me. Or that there was a laptop stolen from me.” See https://edition.cnn.com/2021/04/02/politics/hunterbiden-laptop/index.html.

173. HUNTER knew it was his laptop.

Hunter Biden admitted he made the comment that didn’t mention JPMI — a comment on which JPMI based a $1.5M defamation claim!! — but again denied knowing whether or not the laptop was his.

172. Admitted and Mr. Biden further answers that the statement makes no mention of or even a reference to Plaintiff.

173. Mr. Biden is without knowledge sufficient to admit or deny the allegations in paragraph 173.

Of some interest, in response to JPMI’s claim that the information that appeared in the NYPost came from Hunter, who voluntarily left his laptop with JPMI,

67. The information contained in the NY POST exposé came from HUNTER who voluntarily left his laptop with the Plaintiff and failed to return to retrieve it.

Hunter outright denied the claim.

67. Denied.

Hunter Biden claimed that Rudy hacked Hunter’s data

That last claim — the outright denial that the data in the NYPost story came from Hunter — is of particular interest given something Denver Riggleman recently said. He described that the Hunter Biden team now has the data that JPMI shared with others — apparently thanks to this countersuit — and they’ve used it to compare with the data distributed forward from there.

Also, we know now, since the Hunter Biden team has the John Paul Mac Isaac data that was given to Rudy Giuliani and given to CBS, we also know that that data had no forensic chain of custody and it was not a forensic copy of any type of laptop, or even multiple devices that we can see. It was just a copy-paste of files, more or less.

[snip]

We know that there’s different data sets in different portions of the Internet attributed to Hunter’s data — or, to Hunter’s laptop.

[nip]

Now that we do have forensic data — Hunter Biden team has more foensic data than anybody else out there — we can actually start to compare and contrast. And that’s why you see the aggressiveness from the Hunter Biden legal team.

The lawsuit against Rudy and Costello claims that at some point, Rudy and Costello did things that amount to accessing Hunter’s data unlawfully. Hacking.

23. Following these communications, Mac Isaac apparently sent via FedEx a copy of the data he claimed to have obtained from Plaintiff to Defendant Costello’s personal residence in New York on an “external drive.” Once the data was received by Defendants, Defendants repeatedly “booted up” the drive; they repeatedly accessed Plaintiff’s account to gain access to the drive; and they proceeded to tamper with, manipulate, alter, damage and create “bootable copies” of Plaintiff’s data over a period of many months, if not years. 2

24. Plaintiff has discovered (and is continuing to discover) facts concerning Defendants’ hacking activities and the damages being caused by those activities through Defendants’ public statements in 2022 and 2023. During one interview, which was published on or about September 12, 2022, Defendant Costello demonstrated for a reporter precisely how Defendants had gone about illegally accessing, tampering with, manipulating and altering Plaintiff’s data:

“Sitting at a desk in the living room of his home in Manhasset, [Defendant Costello], who was dressed for golf, booted up his computer. ‘How do I do this again?’ he asked himself, as a login window popped up with [Plaintiff’s] username . . .”3

By booting up and logging into an “external drive” containing Plaintiff’s data and using Plaintiff’s username to gain access Plaintiff’s data, Defendant Costello unlawfully accessed, tampered with and manipulated Plaintiff’s data in violation of federal and state law. Plaintiff is informed and believes and thereon alleges that Defendants used similar means to unlawfully access Plaintiff’s data many times over many months and that their illegal hacking activities are continuing to this day.

[snip]

26. For example, Defendant Costello has stated publicly that, after initially accessing the data, he “scrolled through the laptop’s [i.e., hard drive’s] email inbox” containing Plaintiff’s data reflecting thousands of emails, bank statements and other financial documents. Defendant Costello also has admitted publicly that he accessed and reviewed Plaintiff’s data reflecting what he claimed to be “the laptop’s photo roll,” including personal photos that, according to Defendant Costello himself, “made [him] feel like a voyeur” when he accessed and reviewed them.

27. By way of further example, Defendant Costello has stated publicly that he intentionally tampered with, manipulated, and altered Plaintiff’s data by causing the data to be “cleaned up” from its original form (whatever this means) and by creating “a number of new [digital] folders, with titles like ‘Salacious Pics’ and ‘The Big Guy.’” Neither Mac Issac nor Defendants have ever claimed to use forensically sound methods for their hacking activities. Not surprisingly, forensic experts who have examined for themselves copies of data purportedly obtained from Plaintiff’s “laptop” (which data also appears to have been obtained at some point from Mac Isaac) have found that sloppy or intentional mishandling of the data damaged digital records, altered cryptographic featuresin the data, and reduced the forensic quality of data to “garbage.”

2 Plaintiff’s investigation indicates that the data Defendant Costello initially received from Mac Isaac was incomplete, was not forensically preserved, and that it had been altered and tampered with before Mac Issac delivered it to Defendant Costello; Defendant Costello then engaged in forensically unsound hacking activities of his own that caused further alterations and additional damage to the data he had received. Discovery is needed to determine exactly what data of Plaintiff Defendants received, when they received it, and the extent to which it was altered, manipulated and damaged both before and after receipt.

3 Andrew Rice & Olivia Nuzzi, The Sordid Saga of Hunter Biden’s Laptop, N.Y. MAG. (Sept. 12, 2022), https://nymag.com/intelligencer/article/hunter-biden-laptop- investigation.html.

I don’t think Hunter’s team would have compared the data Rudy shared with the NYPost before Hunter denied, outright, that “The information contained in the NY POST exposé came from HUNTER.” But based on what Riggleman claimed, they have since, and did compare it, before accusing Rudy and a prominent NY lawyer of hacking Hunter Biden’s data.

Hunter Biden’s team admits they don’t know the precise timing of this: “the precise timing and manner by which Defendants obtained Plaintiff’s data remains unknown to Plaintiff.” DDOSecrets points to several emails that suggest Rudy and Costello did more than simply review available data, however. For example, it points to this email created on September 2, 2020, just after the former President’s lawyer got the hard drive.

September 2, 2020: A variation of a Burisma email from 2016 is created and added to the cache. The email and file metadata both indicate it was created on September 2, 2020.

But the lawsuit, if proven, suggests the possibility that between the time JPMI shared the data with Rudy and the time Rudy shared it with NYPost, Rudy may have committed federal violations of the Computer Federal Fraud and Abuse Act — that is, Hunter alleges that between the time JPMI shared the data and the time NYPost published derivative data, Rudy may have hacked Hunter Biden’s data.

If he could prove that, it means the basis Twitter gave for throttling the NYPost story in October 2020 — they suspected the story included materials that violated Twitter’s then prohibition on publishing hacked data — would be entirely vindicated.

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.

[snip]

My team and I exposed hundreds of thousands of these accounts from Russia, but also from Iran, China and beyond. It’s a concern with these foreign interference campaigns that informed Twitter’s approach to the Hunter Biden laptop story. In 2020, Twitter noticed activity related to the laptop that at first glance bore a lot of similarities to the 2016 Russian hack and leak operation targeting the dnc, and we had to decide what to do, and in that moment with limited information, Twitter made a mistake under the distribution of hacked material policy.

If Hunter can prove that — no matter what happened in the process of packaging up this data before it got to JPMI, whether it involved the compromise of Hunter’s digital identity before JPMI got the data, which itself would have been a hack that would also vindicate Twitter’s throttling of the story  — it would mean all the data that has been publicly released is downstream from hacking.

For Twitter, it wouldn’t matter whether the data was hacked by Russia or by Donald Trump’s personal lawyer, it would still violate the policy as it existed at the time.

Importantly, this remains a claim about data, not about a laptop. The lawsuit against Rudy and Costello repeats the claim made in the JPMI counterclaim: while JPMI had data, some of which belongs to Hunter, Hunter is not — contrary to Bret Baier’s false claim — admitting that, “Hunter Biden said it was his laptop.”

2. Defendants themselves admit that their purported possession of a “laptop” is in fact not a “laptop” at all. It is, according to their own public statements, an “external drive” that Defendants were told contained hundreds of gigabytes of Plaintiff’s personal data. At least some of the data that Defendants obtained, copied, and proceeded to hack into and tamper with belongs to Plaintiff.1

1 This is not an admission by Plaintiff that John Paul Mac Isaac (or others) in fact possessed any particular laptop containing electronically stored data belonging to Plaintiff. Rather, Plaintiff simply acknowledges that at some point, Mac Isaac obtained electronically stored data, some of which belonged to Plaintiff.

In two lawsuits, Hunter Biden explicitly said that he was not admitting what Baier falsely claimed he had.

I know this is Fox News, but Baier just blithely interrupted a sober discussion about a terrorist attack to make a false claim about “the laptop.”

Hunter Biden claims that Garrett Ziegler hacked Hunter’s iPhone

Hunter Biden’s approach is different in the Garrett Ziegler lawsuit, in which he notes over and over that Ziegler bragged about accessing something he claimed to be Hunter Biden’s laptop, but which was really, “a hard drive that Defendants claim to be of Plaintiff’s ‘laptop’ computer.” By the time things got so far downstream to Ziegler, there was no pretense this was actually a laptop, no matter what Baier interrupted a discussion about terrorism to falsely claim.

But that paragraph explicitly denying admission about this being a laptop is not in the Ziegler suit.

There’s a likely reason for that. The core part of the claim against Ziegler is that Ziegler unlawfully accessed a real back-up of Hunter Biden’s iPhone, which was stored in encrypted form in iTunes — just as I laid out had to have happened months before that lawsuit.

28. Plaintiff further is informed and believes and thereon alleges that at least some of the data that Defendants have accessed, tampered with, manipulated, damaged and copied without Plaintiff’s authorization or consent originally was stored on Plaintiff’s iPhone and backed-up to Plaintiff’s iCloud storage. On information and belief, Defendants gained their unlawful access to Plaintiff’s iPhone data by circumventing technical or code-based barriers that were specifically designed and intended to prevent such access.

29. In an interview that occurred in or around December 2022, Defendant Ziegler bragged that Defendants had hacked their way into data purportedly stored on or originating from Plaintiff’s iPhone: “And we actually got into [Plaintiff’s] iPhone backup, we were the first group to do it in June of 2022, we cracked the encrypted code that was stored on his laptop.” After “cracking the encrypted code that was stored on [Plaintiff’s] laptop,” Defendants illegally accessed the data from the iPhone backup, and then uploaded Plaintiff’s encrypted iPhone data to their website, where it remains accessible to this day. It appears that data that Defendants have uploaded to their website from Plaintiff’s encrypted “iPhone backup,” like data that Defendants have uploaded from their copy of the hard drive of the “Biden laptop,” has been manipulated, tampered with, altered and/or damaged by Defendants. The precise nature and extent of Defendants’ manipulation, tampering, alteration, damage and copying of Plaintiff’s data, either from their copy of the hard drive of the claimed “Biden laptop” or from Plaintiff’s encrypted “iPhone backup” (or from some other source), is unknown to Plaintiff due to Defendants’ continuing refusal to return the data to Plaintiff so that it can be analyzed or inspected. [my emphasis]

Hunter Biden’s team has backup for this assertion, thanks to the notes Gary Shapley took in an October 22, 2022 meeting about what was an actual laptop JPMI handed over to the FBI. On that laptop — which the FBI had confirmed was associated with Hunter Biden’s iCloud account and which it tied to data that could all be falsifiable to someone in possession of the laptop, which had means to intercept and redirect emails and calls to Hunter’s real devices, but which the FBI still had not validated 10 months after obtaining it — the iPhone content was encrypted.

