The Various Kinds of Georgia Crimes in the RICO Indictment

There’s so much good reporting out of Georgia that I’m going to mostly leave close coverage of the Georgia case to them going forward.

But the Georgia prosecution will interact with Jack Smith’s ongoing investigation in interesting ways. To explain how, I want to first show that the indictment is, fundamentally, about protecting the integrity of Georgia’s government and elections. To see that, it helps to read counts 2 through 41 before reading the RICO charge, which is laid out in 70 pages describing 161 overt acts, many of which took place outside of Georgia.

Those counts fall into the following groups:

Lies to and solicitation of Georgia officials

Count 2 though Count 7: False claims and illegal requests made, many by Rudy Giuliani, before the fake electors scheme. These were lies told to official bodies of Georgia state government, and charging them is an attempt to prevent corruption in state government.

Count 23 through Count 26 charge Rudy, Ray Smith, and Robert Cheeley with false claims and solicitations on December 30 — similar in structure and purpose to Counts 2 through 7.

Count 28 charges both Trump and Mark Meadows for the January 2 call to Brad Raffensperger. Count 29 charges Trump for the lies he told during the call.

Counts 38 and 39 charge Trump with lies and solicitations of Brad Raffensperger on September 17, 2021.

Fake electors

Count 8 through Count 19: These are a series of six paired charges tied to various kinds of fraud involved with the fake electors. In each pair, the first count charges David Shafer, Shawn Still, and Cathleen Latham for doing the fraudulent thing, and the second count charges Trump, Rudy, John Eastman, Ken Chesebro, Ray Smith, Robert Cheeley, and Mike Roman with soliciting the fraudulent thing. They’re a near parallel to the Michigan charges against the fake electors, except that in Georgia only the three most culpable fake electors are charged, and there’s a mirror charge for Trump’s side of the conspiracy.

Attempts to entrap Ruby Freeman

Counts 20 and 21 and : These charge two efforts to defraud Ruby Freeman by offering her help when in fact they were an attempt to entrap her.

Count 30 and Count 31 charge aspects of a plot to get Kanye’s publicist to travel from Illinois to Georgia to entrap Ruby Freeman into making false claims.

Lies about Georgia

Count 22 charges Jeffrey Clark for his attempts to get DOJ to claim the Georgia election was fraudulent.

Count 27 charges Trump and Eastman with lying about Georgia’s results in a lawsuit.

Tampering with Coffee County tabulators

Count 32 through Count 37 charge Sidney Powell, Latham, and two others for tampering with the Coffee County vote tabulators. Again, this has a parallel in the Michigan charges against Matt DePerno and two others.

Lies during the investigation

Count 40 charges David Shafer with false statements told during the investigation.

Count 41 charges Robert Cheeley with perjury for false claims made during the investigation.

As I understand it, these are the charges on which the RICO conspiracy is built. The RICO conspiracy gives prosecutors additional tools and penalties with which to prosecute this (similar to the conspiracy law charged at the federal level). But ultimately it is built on a series of crimes charged to protect the integrity of Georgia’s government. They stand for the principle that you can’t simply come into Georgia and lie and defraud in an attempt to get state officials to violate their oaths of office.

Update: Corrected spelling of Cheeley’s last name.

How James Comer’s Counsel, James Mandolfo, Conducts an Investigation

Amid the excitement yesterday, the Oversight Committee released the transcript of the now-retired FBI Agent who would have interviewed Hunter Biden if a bunch of things had gone differently on December 8, 2020.

Because I appear to be the only one who read the Gary Shapley and Joseph Ziegler interviews closely, I wanted to make sure to describe this one — to describe how James Comer’s counsel, James Mandolfo, simply ended the interview when the witness started describing how the rules about lawyers, sensitive persons, and elections — the same rules that Republicans claimed to care about with Carter Page — would have required the FBI to adopt less intrusive methods than they might otherwise have done.

As to the topic that the Oversight Committee cared about, the agent admitted he was upset that the Biden Transition Team learned of the interview in advance (though as he described, he only heard that from Gary Shapley). He also revealed that he and Shapley had another person to interview that day.

A We waited a period of time.    You know, I will add, it was frustrating, and I know supervisor number two was very frustrated, and I understood that frustration, but I also ‐‐ we had other ‐‐ another interview to conduct.    So after a certain period of time, and I don’t exactly recall how long, we transitioned to make an attempt to interview another ‐‐ or a witness as part of the investigation.

Shapley didn’t describe that detail. When being questioned by Democrats, the agent described that he simply moved on after this, and said he personally had not witnessed any politicization.

When Mandolfo asked for more background on Shapley’s claim that the FBI agent had asked, in May 2022, why the IRS weren’t asking for a Special Counsel, the agent’s attorney advised him not to answer on deliberative privilege basis.

The agent retired just a month after that, after the normal 20-year career at the FBI.

When the Democrats questioned the witness, though, he provided answers that were less helpful to James Comer’s conspiracy theories. He described how careful the FBI has to be when investigating attorneys and that such an investigation might require using least intrusive investigative methods. He described addition approvals required for Sensitive Investigative Matters. He described the care required during an election.

Effectively, he described that the FBI applied the rules required by the FBI’s investigative manual, the same ones that protected Donald Trump’s during the 2016 election.

Things got weirder when the Democratic staffers asked about the leaks. They appeared to be doing the same thing, basically getting this witness to explain why the things Shapley and Ziegler complained about all had ready explanations. And ultimately, the FBI agent did concede that if leaks got really bad it might make sense to reassign a team.

But when asked if he had ever been part of an investigation from which there were leaks, he denied it.

Q Generally speaking, do you think it could be problematic for agents’ views in 4 any ongoing investigation to be publicly reported or released to news sources?

A Yes.