Laptop — iphone messages were on the hard drive but encrypted they didn’t get those messages until they looked at laptop and found a business card with the password on it so they were able to get into the iphone messages [my emphasis]

Even the FBI needed to find a password to access the iPhone content that Ziegler has bragged about accessing. (Note: there have been four known accesses to this data, and every single one of them claims to have used a different means to break the encryption, which in my mind raises real questions about the nature of the business card). But the FBI had a warrant. Ziegler did not.

There are still a great deal of questions one would have to answer before entirely ruling out that Russians were involved in the process of packaging up Hunter Biden’s digital identity; the possible role of a Russian escort service is only one of at least three possible ways Russia might be involved. Yet Bret Baier is unwilling to pursue those questions — starting with the unanswered questions about the role that Baier’s former Fox News colleague played.

But with all those unanswered questions, Baier was nevertheless willing to interrupt a discussion about terrorism to make false claims about what is known.

Update: I’ve taken out that this was specifically a Russian escort service. Some outlets claim Eva is Ukrainian. Dimitrelos does claim that Hunter searched for “Russian escort service,” though.

Update: Added the Bluewater Wellness Intramuscular Injection ad from October 2018.

Update: Added the observation about a newly created email from DDOSecrets.

Update: I was reminded of Bret Baier’s opinion in the same days when Leon Panetta was expressing his doubts about this story.

During a panel on his Thursday evening show, Baier addressed the Post‘s story and the decision by both Twitter and Facebook to limit sharing of the story on their respective platforms because of concerns about spreading misinformation. The move elicited fierce pushback from conservatives and sparked a vote on a Congressional subpoena of Twitter CEO Jack Dorsey.

“The Biden campaign says the meeting never happened, it wasn’t on the schedules, they say,” Baier noted. “And the email itself says ‘set up’ for a meeting” instead of discussing an actual meeting.

Baier then played an audio clip from a SiriusXM radio interview of Giuliani, where he appeared to alter the original details of who dropped off the laptop from which the emails in question were purportedly obtained. The computer store owner who gave a copy of the laptop’s hard drive to Giuliani was also heard explaining how he is legally blind and couldn’t for certain identify just who delivered the computer to him.

” Let’s say, just not sugarcoat it. The whole thing is sketchy,” Baier acknowledged. “You couldn’t write this script in 19 days from an election, but we are digging into where this computer is and the emails and the authenticity of it.”

Featured image courtesy of Thomas Fine.

---

*As I have noted in the past, Dimitrelos prohibited me from republishing his reports unless I indemnify him for the privacy violations involved. I have chosen instead — and am still attempting — to get permission from Hunter Biden’s representatives to reproduce redacted parts of this report that strongly back Hunter’s claim of being hacked.

Some things age well, like fine wine, George Clooney, Halle Berry, and Robin Wright.

Some things do not.

Back on January 6, 2021, when certain GOP senators and representatives objected to the certification of the Arizona results and the two houses went into separate sessions, Steve Scalise was the first member recognized to speak in the House. Here is part of what he said, taken from the Congressional Record, after some preliminary remarks about the Founders. Note, please, the three parts I put in bold:

. . . We have to follow the constitutional process. Now, there might be reasons why some people don’t like the process laid out by a legislative body. Madam Speaker, I served on one of those legislative bodies when I was in the State legislature for 12 years. I served on the House and Governmental Affairs Committee, where we wrote the laws for our State’s elections. And I can tell you, when we had to make changes, those were extensively negotiated. We would have people on both sides come.

Republicans and Democrats, Madam Speaker, would get together to work through those changes, any minute change to how a precinct would function, to how a change would be made in the time of an election, signature requirements, all the many things that involve a clerk carrying out the duties in each parish, in our case.

You would see people come and give testimony, Madam Speaker. Both sides could come. Clerks of court were there in the hearing rooms.

It was an open process, by the way, not behind closed doors in a smoke-filled room where somebody might want to bully a secretary of state to get a different version that might benefit them or their party or their candidate. That is not what our Founding Fathers said is the process. Maybe it is how some people wanted to carry it out. But they laid out that process.

So when we would have to make those changes, they were in public view; they were heavily debated; and then, ultimately, those laws were changed in advance of the election so everybody knew what the rules were.

People on both sides knew how to play by the rules before the game started, not getting somewhere in the process and saying, well, you don’t think it is going to benefit you, so you try to go around the Constitution. That is not how our system works. It has gotten out of hand. So President Trump has called this out, and President Trump has stood up to it. So many of us have stood up to it.

[snip]

It is time we get back to what our Founding Fathers said is the process for selecting electors: that is the legislatures in public view, not behind closed doors, not smoke-filled rooms, not bullying somebody that might give you a better ruling. Let’s get back to rule of law and follow the Constitution, Madam Speaker.

[end of remarks]

[C-Span video of Scalise’s remarks here.]

Scalise is worried that “somebody might want to bully a secretary of state”? Horrors!

Scalise is concerned that “some people” want a different process that allows for bullying a secretary of state? Say it ain’t so!

Scalise is bothered by the notion that somebody might put pressure on an elections official so that they “might give you a better ruling”? Inconceivable!

. . . pause . . .

. . . deep breath . . .

. . . looking around nervously . . .

. . . checking the skies to see if lightning is about to strike . . .

Waiting for Donald Trump to come down *hard* on Scalise in three . . . two . . . one . . .

On January 9, I did a post noting that at least 25 of the known witnesses or subjects of the January 6 investigation into Trump were attorneys.

In a filing yesterday, DOJ said the same thing: At least 25 witnesses, including one member of Trump’s family, withheld testimony or documents based on an attorney-client claim.

During the course of the Government’s investigation, at least 25 witnesses withheld information, communications, and documents based on assertions of the attorney-client privilege under circumstances where the privilege holder appears to be the defendant or his 2020 presidential campaign. These included co-conspirators, former campaign employees, the campaign itself, outside attorneys, a non-attorney intermediary, and even a family member of the defendant.

To be clear, we’re measuring two different things: for example, while the two Pats — Cipollone and Philbin — as well as Mike Pence’s counsel, Greg Jacob, withheld testimony in their first grand jury appearances, that was based at least partly on an Executive Privilege claim, one prosecutors ultimately overcame, not exclusively on their role as White House lawyers.

And I know I missed a bunch of people who invoked attorney-client privilege. For example, Bernie Kerik — who I didn’t count in my list — withheld documents until forced to share them in the Ruby Freeman lawsuit, based on a claim that his work as a researcher was attorney work product. The Georgia indictment alerted me that I had missed accused Trump co-conspirator Robert Cheeley — and there are probably attorneys in all the other swing states I missed too. I didn’t count the campaign itself. I sure as hell didn’t count any family member (I wonder if the big gap in the January 6 indictment where Ivanka should be is there based off a claim she was acting at the direction of Eric Herschmann, though Herschmann seems to have offered far more cooperation than Ivanka did).

However you count it, though, it’s a breathtaking number, one rarely taken into account by the TV lawyers wailing because it took so long to charge Trump.

And charge Trump alone.

That’s something I kept thinking about as I read this filing: Thus far, not even Trump’s alleged co-conspirators — all of whom might make an attorney-client claim (even Mike Roman might be that non-lawyer intermediary, though I think it more likely Boris Ephsteyn is CC6) have been charged.

The government’s argument itself makes a lot of sense. For example, it enumerates that Trump or his attorneys have claimed they’ll rely on an advice of counsel defense at least seven times.

1 Fox News, Aug. 1, 2023, at minute 3:03, available at https://www.foxnews.com/video/6332255292112.

2 CNN, Aug. 1, 2023, at minute 2:20, available at https://www.youtube.com/watch?v=GW7Bixvkpc0.

3 NPR All Things Considered, Aug. 2, 2023, available at https://www.npr.org/2023/08/02/1191627739/trump-charges-indictment-attorney-jan-6-probe.

4 Meet the Press (NBC), Aug. 6, 2023, available at https://www.nbcnews.com/meet-thepress/meet-press-august-6-2023-n1307001.

5 Face the Nation (CBS), Aug. 6, 2023, at minute 24:11, available at https://www.cbsnews.com/news/face-the-nation-full-transcript-2023-08-06/.

6 CNN, Aug. 6, 2023, at minute 7:58, available at https://www.cnn.com/videos/politics/2023/08/06/sotu-lauro-full.cnn.

7 Donald Trump interview with Tucker Carlson, Aug. 23, 2023, at minute 34:35, available at https://twitter.com/TuckerCarlson/status/1694513603251241143?lang=en.

The government lays out precedent stating that Trump would have to waive privilege over and share communications that support his advice-of-counsel defense, but also communications over which he and the lawyer are currently shielding behind a privilege claim that would undermine it.

In invoking the advice-of-counsel defense, the defendant waives attorney-client privilege on all communications concerning the defense. See White, 887 F.2d at 270; United States v. Crowder, 325 F. Supp. 3d 131, 137 (D.D.C. 2018). Accordingly, once the defense is invoked, the defendant must disclose to the Government (1) all “communications or evidence” the defendant intends to rely on to establish the defense and (2) any “otherwise-privileged communications” the defendant does “not intend to use at trial, but that are relevant to proving or undermining” it. Crowder, 325 F. Supp. 3d at 138 (emphasis in original). See United States v. Stewart Rhodes, 22- cr-15 (D.D.C.), ECF No. 318 at 2 (quoting Crowder); Dallman, 740 F. Supp. 2d at 814 (waiver is for “information defendant submitted to the attorney on which the attorney’s advice is based, the attorney’s advice relied on by the defendant, and any information that would undermine the defense”); United States v. Hatfield, 2010 WL 183522, at *13 (E.D.N.Y. Jan. 8, 2010) (“This disclosure should include not only those documents which support [defendants’] defense, but also all documents (including attorney-client and attorney work product documents) that might impeach or undermine such a defense.”); United States v. Scali, 2018 WL 461441, at *8 (S.D.N.Y. Jan. 18, 2018) (quoting Hatfield).

Given that Trump would have to identify exhibits on which he would rely for an advice of counsel defense by December 18, the government argues, he should have to also identify the specifics of any advice of counsel defense by that date as well.

Given the potential number of attorneys and breadth of advice involved, the defendant’s notice should describe with particularity the following: (1) the identity of each attorney who provided advice; (2) the specific advice given, including whether the advice was oral or written; (3) the date on which the advice was given; and (4) the information the defendant communicated or caused to be communicated to the attorney concerning the subject matter of the advice, including the date and manner of the communication.

It makes this argument while also noting something that doesn’t, per se, support its case: that DOJ has already told Trump what these 25 people — and it invokes John Eastman, the person most often mentioned in Trump’s public claims of a advice of counsel defense, by caption — have identified in privilege logs.