Q And it could create problems potentially for the integrity of an investigation?

A Yes.

Q In your career, have you ever worked on an investigation in which there were leaks?    And you don’t need to be specific, just yes or no.

Mr. Zink [the Agent’s attorney]. Leaks to the press?

[Dem staffer]: To the press.

[Retired FBI Agent] Sorry. My pause is I’m thinking back through my career.

[Dem staffer] No, that’s fine.

[Retired FBI Agent] Not that I recall.

Wrong answer!!

The Hunter Biden investigation had several major leaks, starting in 2020, and continuing through the period when he retired (he was also part of the Duke Cunningham investigation, though I don’t recall major leaks from that).

Having not recalled that this investigation had serial major leaks, his answer about what he would do if he learned of one was still weirder.

[Retired FBI Agent] Not being part of one previously, I’d ‐‐ I, you know, believe it would 10 go to our Internal Investigations Section.    Whether there was ‐‐ now, if you’re asking if it  was an unsubstantiated allegation versus something I did believe happened, you know, then maybe potential removal of ‐‐ of, you know, the agent in question from the case to protect the integrity of the investigation.    You know, I’d want those steps to be taken.

[Dem staffer to Dem staffer] do you have any other questions before we stop?

[Dem staffer] So the question my colleague was asking you is there’s ‐‐ there’s an ongoing investigation. There’s a concern that there is a leak coming from someone on the investigative team, but ‐‐

Mr. Zink.    You mean generally or ‐‐

[Dem staffer] Generally.

Mr. Zink. Okay.

[Dem staffer] and ‐‐ but there is no clear answer as to who on the investigative team it is.    Would it be reasonable for management to consider removing the entire investigative team in order to protect the integrity of the investigation?

Ultimately the agent, who claimed he would have told his supervisor if there were a leak as there had been on this case which he didn’t acknowledge had been riddled by leaks, conceded that you might ultimately remove people from the team.

The discussion then turned to details about the investigation when someone — possibly the agent himself — asked to go off the record.

And that was it.

Mandolfo came back and ended the interview.

Mr. Zink. Just want to confirm with counsel for majority and minority that the terms “target,” “subject,” and “witness” as they were used in today’s questioning modify and relate to the FBI and Department’s investigation, not the grand jury’s investigation. Just confirming that.

Mr. Mandolfo. Yes. And just based upon the narrow scope and agreement that was formed amongst counsel and the parties that this would be limited to a very limited set of facts, we are now going to conclude with speaking with [Retired FBI Agent] at this time.

It’s not clear whether Mandolfo ended the interview because the retired agent realized he had violated grand jury rules (thus the clarification from his lawyer), whether he realized answering the question about other agencies would do so, or whether the discussion of leaks had been so unhelpful that Mandolfo had to stop.

But the tactic was a fairly telling indicator of what would happen if there were a substantive review of the investigation into Hunter Biden.

Perhaps we’ll now see some of that in discovery.

Indictments Ahead: Waiting on Fulton County GA [UPDATE-2]

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

Because discussion of the anticipated announcement of indictments by Fulton County, Georgia district attorney’s office is bleeding into other dedicated threads, I’m publishing a post for this purpose.

The chatter began across the internet this past weekend when CNN reported the DA’s office had copies of texts implicating Team Trump — by which I mean people working directly with Trump to overturn the 2020 election — in efforts to breach voting equipment in Coffee County, Georgia.

After Fulton County accidentally released what appeared to be a copy of the charges against Donald Trump early Monday afternoon, clamor ramped up even after the copy was yanked from publication.

At this moment — shortly after 11:00 p.m. ET — we are waiting for an announcement from Fulton County DA’s office as the grand jury handed over indictments around 9:00 p.m. ET this evening.

~ ~ ~

UPDATE-1 — 11:50 P.M. —

The charging document has been filed and published on line in the last 20 minutes.

Donald J. Trump has been charged with the following:

Description

OCGA Statute

Level

Date

1 (Violation Of The Georgia RICO (Racketeer Influenced And Corrupt Organizations) Act

16-14-4

Serious Felony

11/04/2020

5 Solicitation of Violation of Oath by Public Officer

16-4-7(b)

Felony

12/07/2020

9 Conspiracy To Commit Impersonating a Public Officer

16-4-8

Felony

12/06/2020

11 Conspiracy To Commit Forgery in the First Degree

16-4-8

Felony

12/06/2020

13 Conspiracy To Commit False Statements and Writings

16-4-8

Felony

12/06/2020

15 Conspiracy To Commit Filing False Documents

16-4-8

Felony

12/06/2020

17 Conspiracy To Commit Forgery in the First Degree

16-4-8

Felony

12/06/2020

19 Conspiracy To Commit False Statements and Writings

16-4-8

Felony

12/06/2020

27 Filing False Documents

16-10-20.1(b)

Felony

12/31/2020

28 Solicitation of Violation of Oath by Public Officer

16-4-7(b)

Felony

01/02/2021

29 False Statements and Writings

16-10-20

Felony

01/02/2021

38 Solicitation of Violation of Oath by Public Officer

16-4-7(b)

Felony

09/17/2021

39 False Statements and Writings

16-10-20

Felony

09/17/2021

D.A. Fani Willis is expected to make a public statement yet this evening.

~ ~ ~

UPDATE-2 — 12:20 a.m. 15-AUG-2023 —

D.A. Willis held a presser, see: https://youtu.be/eRDNfE5GOqE

Willis said indictees Trump and the other 18 racketeering defendants are to surrender by noon August 25.

Georgia criminal defense attorney Josh Schiffer appeared on Atlanta First News to explain the indictment — see https://youtu.be/223pKFi4BHE

~ ~ ~

This post may be updated as events unfold with any updates to appear at the bottom of this post.

Bring all discussion of the Fulton County investigation and indictments to this thread.

Alberto Gonzales Lectures Jack Goldsmith about Perception versus Reality in a Democracy

I never, never imagined I’d see the day when Alberto Gonzales would school Jack Goldsmith on how to defend democracy.

Once upon a time, remember, it fell to Goldsmith to school Gonzales that the President (or Vice President) could not simply unilaterally authorize torture and surveillance programs that violate the law by engaging in cynical word games.

But now, Goldsmith is the one befuddled by word games and Gonzales is the one reminding that rule of law must operate in the realm of truth, not propaganda.

In a widely circulated NYT op-ed last week, Goldmith warned that democracy may suffer from the January 6 indictment of Donald Trump because of the perceived unfairness (Goldsmith doesn’t say, perceived by whom) of the treatment of Trump.

This deeply unfortunate timing looks political and has potent political implications even if it is not driven by partisan motivations. And it is the Biden administration’s responsibility, as its Justice Department reportedly delayed the investigation of Mr. Trump for a year [1] and then rushed to indict him well into the G.O.P. primary season. The unseemliness of the prosecution will most likely grow if the Biden campaign or its proxies use it as a weapon against Mr. Trump if he is nominated.

This is all happening against the backdrop of perceived unfairness in the Justice Department’s earlier investigation, originating in the Obama administration, of Mr. Trump’s connections to Russia in the 2016 general election. Anti-Trump texts by the lead F.B.I. investigator [2], a former F.B.I. director who put Mr. Trump in a bad light through improper disclosure of F.B.I. documents and information [3], transgressions by F.B.I. and Justice Department officials in securing permission to surveil a Trump associate [4] and more were condemned by the Justice Department’s inspector general even as he found no direct evidence of political bias in the investigation. The discredited Steele dossier, which played a consequential role in the Russia investigation and especially its public narrative, grew out of opposition research by the Democratic National Committee and the Hillary Clinton campaign. [5]

And then there is the perceived unfairness in the department’s treatment of Mr. Biden’s son Hunter, in which the department has once again violated the cardinal principle of avoiding any appearance of untoward behavior in a politically sensitive investigation. Credible whistle-blowers have alleged wrongdoing and bias in the investigation [6], though the Trump-appointed prosecutor denies it. And the department’s plea arrangement with Hunter Biden came apart, in ways that fanned suspicions of a sweetheart deal, in response to a few simple questions by a federal judge [7]. [my emphasis; numbers added]

Rather than parroting perceptions, in his op-ed, Gonzales corrects a core misperception by pointing out a key difference between Hillary’s treatment and Trump’s: Hillary cooperated.

I recently heard from friends and former colleagues whom I trust and admire, people of common sense and strong values, who say that our justice system appears to be stacked against Trump and Republicans in general, that it favors liberals and Democrats, and that it serves the interests of the Democratic Party and not the Constitution. For example, they cite the department’s 2018 decision not to charge Hillary Clinton criminally for keeping classified documents on a private email server while she was secretary of state during the Obama administration.

I can understand the skepticism, but based on the known facts in each case, I do not share it.

[snip]

A prosecutor’s assessment of the evidence affects decisions on whether to charge on a set of known facts, and government officials under investigation, such as Clinton, often cooperate with prosecutors to address potential wrongdoing. By all accounts, Trump has refused to cooperate.

By contrast, Goldsmith simply ignores the backstory to virtually every single perceived claim in his op-ed.

  1. Aside from a slew of other problems with the linked Carol Leonnig article, her claims of delay in the investigation do not account for the overt investigative steps taken against three of Trump’s co-conspirators in 2021, and nine months of any delay came from Trump’s own frivolous Executive Privilege claims
  2. Trump’s Deputy Attorney General chose to release Peter Strzok’s texts (which criticized Hillary and Bernie Sanders, in addition to Trump), but not those of agents who wrote pro-Trump texts on their FBI devices; that decision is currently the subject of a Privacy Act lawsuit
  3. After Trump used Jim Comey’s gross mistreatment of Hillary in actions that was among the most decisive acts of the 2016 election as his excuse to fire Comey, DOJ IG investigated Comey for publicly revealing the real reason Trump fired him
  4. No Justice Department officials were faulted for the Carter Page errors, and subsequent reports from DOJ IG revealed that the number of Woods file errors against Page were actually fewer than in other applications; note, too, that Page was a former associate of Trump’s, not a current one
  5. Investigations against both Hillary (two separate ones predicated on Clinton Cash) and Trump were predicated using oppo research, but perceptions about the Steele dossier ended up being more central because in significant part through the way Oleg Deripaska played both sides
  6. One of the IRS agents Goldsmith treats as credible refused to turn over his emails for discovery for eight months when asked and the other revealed that he thought concerns about Sixth Amendment problems with the case were merely a sign of “liberal” bias; both have ties to Chuck Grassley and one revealed that ten months after obtaining a laptop that appears to have been the result of hacking, DOJ had still never forensically validated the contents of it
  7. In the wake of that organized campaign against Hunter Biden, a Trump appointed US Attorney limited the scope of the plea which led to a Trump appointed judge refusing to accept it

For each instance of perceived unfairness Goldsmith cites — again, without explaining who is doing the perceiving — there’s a backstory of how that perception was constructed.

Which is the more important insight Gonzales offers: That perceived unfairness Goldsmith merely parrots, unquestioned? Trump deliberately created it.

[A]s I watched a former president of the United States, for the first time in history, be arraigned in federal court for attempting to obstruct official proceedings and overturn the results of the 2020 presidential election, I found myself less troubled by the actions of former president Donald Trump than by the response of a significant swath of the American people to Trump’s deepening legal woes.