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

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

Whatever else this motion is — and on its face it makes a lot of sense — it would also provide a means for DOJ to sort through some of the privilege logs it is looking at, and at least in the case of Eastman (if Trump indeed invoked his counsel as a defense) to breach those privilege claims and even obtain communications it does not yet have. Particularly given Clarence Thomas’ recusal on Eastman’s recently rejected cert petition, Eastman might have unidentified communications of particular interest.

Advance notice would also force Trump to rule out relying on the advice of others, like Rudy or Sidney Powell, as a defense, something that might make charges against them more viable.

I don’t imagine that DOJ would add any of Trump’s co-conspirators to his indictment so long as Trump’s trial happened before the election. They could always charge others separately, but so long as Trump had a chance of returning to the presidency, the only reason to do so would be if there were a legitimate hope of flipping the person or if it would make Trump’s alleged crimes more damaging politically. Trump has pardoned his way out of problems in the past and DOJ has to assume he would again, given the opportunity.

But in addition to making a solid case that Judge Chutkan should make Trump declare his intentions in December, this filing also admits that attorney-client privilege claims continue to blind DOJ to some of the universe of related communications pertaining to January 6.

As part of Trump’s attempt (with some, albeit thus far limited, success — Judge Chutkan already gave Trump a small extension, and Judge Cannon has halted CIPA deadlines) to stall both his federal prosecutions by complaining about the Classified Information Protection Act, both sides have submitted recent filings that provide some additional details about the classified discovery in his two cases.

Among other things, the filings seem to suggest that Donald Trump was caught storing other documents about US nuclear programs at his beach resort, in addition to the one charged as count 19 of his indictment.

January 6 Election Intelligence

In Trump’s January 6 prosecution, the government’s response to Trump’s bid to delay the CIPA process described the classified evidence Trump’s team had reveiwed in the case this way:

Defense counsel responded that they anticipated review the week of September 25, and later the date was finalized for September 26. Due to the classification levels of certain of the discovery material, the CISO conducted additional read-ins that morning for Mr. Blanche, the Required Attorneys, and the Required Paralegal, and the defense was provided the classified discovery around 10:35 a.m., except for one further controlled document that was provided around 2:30 p.m.

The classified discovery reviewed by the defense consisted of approximately 975 pages of material: (1) a 761-page document obtained from the Department of Defense, the majority of which is not classified;1 (2) an FBI-FD 302 of the classified portion of a witness interview for which the Government already provided a transcript of the unclassified portion, as well as attachments, totaling 52 pages; (3) a 12-page document currently undergoing classification review by the Department of Defense; (4) the 118-page classified transcript the Government described at the CIPA § 2 hearing on August 28; and (5) a further controlled document that is a classified version of a publicly-available document produced in unclassified discovery that contains the same conclusions.2

1 The Government did not include this document in its page estimate at the CIPA § 2 hearing, only later determining that in an abundance of caution the entire document should be produced in classified discovery, even though—as indicated by page and portion markings—the majority of it is not classified. In its cover letter accompanying the classified discovery production, the Government made clear its willingness to discuss producing the unclassified pages and portions in unclassified discovery.

2 See Bates SCO-03668433 through SCO-03668447 (produced to the defense in the first unclassified discovery production on August 11, 2023).

Trump’s reply appears to have described what two of these — item 1 and item 5 (and possibly also item 3, which may have been included as part of item 1) — were.

Item 5 consists of the classified version of the Intelligence Community’s Foreign Threats to the 2020 Election publicly released in March 2021.

The Special Counsel’s Office alleges that the Director of National Intelligence “disabused” President Trump “of the notion that the [USIC’s] findings regarding foreign interference would change the outcome of the election.” (Indictment ¶ 11(c)). The Office points out that these “findings” are set forth in a “publicly-available version of the same document that contains the same ultimate conclusions.” (Opp’n at 12). This is a reference to the unclassified version of the National Intelligence Council’s March 2021 Report titled “Foreign Threats to the 2020 US Federal Elections” (the “Report”).3

3 The unclassified Report is available at: https://www.dni.gov/files/ODNI/documents/assessments/ICA-declass-16MAR21.pdf

Trump is demanding that DOJ provide details of every actual compromise during the 2020 election — things like Iran’s effort to pose as Proud Boys to suppress Democratic votes — in order to support his claim that the classified evidence in this case is more central than it is.

Item 1 appears to include a bunch of materials that Mark Milley had preserved about the fragile state of the country and — even more so — Trump after the attack.

The Special Counsel’s Office has sufficient access to the files of the Department of Defense (“DOD”) to produce to President Trump two documents, totally [sic] approximately 773 pages, that the Office “obtained” from DOD. (Opp’n at 5). It appears, however, that there is a larger set of relevant DOD holdings, which the Office must review and make any necessary productions required by Rule 16, Brady, Giglio, and the Jencks Act.

In November 2021, General Mark Milley told the House’s January 6 Select Committee that “we have a boatload of documentary stuff . . . both classified and unclassified stuff. And I will make sure that you get whatever we have. And it’s a lot.” (Tr. 10).6 In response to a question about a particular document, General Milley volunteered that he had overclassified a large volume of relevant material:

I classified the document at the beginning of this process by telling my staff to gather up all the documents, freeze-frame everything, notes, everything and, you know, classify it. And we actually classified it at a pretty high level, and we put it on JWICS, the top secret stuff. It’s not that the substance is classified. It was I wanted to make sure that this stuff was only going to go people who appropriately needed to see it, like yourselves. We’ll take care of that. We can get this stuff properly processed and unclassified. (Tr. 169).

In addition to the above-referenced classified documents “obtained” from DOD, the Special Counsel’s Office has produced nearly a million pages of documents from the House Select Committee. But it is not clear that those materials include any of the classified documents referenced by General Milley during his testimony, or whether the Office has even reviewed those materials.

6 The transcript is available at: https://www.govinfo.gov/content/pkg/GPO-J6-TRANSCRIPTCTRL0000034620/pdf/GPO-J6-TRANSCRIPT-CTRL0000034620.pdf.

What Trump accuses Milley of overclassifying appears to have been, instead, classified to prevent detrimental things said about Trump — including by his Chief of Staff — from being shared publicly. As Milley described to the January 6 Committee. he made a point of preserving all of it because he understood the significance of January 6.

So what I saw unfold on the 6th was disturbing, to say the least, and I think it was an incredible event. And I want to make sure that whatever information I have and I can help you determine facts, atmospherics, opinions, whatever, determine lines of inquiry. In any manner, shape, or form that I or the Joint Staff can help, I want to make sure that we do that, because I think the role of the committee is critical to prevent this from ever happening again.

[snip]

We also have — and I want to make sure that you know that we have and we’ll provide it to you, the Joint Staff — we have a boatload of documentary stuff. I think we provided a bunch of emails, which is good. We have both classified and unclassified stuff. And I will make sure that you get whatever we have. And it’s a lot. We have it in binders.

Immediately following the 6th, I knew the significance, and I asked my staff, freeze all your records, collate them, get them collected up. I had one of the staff, a J7, you 10 know, package it up, inventory it, put it all in binders and 11 all that kind of stuff. So we have that, and you’re welcome to all of it, classified and unclassified. And I want to make sure that everything is properly done for the future. That’s very important to me.

The materials include — again, per Milley’s testimony — commentary from people like Mark Meadows and Christopher Miller about Trump’s state on January 7.

General Milley. So where was I? Oh. Anyway, so general themes: steadiness overseas, constantly watching Iran, North Korea, China, Russia, terrorists. Venezuela, by the way, was another one. So there’s a series of these potential overseas crises. In several of the calls — and my theme was I sounded like a broken record: Steady, breathe through your nose, we’re going to land the — we’re going to 4 land this thing, peaceful transfer of power. That was a constant message of mine. And both Pompeo and Meadows didn’t push back on that at all. It was “roger that” sort of thing.

So, now, there was a couple of calls where, you know, Meadows and/or Pompeo but more Meadows, you know, how is the President doing? Like, Pompeo might say, “How is the President doing,” and Meadows would say, “Well, he’s in a really dark place,” or “he’s” — you know, those kind of words. I’d have to go back to some notes to get the exact phrasing, but that happened a couple different times.

I’m looking for — on this timeline, like, here is one, for example, on the 7th of January, so this is the day after, right? “It’s just us now.” And I can’t remember if it was Pompeo or Meadows that said that, but I didn’t say it. “It’s just us now.” In other words, it’s just the three of us to land this thing. I’m, like, come on, man. This is — there’s millions of people here. But anyway. I’m not trying to be overly dramatic, but these are quotes. “POTUS is very emotional and in a bad place.” Meadows . So that – – that’s an example. Same day, different meeting with Acting SecDef Miller.” POTUS not in a good spot.” Whatever that means.

Ms. Cheney. Uh-huh.

General Milley. You know, these aren’t my words. These are other people’s words. Kellogg, same day, seventh phone call: “Ivanka was a star.” “She’s keeping her father calm.” “Everyone needs to keep a cool head.” So it’s the — you know, it’s comments. These are just phrases, but there’s–

Ms. Cheney. Yeah.

General Milley. there’s conversations like that, and, you know, for me, as the Chairman, I’m, like, hmmm. So all I’m trying to do is watch my piece of the pie. I’m not in charge of anything. I just give advice and just trying to keep it steady.

Ms. Cheney. I know we have to take a break, General Milley, and the camera is not working here, so I can’t see you guys, but are the notes that you’re reading from, are those notes that we have? Are they in the exhibits, or are those notes that we can get if we don’t?

General Milley. No. We can — I can provide them. I’ll swear to it, you know, that kind of thing if I need to do an affidavit on whatever you want.

[Redacted] And I think this is in a classified production.

General Milley. Those notes came from the timeline that I produced to the Joint Staff, essentially.

Ms. Cheney. Yeah.

General Milley. On this timeline, it’s actually classified, but, again, almost all of the substance is it not classified. The document I classified the document at the beginning of this process by telling my staff to gather up all the documents, freeze-frame everything, notes, everything and, you know, classify it. And we actually classified it at a pretty high level, and we put it on JWICS, the top secret stuff. It’s not that the substance is classified. It was I wanted to make sure that this stuff was only going to go people who appropriately needed to see it, like yourselves.

We’ll take care of that. We can get this stuff properly processed and unclassified so that you can have it —

[Redacted] That would be great.

Trump is demanding this stuff under Rule 16 (the defendant’s own statements), Brady (exculpatory evidence), Giglio (deal made with other witnesses), and Jencks Act (statements by potential government witnesses). Trump is asking for all memorializations that Milley or anyone else made of things Trump said — and he’s preparing to claim that that amounts to exculpatory evidence.

And both the review of this memorialization and the court filings happened after Trump threatened to execute Milley on September 22, Trump’s treatment of it — and his claim that Milley overclassified it — can’t be taken in isolation from it, especially given the inclusion of the Iran attack document, which Trump was showing off at Mar-a-Lago even before Milley’s January 6 testimony — in the superseding stolen documents indictment.

That is, having discovered that Milley preserved the crazy things Trump said and the crazy Trump’s most loyal aides said about Trump, Trump wants to make that a centerpiece of his graymail attempt, preparing a claim that the very act of memorializing all this amounts to disloyalty, all while arguing that he needs it to discredit Milley or Meadows or anyone else involved if they testify at trial.