[snip]

While Trump has a right to defend himself, his language and actions since 2016 have fueled a growing sense among many Americans that our justice system is rigged and biased against him and his supporters.

Sadly, this has led on the right to a growing distrust of and rage against the Justice Department.

[snip]

We have a duty as Americans not to blindly trust our justice system, but we also shouldn’t blindly trust those who say it is unjust. Our government officials have a duty to act at all times with integrity, and when appropriate to inform and reassure the public that their decisions are consistent based on provable evidence and in accordance with the rule of law.

Defendants do not have the same duty. They can, and sometimes do, say almost anything to prove their innocence — no matter how damaging to our democracy and the rule of law. [my emphasis]

Trump’s false claims of grievance, his concerted, seven year effort to evade any accountability, are themselves the source of damage to democracy and rule of law, not the perception that arises from Trump’s propaganda.

Which beings me back to the question of who is perceiving this unfairness. By labeling these things “perceived” reality, Goldsmith abdicates any personal responsibility.

Goldsmith abdicates personal responsibility for debunking the more obvious false claims, such as that Hunter Biden, after five years of relentless attacks assisted by Bill Barr’s creation of a way to ingest known Russian disinformation about him without holding Rudy legally accountable for what he did to obtain it, after five years of dedicated investigation by an IRS group normally focused on far bigger graft, somehow got a sweetheart deal.

More troubling, from a law professor, Goldsmith abdicates personal responsibility for his own false claims about the legal novelty of the January 6 indictment against Trump.

The case involves novel applications of three criminal laws and raises tricky issues of Mr. Trump’s intent, his freedom of speech and the contours of presidential power.

One reason the investigation took so long — one likely reason why DOJ stopped well short of alleging Trump incited the violence on the Capitol and Mike Pence personally, in spite of all the evidence he did so deliberately and with malign intent — is to eliminate any First Amendment claim. One might repeat this claim if one had not read the indictment itself and instead simply repeated Trump’s lawyers claims or the reports of political journalists themselves parroting Trump’s claims, but not after a review of how the conspiracies are constructed.

As to the claim that all three statutes are novel applications? That’s an argument that says a conspiracy to submit documents to the federal government that were identified as illegal in advance is novel. Kenneth Chesbro wrote down in advance that the fake elector plot was legally suspect, then went ahead and implemented the plan anyway. John Eastman acknowledged repeatedly in advance that the requests they were making of Mike Pence were legally suspect, but then went ahead and told an armed, angry crowd otherwise.

The claim that all three charges are novel applications is especially obnoxious with regards to 18 USC 1512(c)(2) and (k), because the application has already been used more than 300 times (including with people who did not enter the Capitol). The DC Circuit has already approved the treatment of the vote certification as an official proceeding. And — as I personally told Goldsmith — whatever definition of “corruptly” the DC Circuit and SCOTUS will eventually adopt, it will apply more easily to Trump than to his 300 mobsters. And if SCOTUS were to overturn the application of obstruction to the vote certification — certainly within the realm of possibility from a court whose oldest member has a spouse who might similarly be charged — the response would already be baked in.

To argue that 300 of Trump’s supporters should be charged and he should not is simply obscene.

American democracy, American rule of law, is no doubt in great peril and the prosecutions of Donald Trump for the damage he did to both will further test them.

But those of us who want to preserve democracy and rule of law have an ethical obligation not just to parrot the manufactured grievances of the demagogue attempting to end it, absolving ourselves of any moral responsibility to sort through these claims, but instead to insist on truth as best as we can discern it.

Pardoned Felon Bernie Kerik’s Three Stories

Before I lay out the three different versions of Berie Kerik’s testimony with Jack Smith’s prosecutors last Monday, I want to make a separate observation. After turning a bunch of documents over to Jack Smith, Kerik’s stance regarding the privilege claims in the Ruby Freeman lawsuit changed.

Previously, he had said that the privilege was Trump’s and Trump had to decide.

But first on July 24 (three days after Kerik handed over documents to Jack Smith’s team) and then again in a status filing filed on Friday, August 4, he consented to let Beryl Howell review any that Freeman’s attorneys still contested, though Trump’s lawyers will get to challenge her decisions.

Following the Court’s order, on July, 23, Mr. Kerik produced a privilege log, (the “Revised Privilege Log”), see Exhibit 1, and 562 documents previously withheld as privileged (the “Previously Withheld Documents”) that were de-designated by the Trump Campaign. ECF. No. 83 at 2. On July 24, 2023, after meeting and conferring, Plaintiffs and Mr. Kerik filed the Joint Stipulation where the parties agreed that:

• should Plaintiff choose to challenge the privilege designation for any documents in the Revised Privilege Log, “Mr. Kerik takes no position and consents to their disclosure for in camera review by the Court;”

Freeman’s attorneys are asking Howell to review everything (unless Howell rules that Rudy has defaulted on the whole suit).

Plaintiffs have now reviewed the 562 Previously Withheld Documents and the Revised Privilege Log. It is Plaintiffs view, having completed this review and consistent with Plaintiffs’ predictions, that the vast majority (if not all) of the Previously Withheld Documents were not properly withheld as privileged. Apparently at the instruction of third parties, Mr. Kerik continues to withhold 318 documents based on both attorney-client and work product privilege. Plaintiffs have identified 97 documents that, on the face of the privilege log, appear not to be privileged, and also appear to be related to Plaintiffs’ claims. (See Ex. 2.) At minimum, Plaintiffs request that the Court should review these 97 documents in camera. However, because Plaintiffs’ assessment of what warrants further review is based on the descriptions in the Revised Privilege Log, and because Mr. Kerik previously logged documents which we not privileged, Plaintiffs respectfully submit that the more prudent course of action may be an in camera review of the full set of 318 documents. Mr. Kerik has previously stated that he has no opposition to this relief. See ECF No. 83 at 3.

It matters that Howell, who until March presided over the grand jury investigating Trump, would preside over that review.

Among the documents that Kerik is still withholding — at least from Freeman — is a document forwarding something from (!!!) 4Chan to both Kerik and Phil Waldron, alleging a Ukrainian role in Dominion Voting Systems.

Minutes after the 4Chan tip, Waldron and Kerik were also exchange claims that seem centrally pertinent to Freeman’s lawsuit.

Keep that in mind as you read the various stories that pardoned felon Bernie Kerik told the press about his testimony to Smith’s prosecutors.

The first version, from CNN, posted shortly after Kerik left the interview. Kerik’s lawyer, Tim Parlatore, claims that Kerik (who was receiving pitches from 4Chan) operated in good faith.

Kerik’s attorney Timothy Parlatore told CNN on Monday that Kerik told investigators about what Giuliani was doing in late 2020 to hunt down potential evidence of fraud that would show that Trump actually won a second term.

Kerik discussed “what the Giuliani team was doing” and “all the efforts they took at the time to take all the complaints of fraud, to see what they could do to chase them down,” Parlatore said. “Really kind of establishing that at that time, when they weren’t really able to necessarily establish proof, they had probable cause and they were pursuing investigation in good faith.”

Investigators also asked about the seven states that were the focus of Giuliani’s efforts, doing a deep dive on each state to understand the basis for making election fraud claims. Investigators went state by state, asking about each claim of fraud and what it was based on and who they talked to.

Monday marked first meeting with the special counsel team. Smith was not in the room during the closed-door interview, Parlatore said. The interview was conducted by three special counsel prosecutors and two FBI agents.

Parlatore scoffed at the idea Rudy would be charged, basing that claim on whether Rudy — who is trying to avoid further discovery in the Freeman suit by stipulating that the claims he made about Freeman tampering with the vote — knowingly lied about voter fraud, not if Rudy knowingly plotted with Ken Chesebro to set up fake electors.

Asked if he thinks Giuliani will be charged by the special counsel, Parlatore told CNN, “No, not a chance.”

“The idea that Rudy Giuliani was intentionally pushing claims he knew were false is not something supported by the evidence,” Paraltore said. In the 45-page Trump indictment, prosecutors say the co-conspirator that CNN has identified as Giuliani “was willing to spread knowingly false claims.”

CNN may have been the only outlet to note — in the very last paragraph — that Kerik was convicted of fraud and then pardoned by Trump.

Years before Trump became president, Kerik was federally indicted and pleaded guilty to tax fraud and related financial crimes. He served three years in prison, was released in 2013, and received a full pardon from Trump in 2020.

Contrast CNN’s acknowledgment that Kerik was convicted for fraud with NYT’s focus, instead, on his background as a cop.

The word “fraud” shows up seven times in the NYT story, because of its centrality to the charges against Trump. Never once does it mention Kerik’s past fraud.

Instead, NYT describes that if Save America PAC had paid Rudy’s team, their claims of fraud might actually have been vetted better. (Politico’s story also focuses on the financial aspect.)

Among the questions prosecutors asked Mr. Kerik were several related to Mr. Trump’s main postelection fund-raising entity, Save America PAC. The special counsel’s office has been drilling down for months into whether the political action committee raised millions of dollars on claims that there was widespread fraud in the election, but ultimately earmarked the money for things other than investigating those claims.

Mr. Kerik told prosecutors that the team Mr. Giuliani had assembled to look into the allegations of fraud received no money from Save America PAC, even though it was one of the chief groups assigned the task of hunting down evidence that the election had been marred by cheating, Mr. Kerik’s lawyer, Timothy Parlatore, said on Tuesday.

Mr. Kerik also told prosecutors that if Save America had provided money to Mr. Giuliani’s team, it might have more accurately vetted the claims of fraud, Mr. Parlatore said.

Remember: this was the topic of a subpoena sent to Rudy last year, how he got paid.

Friday, Rolling Stone put Kerik’s testimony at the center of a third story: how Trump’s associates are trying to make Sidney Powell the fall-gal for everything.

On Monday, Bernie Kerik — a longtime Rudy Giuliani associate and a Trump ally who worked on the Giuliani-led legal team challenging Trump’s 2020 defeat — sat with special counsel investigators for a roughly four-and-a-half-hour interview, according to his lawyer Tim Parlatore. (Parlatore previously served as a top attorney to Trump, advising the ex-president on Special Counsel Smith’s probes.)

“Based on the contents of their questions, and my understanding of criminal law, the main individual who was discussed who Mr. Kerik gave any information that could be incriminating would be Sidney,” Parlatore tells Rolling Stone on Thursday. Parlatore added that what Kerik told investigators included: “That there was no back-up for anything she said, that when she was asked to provide proof she didn’t produce anything, and when she was cut loose [from the official Trump legal team], how she kept trying to push her way in.”

[snip]

Kerik, a former New York police commissioner, is one of the individuals who recently described to federal investigators — among other topics — details regarding Powell’s private behavior as she aided Trump’s attempts to subvert the 2020 election outcome. According to Parlatore, the ex-commissioner did not mince words: “During Bernie Kerik’s interview with the special counsel’s office, the issue of a possible mental health break and change in her demeanor and personality was discussed,” the attorney says.

Parlatore adds that during the investigators’ multi-hour interview with his client, the word “lunatic” was indeed used to describe Powell.

[snip]

However, the intense nature of the recent line of federal questioning has led various witnesses, lawyers, and others intimately familiar with the situation to the conclusion that Powell likely has a heavy amount of legal exposure in the current stage of Smith’s probe.

Or, as one source who’s been in the room recently with federal investigators succinctly puts it: “Sidney’s fucked.”