Stolen Documents

In the stolen documents case, classified material is obviously more central to Trump’s alleged crimes and the sensitivity of the materials involved is much greater. Even though there have been some sound educated guesses as to what the charged documents include, it’ll be months before we get real detail at trial.

Nevertheless, the competing claims about classified discovery have provided some new details about the documents charged against Trump — specifically, regarding ten documents that, for two separate reasons, held up reviews by Trump’s lawyers. at the SCIFs in Florida being used for the case.

As Trump laid out in his reply to his bid to delay the trial, at first five, then another four of the documents charged against him were not placed in the SCIF in Miami Trump has been using, because they are so sensitive — though are available in a SCIF in DC. In addition, there was one document that only recently became available in that SCIF.

Nine of the documents charged in the 32 pending § 793(e) counts, as well as “several uncharged documents,” are not available to the defense in this District. (Opp’n at 6).4 The document relating to Count 19 was made available to President Trump for the first time late in the afternoon of October 3, only after counsel left the District following two days of review at the temporary Miami SCIF.

4 As we understand it, documents relating to Counts 6, 22, 26, and 30 have been relocated to the District of Columbia at the request of the documents’ “owners.” (See Opp’n at 6-7 n.4). The documents relating to Counts 5, 9, 17, 20, and 29 are not available to President Trump or counsel at any location.

The one document that only recently became available is the single charged document classified under the Atomic Energy Act — here, marked as FRD or “Formerly Restricted Document.”

• Document 19: [S/FRD] Undated document concerning nuclear weaponry of the United States; seized in August 8, 2022 search.

As noted here, because it was classified under the Atomic Energy Act, Trump could not declassify it unilaterally, which is undoubtedly why it was charged.

As the government described in its response to this CIPA request on September 27, the presence of one particular charged document and several uncharged documents which required some specific clearance had meant Trump’s lawyers couldn’t get into the SCIF at all, until the Information Security Officer withdrew them, which she or he did on September 26.

The Government has recently been informed that multiple defense counsel for Trump now have the necessary read-ins to review all material in the Government’s September 13 production, with the exception of a single charged document and several uncharged documents requiring a particular clearance that defense counsel do not yet possess. The Government understands that the presence of these documents in the set of discovery available in the defense SCIF in Florida had prevented the defense from gaining access to a safe containing a subset of classified discovery when the defense reviewed the majority of the September 13 production during the week of September 18, 2023. On September 26, at the Government’s request, the CISO removed the documents requiring the particular clearance from the safe so that the remainder of the subset would be fully available to Trump’s counsel.

If, as seems likely, document 19 was the one had to be withdrawn until all lawyers got an additional clearance, it suggests the other uncharged documents were also classified under the AEA. If so, it would mean FBI discovered additional US nuclear documents, potentially included ones that remain restricted, found at Mar-a-Lago but have not been charged.

These are the five that were always given that special handling, treating them as too sensitive to be placed in the SCIF in Miami.

• Document 5: [TS//[REDACTED]/[REDACTED]//ORCON/NOFORN] Document dated June 2020, concerning nuclear capabilities of a foreign country; seized in August 8, 2022 search.
• Document 9: [TS//[REDACTED]/[REDACTED]//ORCON/NOFORN/FISA] Undated document concerning military attacks by a foreign country; seized in August 8, 2022 search.
• Document 17: [TS//[REDACTED]/TK/ORCON/IMCON/NOFORN] Document dated January 2020 concerning military capabilities of a foreign country; seized in August 8, 2022 search.
• Document 20: [TS//[REDACTED]//ORCON/NOFORN] Undated document concerning timeline and details of attack in a foreign country; seized in August 8, 2022 search.
• Document 29: [TS//[REDACTED]//SI/TK//ORCON/NOFORN] Document dated October 18, 2019, concerning military capabilities of a foreign country.

And these are the four that were initially placed in the Miami SCIF, but later withdrawn after a request by the document originators.

• Document 6: [TS//SPECIAL HANDLING] Document dated June 4, 2020, concerning White House intelligence briefing related to various foreign countries; seized in August 8, 2022 search.
• Document 22: [TS//[REDACTED]//RSEN/ORCON//NOFORN] Document dated August 2019, concerning military activity of a foreign country; turned over on June 3, 2022.
• Document 26: [TS//[REDACTED]//ORCON//NOFORN/FISA] Document dated November 7, 2019, concerning military activity of foreign countries and the United States; turned over on June 3, 2022.
• Document 30: [TS//[REDACTED]//ORCON/NOFORN/FISA] Document dated October 15, 2019, concerning military activity in a foreign country; turned over on June 3, 2022.

Here’s how Jack Smith’s team described these documents.

As noted above, a small collection of highly sensitive and classified materials that Trump retained at the Mar-a-Lago Club are so sensitive that they require special measures (the “special measures documents”), including enhanced security protocols for their transport, review, discussion, and storage. The special measures documents constitute a tiny subset of the total array of classified documents involved, which is itself a small subset of the total discovery produced. From the outset of this case, the SCO and the CISO have been aware of some of the special measures documents, but only recently, the SCO and the CISO learned that others—still constituting a small fraction of the overall discovery—fall into that category as well.

[snip]

To be sure, the extreme sensitivity of the special measures documents that Trump illegally retained at Mar-a-Lago presents logistical issues unique to this case. But the defendants’ allegations that those logistical impediments are the fault of the SCO are wrong. The defendants’ claim that the SCO has failed “to timely remedy the situation,” ECF No. 167 at 2, or “to make very basic arrangements in this District,” id. at 4, proceeds from the false premise that the SCO controls the situation—it does not. Nonetheless, the SCO has also offered to—and did—make a facility available to the defense in Washington, D.C., that can accommodate the review and discussion of all the discovery in this case, including the special measures documents.

What’s interesting about this collection is how they compare and contrast with others of the 32 documents charged.

For example, these documents are not being treated with greater sensitivity because they were subject to Special Handling requirements likely related to contents of the Presidential Daily Briefs; several other charged documents (eg, 1, 2, and 4), in addition to document 6, were subject to Special Handling.

Matt Tait and Brian Greer had speculated that some of these — documents 26, 29, and 30 — might be part of a cluster of related documents, but others that similarly date to October and November 2019 are not being treated with this same special handling.

Most of these documents include special compartments (reflected by the [REDACTED] classification mark(s)), but document 6 does not. That said, all the documents with such redacted compartments are being treated with that special handling. So perhaps the most likely explanation is that document 6 reflects Trump getting briefed on something outside the scope of a formal document, which therefore didn’t have the appropriate compartment marks.

Whatever explains it, someone doesn’t trust these documents to be stored in a SCIF in Miami.

Back on September 12, when Matt Gaetz’ plan to depose Kevin McCarthy was a seeming fantasy, he appeared on CNN to complain that McCarthy’s concession to open an impeachment inquiry wasn’t enough.

Even as Abby Phillip repeatedly (and laudably) noted that there was no evidence to support an impeachment, Gaetz claimed he had been “deposing” retired FBI Agent Timothy Thibault that day and further claimed that, as part of a cover-up, the Foreign Influence Task Force had “designate[d] any derogatory information about the Bidens as foreign disinformation.”

GAETZ: I mean, come on, he was — wait, hold on. Can you just acknowledge it calls into the business deals, he’s involved? When he calls dinners, you don’t think that’s involvement?

PHILLIP: First of all, this is not about innuendo. It’s not about what I believe. It’s a question, do you have evidence? If you had evidence that Joe Biden was linked to Hunter Biden’s business deals in a way that is illegal, we wouldn’t be having this conversation. You would probably have the votes for an impeachment inquiry, but you don’t, because of people like [K]en [B]uck, and people like Don Bacon, and many others in your conference.

GAETZ: Yes. But on the substance, look, you want to talk about how long we’ve had the evidence, the FBI had Hunter Biden’s laptops in 2019. So, this inquiry isn’t just going to be into the Bidens and the bad things they’ve done, it’s also going to be into the cover-up, and we do have that evidence.

I was deposing Tim Thibault today. Today, I was asking questions about the roles of foreign interference task force to go and designate any derogatory information about the Bidens as foreign disinformation when that was part of a cover up.

PHILLIP: Congressman, let me just move on here because I’m going to reiterate to the audience, because we need to be clear, there is not evidence linking President Biden to anything illegal having to do with Hunter Biden.

It’s true that Gaetz was in the deposition of Thibault that day. But unlike Jim Jordan, who was the only other member of Congress recorded as having attended the deposition, Gaetz doesn’t appear to have asked a single question.

Jordan asked over 70 questions. The aspiring Speaker asked about:

• Thibault’s efforts to predicate an investigation against the Clinton Foundation based on Peter Schweizer’s Clinton Cash in 2016
• Two separate warnings the Washington Field Office got against using Schweizer — and the copy of “the laptop” he offered them — as a source in the Hunter Biden investigation in 2020
• Thibault’s role, also in 2020, in fielding an effort by Tony Bobulinski to share his phones but not any personal content from his phones
• Questions from Baltimore to DC about a new prong of the Hunter Biden investigation in 2022 (possibly a campaign finance investigation into Kevin Morris’ donations to Hunter Biden)

The deposition arose out of the same stream of right wing complaints to Chuck Grassley (one, two) that lie at the core of the Republican campaign against Hunter Biden. The only thing that rationalizes the campaign is that in 2020 Thibault liked a number of Randall Eliason columns critical of Bill Barr’s corruption and even criticized Dick Cheney:

• The Justice Department confirms things are even worse than we feared
• Why the Michael Flynn case still matters
• William Barr has gone rogue

Of course, Grassley’s known and likely sources say far more partisan things online all the time.

Nevertheless Chris Wray has, per his norm, let Thibault weather the attack campaign alone, treating him as the legitimate subject of scrutiny as they have Peter Strzok and Lisa Page and Brian Auten and Jim Baker — every FBI agent except those (like John Durham’s cherished Cyber agents) who help sustain conspiracy theories favored by Trump and his allies.

What I wanted was someone from the FBI — because they know the truth — was someone to defend me after 26 years. I understand they can’t defend every allegation that’s made, so — I wish they would have. Right? I didn’t have that. And so that’s how I felt was I just wanted a defense. And I’m not blaming the FBI, because if they would respond to accusations against FBI agents from the media, they would be doing that a lot. So I’m not special.

But, when those accusations were made against me in July, I was, like, outraged. Why — no FBI agent that I know would put their reputation and honor on the line just to square up. They wouldn’t do that.

From there, Grassley and Jim Jordan have built entire pyramids of conspiracy theories, claiming that the guy who opened the investigations against William Jefferson and Jesse Jackson Jr and who rushed to open an investigation based solely off Schweizer’s Clinton Cash in 2016 abusively intervened to shut down — all of it! — the Hunter Biden investigation in 2020. All because, after several warnings about Schweizer, Thibault didn’t ignore warnings that Steve Bannon’s close associate, Schweizer, could discredit the Hutner Biden investigation (at a time when Bannon himself was coordinating with Guo Wengui).