Asked to comment on the source’s two-word characterization, Parlatore simply replied with his own two-word statement: “I agree.”

The focus seems to misunderstand how Sidney Powell functions in the indictment. The more Trump advisors say she was a lunatic, the more Trump’s reliance on her makes his conduct problematic.

NYT hit on this part of the story too. In its version, it said prosecutors had specifically asked about Waldron.

Prosecutors asked Mr. Kerik on what factual basis he believed Ms. Powell had filed her suits and he responded that he was unaware of one.

Prosecutors also asked Mr. Kerik about Phil Waldron, a former Army colonel from Texas who served as a kind of liaison between Ms. Powell and members of Mr. Giuliani’s team. Mr. Smith’s investigators wanted to know how seriously Mr. Kerik and others on the team had vetted Mr. Waldron’s claims that there were mathematical irregularities in the vote results in some key swing states that indicated fraud, Mr. Parlatore said.

These stories are not necessarily inconsistent. Over a four hour interview, prosecutors may well have hit on all these topics.

But I’m not sure they fit together the way that Kerik or Parlatore think.

Update: This story from CNN, tying Rudy and Kerik to the Coffee County voting software breach in GA, may explain why everyone is trying to pin all this on Sidney Powell, and may likewise explain the curious status of Powell in Trump’s own indictment.

Shortly after Election Day, Hampton – still serving as the top election official for Coffee County – warned during a state election board meeting that Dominion voting machines could “very easily” be manipulated to flip votes from one candidate to another. It’s a claim that has been repeatedly debunked.

But the Trump campaign officials took notice and reached out to Hampton that same day. “I would like to obtain as much information as possible,” a Trump campaign staffer emailed Hampton at the time, according to documents released as part of a public records request and first reported by the Washington Post.

In early December, Hampton then delayed certification of Joe Biden’s win in Georgia by refusing to validate the recount results by a key deadline. Coffee County was the only county in Georgia that failed to certify its election results due to issues raised by Hampton at the time.

Hampton also posted a video online claiming to expose problems with the county’s Dominion voting system. That video was used by Trump’s lawyers, including Giuliani, as part of their push to convince legislators from multiple states that there was evidence the 2020 election results were tainted by voting system issues.

Text messages and other documents obtained by CNN show Trump allies were seeking access to Coffee County’s voting system by mid-December amid increasing demands for proof of widespread election fraud.

Coffee County was specifically cited in draft executive orders for seizing voting machines that were presented to Trump on December 18, 2020, during a chaotic Oval Office meeting, CNN has reported. During that same meeting, Giuliani alluded to a plan to gain “voluntary access” to machines in Georgia, according to testimony from him and others before the House January 6 committee.

The only overt act of Powell in the indictment is including Dominion in lawsuits after Trump asked — and after Rudy distanced her from his team and after Trump pardoned Mike Flynn.

But Dominion plays a key role, because it — including this Coffee County allegation — served as the basis for Trump’s demands of Brad Raffensperger to find more votes.

The Effort by Accused Mobsters to End Run the DC Circuit on “Corruptly”

Now that Trump has been charged with it, legal commentators have finally discovered that DOJ has been applying obstruction — 18 USC 1512(c)(2) — to January 6.

For example, in a post yesterday, Jay Kuo noted that over the two and a half years that DOJ has been charging January 6 defendants with obstruction, its application to January 6 as an official proceeding has been affirmed and the meaning of “corruptly” is getting closer to definition.

Seen from a broad perspective, the over 1,000 January 6 cases filed by the Justice Department against the rioters, insurrectionists and seditious conspirators have now yielded important precedents that can be applied to the charges and the case against Donald J. Trump. Without this important groundwork, there would be considerably more legal risks in the application of two of the primary counts in the indictment: obstruction or attempted obstruction of an official proceeding, and conspiracy to obstruct an official proceeding.

Those legal risks would have certainly been targeted and appealed by Trump’s attorneys, putting a very big question mark over the finality of any conviction. As things stand, there remains some legal uncertainty—such as which jury instruction for “corruptly” to apply here—but they likely will be resolved, perhaps even by the Supreme Court, long before the jury meets to deliberate Trump’s guilt.

And for all that legwork by Garland and his Department of Justice, forging a clear legal path to prosecute Trump under the obstruction statute, I am both grateful and impressed.

Kuo correctly notes that the most likely place we’ll get such a definition is in Thomas Robertson’s appeal, which was heard on May 11. Given the hearing, it seems likely that the DC Circuit will adopt a standard on “corruptly” that would include, at least, either the “otherwise illegal” standard that Dabney Friedrich has adopted or the corrupt benefit that Justin Walker addressed in Fischer. Under either standard, obstruction should apply to Trump more neatly than it does many of the other January 6 defendants who’ve been charged under the statute.

But as Roger Parloff has noted, there is one other possibility.

Shortly after the other DC Circuit decision — captioned after Joseph Fischer, but including appeals from Jake Lang and Garret Miller, all of whom had had their obstruction charge rejected by Carl Nichols — Norm Pattis (who also represents Joe Biggs and Owen Shroyer and, if he ever gets charged, Alex Jones) and Steven Metcalf (who also represents Dominic Pezzola) filed an appeal for Lang. That appeal was not closely focused or in my NAL opinion, all that well crafted. It did not focus on the definition of “corruptly.”

Then, on August 1 — hours before Trump was charged with obstruction — Nick Smith (who largely crafted these challenges to 1512 and also represents Ethan Nordean) filed a cert petition for Miller.

Even though “corruptly” wasn’t the central holding in the Fischer decision, Smith included it as one of the questions presented here.

Whether § 1512(c)’s “corruptly” element requires proof that the defendant acted with the intent to obtain an unlawful benefit, or whether it merely requires proof that the defendant acted with an improper or wrongful purpose or through unlawful means.