Over the course of most of a day, Thibault addressed one after another of these conspiracy theories. One reason why Thibault ordered two agents to shut down an informant — Schweizer has since confirmed it was him — was because Schweizer was a less defensible source for allegations against Hunter Biden at trial than whatever means by which — including, undoubtedly, the laptop passed on by John Paul Mac Isaac — Delaware had already gotten materials on Hunter Biden. Using Schweizer rather than the sources Delaware already had, “could harm a case. It could cause problems when you get to prosecution,” Thibault explained that the Supervisory Special Agent, Joe Gordon had informed him in early October 2020, “and to open doors for defense attorneys.”

Within days of Gordon’s warning that Schweizer was an unwelcome source, the head of the Public Corruption Unit contacted Thibault to raise other concerns about Schweizer. In an October 21, 2020 classified briefing, members of the Foreign Intelligence Task Force provided more context, not just on Schweizer. The two warnings, together, led Thibault to instruct two agents to shut down Schweizer, someone less credible than Christopher Steele.

That’s probably what led to the complaints to Grassley.

One of the agents, Thomas Olohan, wrote a long memo claiming that Thibault was biased against Trump, before he left the FBI to join the Heritage Foundation. The other, whom Thibault had earlier mentored and considered a friend, would do more than that, as we’ll see.

It would have been three and four days after that when Thibault exchanged calls with Stefan Passantino regarding whether they could selectively image Tony Bobulinksi’s phones, which Jordan found suspect because, in an attempt to shield the investigation, the FBI had Bobulinski speak to the Washington Field Office rather than Baltimore. Jordan repeatedly invented conspiracy theories about of efforts to protect the investigation into Joe Biden’s son.

Jordan’s staffers also focused on Thibault’s role, like that of everyone else in the DC area, in investigating January 6. Except for his minor role in drafting the memo opening the investigation into the fake electors in 2022, Thibault’s role in investigating the attack on the Capitol was limited to freeing up his agents to help deal with the initial surge. Again, Jordan recycled Grassley’s conspiracy theories to treat any FBI agent who didn’t focus primarily on Trump’s enemies as suspect.

Tellingly, however, Jordan and his staffers asked no question about how the same agent who tried to open Schweizer as a source bypassed Thibault, who considered her a friend, to try to chase down the Italygate conspiracy theory months after Richard Donoghue’s judgement that it was “pure insanity” was published.

[I]t first came to my attention when I got a call from — a call from this supervisor, Special Agent from CR-15, and he said: Look, my agents are trying to do an interview of a subject with regard to election fraud, and the subject is in Italy. And he told me that they had tried to get the Legal Attache Office in Rome to do the interview and that they had declined.

Then they had tried to get funding through FBI Headquarters, Public Corruption Unit, to travel over to Italy to do the interview of this person, a potential witness who was in jail. And so I just got briefed on that.

[snip]

So I got off the phone with them, and my next call was to the Public Corruption Unit chief at headquarters, and I said: Hey, what’s the problem with funding?

And he goes: Are you kidding me, basically.

And I go: No.

And he goes: Do you know that this is to support an opening of a case that’s been sent to the Public Corruption Unit as a draft?

I said: I don’t know about that.

[snip]

He’s assuming at the time that I would have seen this because … Because of the gravity of the allegation and what it meant, he couldn’t believe that I hadn’t been briefed on it. He actually thought, I think, that I was approving it —

[snip]

So the head of the Public Corruption Unit tells me that he has received an email forwarded to him from Public Integrity, and it contains a draft opening language, and he was shocked that I didn’t know about this. Because of the type of case it was, you would expect that the ASAC would be in the loop.

[snip]

[S]o I’m trying to do due diligence. And, look, this isn’t the ASAC’s job. But, at this point, I was sort of losing some confidence.

[snip]

Because I wasn’t told about this, and even in my — I wasn’t told about it, number one. But, number two, when I was having conversations with people about this, no one told me — they didn’t raise Italygate. I wasn’t told about what — the allegation that this had previously been reviewed by, like, the Deputy Attorney General had made that comment. I wasn’t provided situational awareness. Right?

[snip]

6 months later, people want to travel halfway around the world to talk to someone who’s in prison. Any FBI agents knows, number one, first of all, an argument can be raised — and it was raised by people when we were discussing this at the squad level: Well, Tim, we talk to people all the time that appear to have kind of whacky theories.

And I was, like: Yeah, we might. We might go down the road to Manassas and talk to someone about some whacky theory. On a low-level case, we do do that.

But I think, you know, the situational awareness that I was gaining as an ASAC and working consistently with headquarters and learning, that Public Corruption Unit chief was unbelievable in terms of his knowledge of foreign influence. I had the benefit of that information. The case agents here did not.

[snip]

[T]here’s a term in the Bureau I learned a long time ago. You’re either working a source, or they’re working you. I was concerned that there wasn’t an element of 267 savviness here on the agent’s behalf, that maybe this source was working her. Q In what way? A It just seemed to me that, you know, you’re going and you’re trying to open a case, but you haven’t asked the very basic questions, like who — I couldn’t understand how they were trying to work a case without — we’ve got all the resources in the Federal Government to find out if a breach of information or a breach of data had occurred. We’ve got CISA. We’ve got the NSA.

[snip]

I was concerned that there was a lack of investigative rigor and the judgment issue, yes, because I wasn’t allowed to intervene, you know, where an ASAC is there for to help guide. This isn’t how CR-15 works cases. I was on that squad. We’re the flagship public corruption squad in the country. This isn’t how it’s done.

Jordan and his staffers expressed no interest or concern that the Public Corruption team at FBI was chasing already discredited conspiracy theories halfway around the world.

In the aftermath of this incident, Thibault asked the supervisor of the squad what was going on. The response was that supervisors were raising concerns about uncharacteristic partisan discussions.

And he said that senior members of CR-15, he didn’t tell me who, but had raised concerns to him that there was uncharacteristically partisan discussions happening on the squad floor.

This is the DC public corruption group — as Thibault described it, “the flagship public corruption squad in the country.” And Thibault discovered the hard way that even agents he believed to be friends were going behind his back to chase the conspiracy theories Trump wanted to chase.

For Jordan, who could be second in line to the Presidency within days, this was all an exercise of finding something within attempts at revenge that would substantiate his belief that the guy who took down two Democratic members of Congress was biased against Republicans.

But for Gaetz — the guy whose coup creates the opportunity for Jordan to become Speaker — it was something else: an opportunity to sit silently so that he could spin a refusal to accept foreign dirt on Hunter Biden as cause to impeach his father.

With the exception of a detailed NYT report in May, the attack against Thibault has passed largely unnoticed in the mainstream press, even as frothy right wingers have continued to impugn yet another stuff lifetime Feeb as a partisan simply because he treated Trump just like he treated the Democratic members of Congress he pursued.

But this Grassley-to-Jordan conveyor belt of bullshit continues to churn away, turning disgruntled hacks with allegations but no evidence into the enforcement wing of their effort to weaponize government.

I’m going to have to come back and explain the obvious holes in Trump’s argument that he has absolute immunity to commit crimes to steal the election.

But here’s the Tl;dr:

He argues that because he was acquitted in his impeachment trial, he cannot be held accountable (even though numerous Senators said they voted as they did knowing he could be held criminally liable).

He’s misreading his claimed citations, especially the amicus DOJ submitted in Blassingame. Here’s that amicus for your comparison. And here’s Amit Mehta’s opinion in Thompson, which the amicus addressed. Here’s a link to Nixon v. Fitzgerald, the civil case clearly about official acts on which Trump primarily relies.

His spinning the scope of the indictment (importantly, to exclude all claim of incitement, which as I noted DOJ just laid out).

The indictment alleges that President Trump took a series of actions that form the basis of its charges. These acts fall into five basic categories. The indictment alleges that President Trump, while he was still President: (1) made public statements about the administration of the federal election, and posted Tweets about the administration of the federal election; (2) communicated with senior Department of Justice (“DOJ”) officials about investigating election fraud and about choosing the leadership of DOJ; (3) communicated with state officials about the administration of the federal election and their exercise of official duties with respect to it; (4) communicated with the Vice President, in his legislative capacity as President of the Senate, and with other Members of Congress about the exercise of their official duties regarding the election certification; and (5) authorized or directed others to organize contingent slates of electors in furtherance of his attempts to convince the Vice President to exercise his official authority in a manner advocated for by President Trump.

And he interprets the Take Care clause to give the President to usurp the power of other parts of government — in this case, Congress and the states.

Third, Thompson’s conclusion that “[t]he President’s Take Care Clause duty … does not extend to government officials over whom he has no power or control,” id. at 78, proves far too much. That formulation entails that the President’s urging the Supreme Court to rule a certain way in a case to which the United States is not a party—for example, in an amicus brief filed by the Solicitor General—is a purely private action outside the “outer perimeter” of Executive responsibility, simply because the President has “no power or control” over Article III judges. Id. That is illogical. Rather, the Take Care duty must extend to exhorting other officials to exercise their responsibilities in a manner consistent with the President’s view of the public good— especially when the issue affects the civil rights of millions of federal voters and addresses a “bedrock function of the United States federal government.” Doc. 1, at 2.

One final thing you’ll note as you read: Trump focuses a lot more attention on issues that are genuinely a close call — his conspiring with Jeffrey Clark — than on his intrusions into Congress’ reserved duties. As noted, he entirely ignores his role in stoking violence.

Chuck Grassley continues,with the desperation and recklessness that may come from being the oldest member of Congress, to try to find something scandalous in the Hunter Biden investigation that won’t fizzle upon closer scrutiny.

I’m not sure precisely what the first complaint is about. Since Kenneth Polite resigned as Assistant Attorney General for the Criminal Division in July, Nicole Argentieri has been Acting Assistant Attorney General at the Criminal Division. Before that she had been Polite’s Principal Deputy. Prior to returning to DOJ (she worked for a time as an AUSA in EDNY), she was a partner at O’Melveny & Myers in New York. I’m not sure if that’s what Grassley is complaining about. In any case, since David Weiss is Special Counsel, it wouldn’t matter, as AAG CRM would have little to no involvement.

Grassley’s other complaint is that Hampton Dellinger, current AAG for Legal Policy, just got nominated to be the other kind of Special Counsel, the guy in charge of Whistleblower Protection Act and Hatch Act violations. Almost a decade ago, both Dellinger and Hunter Biden had ties to Boies Schiller. Dellinger and Hunter attended the same dinner in March 2014.

The Office of Special Counsel would have even less role in overseeing Special Counsel David Weiss’ activities than Argentieri would. He would, however, have a role in deciding whether Gary Shapely was really a whistleblower or was, instead, a partisan leaker, leaking protected IRS and grand jury information. He would have a role in reviewing whatever it is that Shapley was hiding when he refused to turn over his emails in March 2022 and tried to hide in October 2022, as concerns about leaks accelerated. He would have a role in deciding whether those things undercut his claims, now, to be a whistleblower using the proper channels.

That is, Grassley isn’t worried about the prosecution of Hunter Biden with his latest complaint. He’s worried about any scrutiny of Gary Shapley (and Joseph Ziegler).

And that’s why I find the following details interesting.

In a September 3, 2020 email, Joseph Ziegler included the investigation into Hunter Biden — pursued by Chuck Grassley and Ron Johnson — in his agenda for a meeting that day.

A memo that may have been written by Gary Shapley in December 2020 complains that investigators were not sharing details of the investigation with members of Congress.

The USAO and FBI received congressional inquiries concerning this investigation and have repeatedly ignored their requests, openly mocking the members of Congress who made the requests.

Chuck Grassley was one of those members of Congress. That December 2020 memo is also where the claim that a leak that month came from DOJ rather than investigators.

Another monthly memo Shapley submitted, this one from May 2021, again complained that investigators weren’t compromising the investigation so as to share details with members of Congress.

The USAO and FBI received congressional inquiries concerning this investigation and it’s believed they have ignored their requests.

Chuck Grassley was one of those members of Congress.

In April 2022, Bill Haggerty asked Merrick Garland about the Hunter Biden investigation, to which he responded that Weiss was supervising the investigation and “he is in charge of that investigation; there will not be interference of any political or improper kind.”

In September 2022, Chuck Grassley claimed to have whistleblower information that Tim Thibault shut down an investigative lead on the Hunter Biden investigation. Reports of Thibault’s own testimony, among other details, reveal that this pertained to using Peter Schweitzer as an FBI informant — a more problematic choice to be an FBI informant than using Christopher Steele (since Steele was not a known partisan propagandist), and therefore a wild backflip on Grassley’s earlier concerns about dodgy informants. And Thibault had actually approved keeping Schweitzer as a source, until an FBI agent closer to the case alerted him to problems with doing so. Thibault was retaliated against as a result, in significant part because of Grassley’s misrepresentation of what happened.

I’ll return to the way that Shapley ignored warnings going back months before October 2022 that David Weiss wouldn’t charge Hunter for 2014 and 2015. I’ll return to the way that Shapley ignored warnings that the case would not be charged until after November 2022, and possibly not even until 2023.

What we now know is that the key detail in his otherwise unreliable report from the October 7 meeting — that David Weiss said he “is not the deciding person” on whether to charge Hunter Biden — is not corroborated by any other witness who attended that meeting. Darren Waldon, his supervisor, described that what Weiss actually said pertained to a description of process, “the process in order to get the case indicted and subsequently prosecuted.”

Shapley made claims that were not backed even by his own handwritten notes.

And yet that is the core of his claim to be a whistleblower: That’s the basis of Gary Shapley’s first publicly claimed reason for coming to Congress — the October 7, 2022 meeting, which Shapley’s attorney Mark Lytle publicly released (in such a way that journalists all knew it pertained to Hunter Biden) in April: the claim that what David Weiss said on October 7 conflicted with what Merrick Garland had told Bill Haggerty in April 2022.

Shapley’s October 7 memorialization, which doesn’t match his own notes and hasn’t been corroborated by other witnesses, is the basis of Gary Shapley’s claim to be a whistleblower, a claim that might be reviewed by Office of Special Counsel.

We also know that Gary Shapley only claims — in a really weird memorialization, provided in lieu of original notes, that writes out “REDACTED” — to have formally become a whistleblower on January 4, 2023, the day Republicans took over the House.

In that memorialization, Shapley clearly states that his lawyer has already “participated in calls and/or meetings” with “the Congressional Judiciary committees.”

In the memorialization (again, provided in lieu of Shapley’s notes, which have shown discrepancies in the past), Shapley predicted that,

there may be allegations against him, that he believes will be nefarious, from DOJ/USAO and that he hoped the agency would support him during that. [Michael Batdorf] stated that he had not heard of an any allegations made against Shapley.

We also know that on January 25, Shapley asked to take leave so he could — among other things — meet with congressional committees and Inspectors General, a request Michael Batdorf said should not come out of his paid leave. By the time of Shapley’s first (known) testimony in May, he had not yet personally met with any Inspectors General investigators; rather, his attorneys had made disclosures to them. And, as noted, the first formal outreach to Congress was on April 19.

In that letter on April 19, Mark Lytle made absolutely not mention of earlier outreach to the Judiciary Committees.

Despite serious risks of retaliation, my client is offering to provide you with information necessary to exercise your constitutional oversight function and wishes to make the disclosures in a non-partisan manner to the leadership of the relevant committees on both sides of the political aisle.

My client has already made legally protected disclosures at the IRS, through counsel to the U.S. Treasury Inspector General for Tax Administration, and to the Department of Justice, Office of Inspector General.

That is, the claims that Lytle made in that April 19 letter seem to conflict with what Shapely wrote on January 6.

In any case, what was Shapley doing in the two months he was taking leave when he was not yet known to have formally reached out to Congress?

In July, immediately after testimony from Ziegler — who was attending to Congress’ interest in this investigation in 2020 — and Shapley — who was furious that investigators weren’t compromising the investigation to meet the interests of Congress that same year, Chuck Grassley burned what Republicans all claim had been a credible FBI informant in order to feed the conspiracy theories.

Chuck Grassley is worried that a guy who had dinner with Hunter Biden nine years ago might become Special Counsel. He’s worried about that, but not that one of his former staffers went from OSC to the Merit System Protection Board to serving as Gary Shapley’s PR person months after (per Shapley’s own memorialization) he was already reachng out to Congress.

Leavitt began his investigative career working on the Senate Judiciary Committee staff of Senator Chuck Grassley (R-Iowa), where he helped whistleblowers expose schemes like Operation Fast and Furious, the gunwalking scandal that armed the murderers of a U.S. Border Patrol Agent. He also served as Senator Grassley’s chief whistleblower policy advisor, leading the introduction of the first Senate resolutions recognizing National Whistleblower Appreciation Day and the establishment of the Senate Whistleblower Protection Caucus.

In 2015 Leavitt joined the House Oversight and Government Reform Committee staff of Chairman Jason Chaffetz (R-Utah). There he worked with dozens of whistleblowers from the U.S. Secret Service to break news of high-profile misconduct and security breaches. He also investigated Hillary Clinton’s use of a private email server while Secretary of State, the FBI’s failure to hold her accountable, and politicization at the FBI. He negotiated the passage of the FBI Whistleblower Protection Act of 2016.

In 2017 Leavitt was appointed as Principal Deputy Special Counsel at the Office of Special Counsel, where he helped reform OSC’s whistleblower disclosure program and directed a reorganization of OSC’s intake and investigative process. He also served as Acting Special Counsel. In late 2018 Leavitt was appointed as the General Counsel of the Merit Systems Protection Board, and for three years served as the acting head of that agency. In 2022 the U.S. Senate confirmed him with bipartisan support as the Republican Member of the Board, a position he held for one year.

Chuck Grassley seems to be panicked that a very carefully orchestrated effort to retroactively pitch Shapley as a whistleblower using formal channels might face real scrutiny.

Given that both Zeigler and Shapley seemed to have more concern about Congress’ efforts than the formal investigation starting before Joe Biden became President, that’s not all that surprising.

Since the spring (when I first started writing this post), I’ve been trying to express what I think Elon Musk intended to do with his $44 billion purchase of Twitter, to turn it into a Machine for Fascism.

Ben Collins wrote a piece — which he has been working on even longer than I have on this post — that led me to return to it.

Collins returns to some texts sent to Elmo in April 2022, just before he bought Twitter, which referenced an unsigned post published at Revolver News laying out a plan for Twitter.

On the day that public records revealed that Elon Musk had become Twitter’s biggest shareholder, an unknown sender texted the billionaire and recommended an article imploring him to acquire the social network outright.

Musk’s purchase of Twitter, the 3,000-word anonymous article said, would amount to a “declaration of war against the Globalist American Empire.” The sender of the texts was offering Musk, the Tesla and SpaceX CEO, a playbook for the takeover and transformation of Twitter. As the anniversary of Musk’s purchase approaches, the identity of the sender remains unknown.

The text messages described a series of actions Musk should take after he gained full control of the social media platform: “Step 1: Blame the platform for its users; Step 2: Coordinated pressure campaign; Step 3: Exodus of the Bluechecks; Step 4: Deplatforming.”

The messages from the unknown sender were revealed in a court filing last year as evidence in a lawsuit Twitter brought against Musk after he tried to back out of buying it. The redacted documents were unearthed by The Chancery Daily, an independent legal publication covering proceedings before the Delaware Court of Chancery.

The wording of the texts matches the subtitles of the article, “The Battle of the Century: Here’s What Happens if Elon Musk Buys Twitter,” which had been published three days earlier on the right-wing website revolver.news.

Collins lays out that the post significantly predicted what has happened since, including an attack on the Anti-Defamation League.

The article on Beattie’s site begins with a baseless claim that censorship on Twitter cost President Donald Trump the 2020 election. “Free speech online is what enabled the Trump revolution in 2016,” the anonymous author wrote. “If the Internet had been as free in 2020 as it was four years before, Trump would have cruised to reelection.”

The author said that “Step 1” after a Musk takeover would be: “Blame the platform for its users.” He or she predicted that “Twitter would be blamed for every so-called act of ‘racism’ ‘sexism’ and ‘transphobia’ occurring on its platform.”

After Musk’s purchase of Twitter was finalized in October 2022, he allowed previously suspended accounts to return. Among them, he restored the account of Trump, whom Twitter had banned after the Jan. 6 Capitol insurrection, as well as the personal accounts of far-right Rep. Marjorie Taylor Greene, R-Ga., and the founder of a neo-Nazi website, Andrew Anglin.

The article predicted that “Step 2” would involve a “Coordinated pressure campaign” by the ADL and other nonprofit groups to get Musk to reinstate the banned accounts. “A vast constellation of activists and non-profits” will lurch into action to “put more and more pressure on the company to change its ways,” the article reads.

The next step, the revolver.news article predicted, would be the “Exodus of the bluechecks.” The term “bluechecks” refers to a former identity verification system on Twitter that confirmed the authenticity of the accounts of celebrities, public figures and journalists.

Musk experimented with and ultimately eliminated Twitter’s verification system of “bluechecks.” As the article predicted, the removal resulted in a public backlash and an exponential drop in advertisers and revenue. Other developments, including Musk’s drastically reducing the number of staffers who monitor tweets and a rise in hate speech, also contributed to the dynamic.

The article predicted that a final step, “Step 4,” would be the “deplatforming” of Twitter itself. He said a Musk-owned Twitter would face the same fate as Parler, a platform that presented itself as a “free speech” home for the right. After numerous calls for violence on Jan. 6 were posted on Parler, Google and Apple removed it from their app stores on the grounds that it had allowed too many posts that promoted violence, crime and misinformation.

Collins notes that the identity of the person who wrote the post on Revolver and sent the texts to Elmo has never been revealed. He seems to think it is Darren Beattie, the publisher of Revolver, whose white supremacist sympathies got him fired from Trump’s White House.

I’m not convinced the post was from Beattie. Others made a case that the person who texted Elmo was Stephen Miller (not least because there’s a redaction where his name might appear elsewhere in the court filing).

But I think Collins’ argument — that Elmo adopted a plan to use Twitter as a Machine for Fascism from the start, guided in part by that post, a post that has some tie to Russophile propagandist Beattie — persuasive.

Then again, I’ve already been thinking about the way that Elmo was trying to perfect a Machine for Fascism.

2016: Professionalizing Trolling

One thing that got me thinking about Elmo’s goals for Twitter came from reading the chatlogs from several Twitter listservs that far right trolls used to coordinate during the 2016 election, introduced as exhibits in Douglass Mackey’s trial for attempting to convince Hillary voters to text their votes rather than casting them at polling places.