And he cited NYT’s coverage of the use of obstruction as part of his explanation for the import of this appeal.

Elevating the national political salience of the issues raised here, it appears that the former president of the United States, and candidate in the 2024 presidential election, will be charged under the same Section 1512(c) (2) theory of liability that the government has filed against Petitioner and hundreds of others. Obstruction Law Cited by Prosecutors in Trump Case Has Drawn Challenges, N.Y.Times, July 20, 2023, available at: https:// www.nytimes.com/2023/07/20/us/politics/trump-jan-6- obstruction-charge.html.

He made no mention of the pending Robertson decision.

His justification for why Miller’s appeal provides little reason to consider the definition of “corruptly” when it is not ripe below — to say nothing of why a third defendant before Carl Nichols also accused of assault makes a sound vehicle for testing a statute that is more troubling with defendants who did not engage in violence on the day of the attack. Instead, Smith suggests that Miller’s guilty plea on the assault charges brackets that issue.

Miller’s case presents a clean vehicle to address the questions presented. Miller’s case is usefully contrasted with that of Petitioner Edward Lang (No. 23-32).

The government alleges that Lang entered the Capitol’s Lower West Terrace tunnel where, according to the government, “some of the most violent attacks on police officers occurred.” Dkt. 1958170 at 24. The government further alleges: “Until approximately 5 p.m., Lang pushed, kicked, and punched officers, at times using a bar or a stolen riot shield.” Id. In an interview on January 7, 2021, Lang described how he “had a gas mask on for the first two, three hours” as he was “fighting them face to face” as part of “a mission to have the Capitol building” and “stop this presidential election from being stolen.” Id. According to Lang: “It was war. This was no protest.” Id.

While Miller’s conduct in entering the Capitol and pushing on police lines was wrong, he has accepted responsibility for his actions by pleading guilty to every valid offense with which he was charged—except the charge under Section 1512(c)(2). The charges to which Milled pled guilty already perfectly encompass all his misconduct that day. Thus, Miller’s case captures the essential point that the novel obstruction charge does not penalize any unique criminal conduct or intent.

Ultimately, both these appeals are misleading, because they suggest these appeals are about protesting. None of the three can claim to be only protesting; all three are charged with — and Miller pled guilty to — assault (though Lang, who has not yet been found guilty, claims he was engaged in self defense).

But that doesn’t rule out that a SCOTUS dominated by right wingers like Clarence Thomas, for whom Nichols, the lone DC District holdout on this application of obstruction, once clerked, may choose to weigh in now rather than waiting for the DC Circuit’s decision to ripen the issue.

This is the kind of thing that legal commentators could be productively focused on, because it is designed to affect the case against Trump.

Update: Mistakenly referred to Lang as Alam.

“Like fatter Tony Soprano” Attending the Arraignment and “Effect[ing]” Liz Harrington’s Pregnancy

Two amusing phrases from yesterday’s news provide a wonderful opportunity to talk about how Trump will continue to manipulate his prosecution.

First, Peter Navarro continues to seek ways to stall his long-delayed trial on contempt charges, which is scheduled to start next month. In advance of his trial, Judge Amit Mehta has granted him an evidentiary hearing so Navarro can attempt to prove that the former President told him to invoke both testimonial immunity and executive privilege, as Trump did with Mark Meadows and Dan Scavino (which is almost certainly a big part of why they weren’t charged with contempt).

When granting Navarro the hearing, though, Mehta noted that Navarro has thus far not presented any evidence that Trump told him not to testify, and he’ll need to find “formal” evidence.

[T]he court does not at this time prejudge what type or manner of instruction from President Trump might suffice to constitute a “formal” assertion of privilege or immunity. See United States v. Navarro, No. 22-cr-200 (APM), 2023 WL 371968, at *2–3 (D.D.C. Jan. 19, 2023). The court previously left that question unanswered because Defendant had not come forward with any evidence of a presidential invocation. Id.; Jan. Hr’g Tr. at 12. Defendant’s burden will include showing that the claimed instruction to invoke was a “formal” one.

Now, Navarro is attempting to delay both hearings because Liz Harrington, Trump’s spox, is due to give birth.

The first two filings in this dispute (Navarro, DOJ) included redacted bits and exhibits explaining how Trump’s spokesperson could prove that Trump invoked testimonial immunity and executive privilege, though DOJ did make clear that they believe Harrington’s testimony is inadmissible. Navarro’s response provides more detail: He wants Harrington to describe how he wrote a press statement she could release claiming Trump had invoked executive privilege (but not testimonial immunity).

Along the way, he reveals that Harrington testified to the grand jury and DOJ believes his proffer of her testimony materially conflicts with what DOJ locked her into saying.

It’s clear from the Government’s Opposition that it would prefer that Ms. Harrington not testify at the evidentiary hearing.1 Although it claims that her testimony is “generally speaking not in dispute”, it challenges its relevance of the calls she had with Dr. Navarro and the email she received from him on February 9, 2022, the day the J6 Committee served its subpoena. Opp. n.1. Standing alone, Ms. Harrington’s testimony does not prove that former President Trump instructed Dr. Navarro to assert executive privilege in response to the Committee’s subpoena. But the testimony is corroborative of other evidence – including Dr. Navarro’s anticipated testimony – that he was following President Trump’s instructions when he notified the Committee that it should negotiate the privilege issue with its holder.2

Ms. Harrington will explain that after being served with the subpoena, Dr. Navarro called her and then followed up by sending the media statement he planned to publicly issue that day. The statement explained that President Trump had asserted executive privilege and noted that the J6 Committee should negotiate any waiver of the privilege with his attorneys and him. Ms. Harrington conveyed the statement to two of President Trump’s administrative assistants and, later that day, Dr. Navarro publicly released the statement. See Defense Exhibit 7