The trolls believed, in real time, that their efforts were historic.

On the day Trump sealed his primary win in 2016, for example, Daily Stormer webmaster Andrew “Weev” Auernheimer boasted on a Fed Free Hate Chat that, “it’s fucking astonishing how much reach our little group here has between us, and it’ll solidify and grow after the general.” “This is where it all started,” Douglass Mackey replied, according to exhibits introduced at his trial. “We did it.”

After Trump’s November win became clear, Microchip — a key part of professionalizing this effort — declared, “We are making history,” before he immediately started pitching the idea of flipping a European election (as far right trolls attempted with Emmanuel Macron’s race in 2017) and winning the 2020 election.

By that point, the trolls had been working on–and fine tuning–this effort for at least a year.

Most chilling in the back-story presented in exhibits submitted at trial is the description of how Weev almost groomed Mackey, starting in 2015. “Thanks to weev I am inproving my rhetoric. People love it,” Mackey said in the Fed Free Hate Chat in November 2015. He boasted that his “exploding” twitter account was averaging 300,000 impressions every day, before he mused, “I just hope all this shitlording goes real life.” Two days later Weev admired that, “ricky’s audience expands rapidly, he’s now a leading polemicist” [Mackey did all this under the pseudonym Ricky Vaughn].

Weev and Mackey explained their ideological goals. “The goal is to give people simple lines they can share with family or around the water cooler,” Mackey described to Bidenshairplugs in September 2015. When Weev proposed in January 2016 that he and Mackey write a guide to trolling, he described the project as “ideological disruption” and “psychological loldongs terrorism.” The Daily Stormer webmaster boasted, “i am absolutely sure we can get anyone to do or believe anything as long as we come up with the right rhetorical formula and have people actually try to apply it consistently.” And so they explained the objectives to others. “[R]eally good memes go viral,” Mackey explained to AmericanMex067 on May 10, 2016. “really really good memes become embedded in our consciousness.”

One method they used was “highjacking hashtags,” either infecting the pro-Hillary hashtags pushed by Hillary or filling anti-Trump hashtags with positive content.

Another was repetition. “repitition is key. \’Crooked Hillary created ISIS with Obama\’ repeat it again and again.” Trump hasn’t been repeating the same stupid attacks for 8 years because he’s uncreative or stupid. He’s doing it to intentionally troll America’s psyche.

A third was playing to the irrationality of people. HalleyBorderCol as she pitched the text to vote meme: people aren’t rational. a significant proportion of people who hear the rumour will NOT hear that the rumour has been debunked.”

One explicit goal was to use virality to get the mainstream press to pick up far right lines. Anthime “Baked Alaska” Gionet described that they needed some tabloid to pick up their false claims about celebrities supporting Trump. “We gotta orchestrate it so good that some shitty tabloid even picks it up.” As they were trying to get the Podesta emails to trend in October 2016, P0TUSTrump argued, “we need CNN wnd [sic] liberal news forced to cover it.”

Microchip testified to the methodology at trial.

Q What does it mean to hijack a hashtag?

A So I guess I can give you an example, is the easiest way. It’s like if you have a hashtag — back then like a Hillary Clinton hashtag called “I’m with her,” then what that would be is I would say, okay, let’s take “I’m with her” hashtag, because that’s what Hillary Clinton voters are going to be looking at, because that’s their hashtag, and then I would tweet out thousands of — of tweets of — well, for example, old videos of Hillary Clinton or Bill Clinton talking about, you know, immigration policy for back in the ’90s where they said: You know, we should shut down borders, kick out people from the USA. Anything that was disparaging of Hillary Clinton would be injected into that — into those tweets with that hashtag, so that would overflow to her voters and they’d see it and be shocked by it.

Q Is it safe to say that most of your followers were Trump supporters?

A Oh, yeah.

Q And so by hijacking, in the example you just gave a Hillary Clinton hashtag, “I am with her,” you’re getting your message out of your silo and in front of other people who might not ordinarily see it if you just posted the tweet?

A Yeah, I wanted to infect everything.

Q Was there a certain time of day that you believed tweeting would have a maximum impact?

A Yeah, so I had figured out that early morning eastern time that — well, it first started out with New York Times. I would see that they would — they would publish stories in the morning, so the people could catch that when they woke up. And some of the stories were absolutely ridiculous — sorry. Some of the stories were absolutely ridiculous that they would post that, you know, had really no relevance to what was going on in the world, but they would still end up on trending hashtags, right? And so, I thought about that and thought, you know, is there a way that I could do the same thing.

And so what I would do is before the New York Times would publish their — their information, I would spend the very early morning or evening seeding information into random hashtags, or a hashtag we created, so that by the time the morning came around, we had already had thousands of tweets in that tag that people would see because there wasn’t much activity on Twitter, so you could easily create a hashtag that would end up on the trending list by the time morning came around.

In the 2016 election, this methodology served to take memes directly from the Daily Stormer, launder them through 4Chan, then use Twitter to inject them into mainstream discourse. That’s the methodology the far right still uses, including Trump when he baits people to make his Truth Social tweets go viral on Twitter. Use Twitter to break out of far right silos and into those of Hillary supporters to recodify meaning, and ensure it all goes viral so lazy reporters at traditional outlets republish it for free, using such tweets to supplant rational discussion of other news.

And as Microchip testified, in trolling meaning and rational arguments don’t matter. Controversy does.

Q What was it about Podesta’s emails that you were sharing?

A That’s a good question.

So Podesta ‘s emails didn’t, in my opinion, have anything in particularly weird or strange about them, but my talent is to make things weird and strange so that there is a controversy. So I would take those emails and spin off other stories about the emails for the sole purpose of disparaging Hillary Clinton.

T[y]ing John Podesta to those emails, coming up with stories that had nothing to do with the emails but, you know, maybe had something to do with conspiracies of the day, and then his reputation would bleed over to Hillary Clinton, and then, because he was working for a campaign, Hillary Clinton would be disparaged.

Q So you’re essentially creating the appearance of some controversy or conspiracy associated with his emails and sharing that far and wide.

A That’s right.

Q Did you believe that what you were tweeting was true?

A No, and I didn’t care.

Q Did you fact-check any of it?

A No.

Q And so what was the ultimate purpose of that? What was your goal?

A To cause as much chaos as possible so that that would bleed over to Hillary Clinton and diminish her chance of winning.

The far right is still using this methodology to make the corrupt but not exceptional behavior of Hunter Biden into a topic that convinces half the electorate that Joe Biden is as corrupt as Donald Trump. They’ve used this methodology to get the vast majority of media outlets to chase Hunter Biden’s dick pics like six year old chasing soccer balls.

Back in 2016, the trolls had a good sense of how their efforts helped to support Trump’s electoral goals. In April 2016, for example, Baked Alaska pitched peeling off about a quarter of Bernie Sanders’ votes. “Imagine if we got even 25% of bernie supporters to ragevote for trump.” On November 2, 2016, the same day he posted the meme that got him prosecuted, Mackey explained that the key to winning PA was “to drive up turnout with non-college whites, and limit black turnout.” One user, 1080p, seemed to have special skills — if not sources — to adopt the look and feel of both campaigns.

And this effort worked in close parallel to Trump’s efforts. As early as April, Baked Alaska invited Mackey to join a campaign slack “for more coordinated efforts.”

And there are several participants in the troll chatrooms whose actions or efforts to shield their true identities suggest they may be closely coordinating efforts as well.

Even in the unfettered world of 2016, Twitter’s anemic efforts to limit the trolls’ manipulation of Twitter was a common point of discussion.

For example, as the trolls were trying to get Podesta’s emails trending, HalleyBorderCol complained, “we haven’t been able to get anything to trend for aaaages … unless they changed their algorithms, they must be watching what we’re doing.” Later in October as they were launching two of their last meme campaigns, ImmigrationX complained,”I see Jack in full force today suppressing hashtags.”

Both Mackey and Microchip were banned multiple times. “Microchip get banned again??” was a common refrain. “glad to be back,” Microchip claimed on September 24. “they just banned me two times in 3 mins.” He warned others to follow-back slowly to evade an auto-detect for newly created accounts. “some folks are being banned right now, apparently, so if I’m banned for some reason, I’ll be right back,” Microchip warned on October 30. “Be good till nov 9th brother! We need your ass!” another troll said on the day Mackey was banned; at the time Microchip was trending better than Trump himself. Mackey’s third ban in this period, in response to the tweets a jury has now deemed to be criminal, came with involvement from Jack Dorsey personally.

Both testified at trial about the techniques they used to thwart the bans (including using a gifted account to return quickly, in Mackey’s case). Microchip built banning, and bot-based restoration and magnification, into his automation process.

2020: Insurrection

The far right trolls succeeded in helping Donald Trump hijack American consciousness in 2016 to get elected.

By the time the trolls — some of whom moved into far more powerful positions with Trump’s election — tried again in 2020, the social media companies had put far more controls on the kinds of viral disinformation that trolls had used with such success in 2016.

As Yoel Roth explained during this year’s Twitter hearing, the social media companies expanded their moderation efforts with the support of a bipartisan consensus formulated in response to Russia’s (far less successful than the far right troll efforts) 2016 interference efforts.

Rep. Shontel Brown

So Mr. Roth, in a recent interview you stated, and I quote, beginning in 2017, every platform Twitter included, started to invest really heavily in building out an election integrity function. So I ask, were those investments driven in part by bipartisan concerns raised by Congress and the US government after the Russian influence operation in the 2016 presidential election?

Yoel Roth:

Thank you for the question. Yes. Those concerns were fundamentally bipartisan. The Senate’s investigation of Russian active measures was a bipartisan effort. The report was bipartisan, and I think we all share concerns with what Russia is doing to meddle in our elections.

But in advance of the election, Trump ratcheted up his attacks on moderation, personalizing that with a bullying attack on Roth himself.

In the spring of 2020, after years of internal debate, my team decided that Twitter should apply a label to a tweet of then-President Trump’s that asserted that voting by mail is fraud-prone, and that the coming election would be “rigged.” “Get the facts about mail-in ballots,” the label read.

On May 27, the morning after the label went up, the White House senior adviser Kellyanne Conway publicly identified me as the head of Twitter’s site integrity team. The next day, The New York Post put several of my tweets making fun of Mr. Trump and other Republicans on its cover. I had posted them years earlier, when I was a student and had a tiny social media following of mostly my friends and family. Now, they were front-page news. Later that day, Mr. Trump tweeted that I was a “hater.”

Legions of Twitter users, most of whom days prior had no idea who I was or what my job entailed, began a campaign of online harassment that lasted months, calling for me to be fired, jailed or killed. The volume of Twitter notifications crashed my phone. Friends I hadn’t heard from in years expressed their concern. On Instagram, old vacation photos and pictures of my dog were flooded with threatening comments and insults.

In reality, though, efforts to moderate disinformation did little to diminish the import of social media to right wing political efforts. During the election, the most effective trolls were mostly overt top associates of Donald Trump, or Trump himself, as this table I keep posting shows.

The table, which appears in a Stanford University’s Election Integrity Project report on the election, does not reflect use of disinformation (as the far right complains when they see it). Rather, it measures efficacy. Of a set of false narratives — some good faith mistakes, some intentional propaganda — that circulated on Twitter in advance of the election, this table shows who disseminated the false narratives that achieved the most reach. The false narratives disseminated most broadly were disseminated by Donald Trump, his two adult sons, Tom Fitton, Jack Posobiec, Gateway Pundit, Charlie Kirk, and Catturd. The least recognized name on this list, Mike Roman, was among the 19 people indicted by Fani Willis for efforts to steal the election in Georgia. Trump’s Acting Director of National Intelligence, Ric Grenell, even got into the game (which is unsurprising, given that before he was made Ambassador to Germany, he was mostly just a far right troll).

This is a measure of how central social media was to Trump’s efforts to discredit, both before and after the election, the well-run election that he lost.

The far right also likes to claim (nonsensically, on its face, because these numbers reflect measurements taken after the election) that these narratives were censored. At most, and in significant part because Twitter refused to apply its own rules about disinformation to high profile accounts including but not limited to Trump, this disinformation was labeled.

As the Draft January 6 Social Media Report described, they had some success at labeling disinformation, albeit with millions of impressions before Twitter could slap on a label.

Twitter’s response to violent rhetoric is the most relevant affect it had on January 6th, but the company’s larger civic integrity efforts relied heavily on labeling and downranking. In June of 2019, Twitter announced that it would label tweets from world leaders that violate its policies “but are in the public interest” with an “interstitial,” or a click-through warning users must bypass before viewing the content.71 In October of 2020, the company introduced an emergency form of this interstitial for high-profile tweets in violation of its civic integrity policy.” According to information provided by Twitter, the company applied this interstitial to 456 tweets between October 27″ and November 7″, when the election was called for then-President-Elect Joe Biden. After the election was called, Twitter stopped applying this interstitial.”* From the information provided by Twitter, it appears these interstitials had a measurable effect on exposure to harmful content—but that effect ceased in the crucial weeks before January 6th.

The speed with which Twitter labels a tweet obviously impacts how many users see the unlabeled (mis)information and how many see the label. For PIIs applied to high-profile violations of the civic integrity policy, about 45% of the 456 labeled tweets were treated within an hour of publication, and half the impressions on those tweets occurred after Twitter applied the interstitial. This number rose to more than eighty percent during election week, when staffing resources for civic issues were at their highest; after the election, staff were reassigned to broader enforcement work.” In answers to Select Committee questions during a briefing on the company’s civic integrity policy, Twitter staff estimates that PIIs prevented more than 304 million impressions on violative content. But at an 80% success rate, this still leaves millions of impressions.

But this labeling effort stopped after the election.

According to unreliable testimony from Brandon Straka the Stop the Steal effort started on Twitter. According to equally unreliable testimony from Ali Alexander, he primarily used Twitter to publicize and fundraise for the effort.

It was, per the Election Integrity Project, the second most successful disinformation after the Dominion propaganda.

And the January 6 Social Media Report describes that STS grew organically on Facebook after being launched on Twitter, with Facebook playing a losing game of whack-a-mole against new STS groups.

But as Alexander described, after Trump started promoting the effort on December 19, the role he would place became much easier.

Twitter wasn’t the only thing that brought a mob of people to DC and inspired many to attack the Capitol. There were right wing social media sites that may have been more important for organizing. But Twitter was an irreplaceable part of what happened.

The lesson of the 2020 election and January 6, if you care about democracy, is that Twitter and other social media companies never did enough moderation of violent speech and disinformation, and halted much of what they were doing after the election, laying the ground work for January 6.

The lesson of the 2020 election for trolls is that inadequate efforts to moderate disinformation during the election — including the Hunter Biden “laptop” operation — prevented Trump from pulling off a repeat of 2016. The lesson of January 6, for far right trolls, is that unfettered exploitation of social media might allow them to pull off a violent coup.

That’s the critical background leading up to Elmo’s purchase of Twitter.

2024: Boosting Nazis

The first thing Elmo did after purchasing Twitter was to let the far right back on.

More recently, he has started paying them money that ads don’t cover to subsidize their propaganda.

The second thing he did, with the Twitter Files, was to sow false claims about the effect and value of the moderation put into place in the wake of 2016 — an effort Republicans in Congress subsequently joined. The third thing Elmo did was to ratchet up the cost for the API, thereby making visibility into how Twitter works asymmetric, available to rich corporations and (reportedly) his Saudi investors, but newly unavailable to academic researchers working transparently. He has also reversed throttling for state-owned media, resulting in an immediate increase in propaganda.

He has done that while making it easier for authoritarian countries to take down content.

Elmo attempted, unsuccessfully, to monetize the site in ways that would insulate it from concerns about far right views or violence.

For months, Elmo, his favored trolls, and Republicans in Congress have demonized the work of NGOs that make the exploitation of Twitter by the far right visible. More recently, Elmo has started suing them, raising the cost of tracking fascism on Twitter yet more.

Roth recently wrote a NYT column that, in addition to describing the serial, dangerous bullying — first from Trump, then from Elmo — that this pressure campaign includes, laid out the stakes.

Bit by bit, hearing by hearing, these campaigns are systematically eroding hard-won improvements in the safety and integrity of online platforms — with the individuals doing this work bearing the most direct costs.

Tech platforms are retreating from their efforts to protect election security and slow the spread of online disinformation. Amid a broader climate of belt-tightening, companies have pulled back especially hard on their trust and safety efforts. As they face mounting pressure from a hostile Congress, these choices are as rational as they are dangerous.

In 2016, far right trolls helped to give Donald Trump the presidency. In 2020, their efforts to do again were thwarted — barely — by attempts to limit the impact of disinformation and violence.

But in advance of 2024, Elmo has reversed all that. Xitter has preferentially valued far right speech, starting with Elmo’s increasingly radicalized rants. More importantly, Xitter has preferentially valued speech that totally undercuts rational thought.

Elmo has made Xitter a Machine for irrational far right hate speech.

The one thing that may save us is that this Machine for Fascism has destroyed Xitter’s core value to aspiring fascists: it has destroyed Xitter’s role as a public square, from which normal people might find valuable news. In the process, Elmo has destroyed Twitter’s key role in bridging from the far right to mainstream readers.

But it’s not for lack of trying to make Xitter a Machine for Fascism.

DOJ’s reply on its bid for a gag on Donald Trump has a number of the things you’d expect.

It has a list of the seven people Trump has threatened since the last filing on this, including Trump’s vicious attack on Mark Milley.

With each filing, DOJ just keeps adding to the list of people Trump either incited or targeted.

The government also notes that Trump may have broken the law — or claimed he did, for political benefit — when he claimed to have purchased a Glock.

9 The defendant recently was caught potentially violating his conditions of release, and tried to walk that back in similar fashion. In particular, on September 25, the defendant’s campaign spokesman posted a video of the defendant in the Palmetto State Armory, a Federal Firearms Licensee in Summerville, South Carolina. The video posted by the spokesman showed the defendant holding a Glock pistol with the defendant’s likeness etched into it. The defendant stated, “I’ve got to buy one,” and posed for pictures with the FFL owners. The defendant’s spokesman captioned the video Tweet with the representation that the defendant had purchased the pistol, exclaiming, “President Trump purchases a @GLOCKInc in South Carolina!” The spokesman subsequently deleted the post and retracted his statement, saying that the defendant “did not purchase or take possession of the firearm” (a claim directly contradicted by the video showing the defendant possessing the pistol). See Fox News, Trump campaign walks back claim former president purchased Glock amid questions about legality (Sept. 25, 2023), https://www.foxnews.com/politics/trump-campaign-walks-back-claim-former-presidentpurchased-glock-amid-questions-about-legality (accessed Sept. 26, 2023). Despite his spokesperson’s retraction, the Defendant then re-posted a video of the incident posted by one of his followers with the caption, “MY PRESIDENT Trump just bought a Golden Glock before his rally in South Carolina after being arrested 4 TIMES in a year.”

The defendant either purchased a gun in violation of the law and his conditions of release, or seeks to benefit from his supporters’ mistaken belief that he did so. It would be a separate federal crime, and thus a violation of the defendant’s conditions of release, for him to purchase a gun while this felony indictment is pending. See 18 U.S.C. § 922(n).

Notably, the government points to 18 USC 922 as its basis to claim it would be illegal for Trump to purchase a gun. His release conditions don’t prohibit him from owning a gun.

Trump won’t be charged on this. Which means it’ll be another thing Hunter Biden will use to show selective prosecution.

But I’m most interested DOJ’s rebuttal to Trump’s claim that Jack Smith improperly connected Trump to January 6 in his press conference announcing the indictment when he said Trump had, “fueled . . . an unprecedented assault on the seat of American democracy.”

The defendant seeks to deflect responsibility for his own prejudicial statements by claiming that the indictment in this case was “false and derogatory” and that the Special Counsel’s brief statement upon its unsealing was prejudicial because it ascribed to the defendant responsibility for the events of January 6, 2021—which, according to the defendant’s opposition, the indictment does not allege. ECF No. 60 at 19-20. The defendant is wrong.

[snip]

[T]he indictment does in fact clearly link the defendant and his actions to the events of January 6. It alleges—and at trial, the Government will prove—the following:

• The defendant’s criminal conspiracies targeted, in part, the January 6 certification and capitalized “on the widespread mistrust the [d]efendant was creating through pervasive and destabilizing lies about election fraud,” ECF No. 1 at ¶4.
• In advance of January 6, the defendant “urged his supporters to travel to Washington on the day of the certification proceeding, tweeting, ‘Big protest in D.C. on January 6th. Be there, will be wild!,’” id. at ¶87. He then “set the false expectation that the Vice President had the authority to and might use his ceremonial role at the certification proceeding to reverse the election outcome in [his] favor, id. at ¶96.
• Then, despite his awareness “that the crowd [ ] on January 6 was going to be ‘angry,’” id. at ¶98, on the morning of January 6, the defendant “decided to single out the Vice President in public remarks,” id. at ¶102, and “repeated knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding and exert pressure on the Vice President to take the fraudulent actions he had previously refused,” id. at ¶10d.
• Finally, on the afternoon of January 6, after “a large and angry crowd—including many individuals whom the [d]efendant had deceived into believing the Vice President could and might change the election results—violently attacked the Capitol and halted the proceeding,” the defendant exploited the disruption in furtherance of his efforts to obstruct the certification, id. at ¶10e.

In short, the indictment alleges that the defendant’s actions, including his campaign of knowingly false claims of election fraud, led to the events of January 6.

This is a very neat formula of the things Trump did to stoke the violence. The lies provided foundation for the rally which provided an opportunity to target Pence which provided the cause to send mobs to the Capitol. DOJ has been working on laying out this formula for 26 months. Here they lay it out in a few short paragraphs, one way to read a complex indictment.

More remarkably, it comes as part of a gag request that — while it mentioned Trump’s attacks on Pence after the fact — didn’t focus on Trump’s dangerous targeting of Pence to gin up the mob. The initial gag request looked at all the other lives Trump ruined by targeting them. But it didn’t focus on Pence.

Here, once again in the response to an invitation by Trump to do so, DOJ neatly lays out how Trump’s attacks on Pence were a key tool he used to direct the mob.