1 In its zeal to prosecute Dr. Navarro and keep Ms. Harrington from testifying, the Government has implicitly threatened her with perjury “if she intends to testify inconsistent with her grand jury testimony” and that she “must first waive her Fifth Amendment right not to incriminate herself.” Opp. at 3. This assertion is at odds with long-standing precedent that: “Our legal system provides methods for challenging the Government’s right to ask questions – lying is not one of them,” United States v. Wong, 431 U.S. 174, 178 (1977), and so, “[e]ven constitutionally explicit Fifth Amendment privileges do not exonerate affirmative false statements.” United States v. North, 708 F. Supp. 380, 383 (D.D.C. 1988) (citing Wong, 431 U.S. at 178). Regardless of whether Ms. Harrington could assert the Fifth Amendment to avoid what the government submits would be perjured testimony, the reality is that Mr. Harrington’s anticipated testimony is wholly consistent with her grand jury testimony – the government just failed to ask probative follow up questions of her at the time.

Then, Navarro’s lawyers — the lawyer he shares with Kash Patel and Walt Nauta, Stan Woodward, the lawyer he shares with Carlos De Oliveira, John Irving, and the lawyer he used to share with Trump himself, John Rowley — attempt to disclaim simply using Harrington’s pregnancy as an excuse for delay.

The Government alleges without any basis that Dr. Navarro’s request for continuance of the hearing is “strategic” and done for improper reasons. Opp. at 1-2. Leaving aside the personal attack on defense counsel, there is no plausible strategic reason for the request and the Government provides none – Ms. Harrington’s pregnancy is not effected by the timing of the filing of Dr. Navarro’s motion. No prejudice to the Government would result from a short continuance and it would be fundamentally unfair to Dr. Navarro to deny calling Ms. Harrington as a witness on his behalf. [my emphasis]

But along the way, because they used “effected” instead of “affected,” they literally deny that the act of filing Navarro’s motion did not cause Harrington’s pregnancy.

I’m sure it didn’t.

But it also appears to be the case that DOJ locked Harrington — who may be the only one in Trump’s camp that Navarro spoke to during the period when he was subpoenaed — into testimony about the substance of their communication. And now Navarro is trying to admit his own hearsay to prove that Trump, absent any written filing, told Navarro to invoke both testimonial immunity (of which there’s no known evidence) and to raise executive privilege in the same informal way he did with Steve Bannon, which did not work for Bannon at trial but which is the substance of his appeal.

Mehta has called a pre-hearing hearing late this afternoon to sort all this out.

That phrase — “Ms. Harrington’s pregnancy is not effected by the timing of the filing of Dr. Navarro’s motion” would have been my favorite Trump-related phrase yesterday, if not for the description of Boris Epshteyn in this story of how he allegedly molested two women after getting drunk and belligerent at a bar in Scottsdale in 2021.

“We have a high tolerance of people like being weird, but that went above and beyond,” she said, adding that the man grabbed the women about 10 times. “I was like, stop touching my sister. Stop touching me. Stop touching my friends.”

Police asked the older sister to describe Epshteyn.

“Fat, ugly, like drooping face. White Ralph Lauren Polo,” she said. “Like fatter Tony Soprano.”

An officer asked: “Would you be willing to press charges?”

She responded: “Yes. (Expletive) that guy.”

The NYT — including Maggie Haberman — had reported directly from the arrest report in a beat sweetener burying this and even more damning criminal exposure earlier this year, but had left out the fat part.

I’m using the phrase “Like fatter Tony Soprano” as my excuse to pick up an observation that William Ockham made yesterday about DOJ’s proposed schedule for a Trump trial on the January 6 charges.

Furthermore, the defendant and his counsel have long been aware of details of the Government’s investigation leading to his indictment, having had first contact with Government counsel in June 2022. Indeed, at his initial appearance, the defendant was accompanied by an attorney familiar with certain relevant pre-indictment information. In sum, the defendant has a greater and more detailed understanding of the evidence supporting the charges against him at the outset of this criminal case than most defendants, and is ably advised by multiple attorneys, including some who have represented him in this matter for the last year.

In addition to noting that Trump’s attorneys have been aware of the course of this investigation because of repeated contacts with prosecutors going back to June 2022 — including Executive Privilege challenges to the testimony of Marc Short, Greg Jacob, Pat Cipollone, Pat Philbin, Mark Meadows, John Ratcliffe, Robert O’Brien, Ken Cuccinelli, and Mike Pence — it also noted that “an attorney familiar with certain relevant pre-indictment information” accompanied him to his arraignment.

I agree with Ockham’s supposition that that’s a reference to Boris “like fatter Tony Soprano” Epshteyn. Boris attended the arraignment — as he has some or all of Trump’s — but was not an attorney of record.

Back in April, before Rudy or Mike Roman or Bernie Kerik did so, Boris spent two days in interviews with Jack Smith and his prosecutors in what the press got told was a “proffer.”

The interview was largely focused on the efforts by former President Donald Trump and his allies to overturn Trump’s 2020 election loss. The second day of questioning was planned in advance, the sources said.

Epshteyn did not immediately respond to a request for comment from ABC News.

Prosecutors’ questions focused around Epshteyn’s interactions with former Trump attorneys Rudy Giuliani, Kenneth Chesebro and John Eastman, in addition to Trump himself, according to sources.

If the allusion in the proposed schedule is a reference to Epshteyn’s interviews, it confirms my general suspicion that Smith is using proffers as a way to get key subjects of the investigation on the record, rather than necessarily flipping them. It suggests that Smith is willing to show a few of the cards he has — at least on the prosecution focused largely on facts that were already public last year — in order to lock key subjects in on their testimony, just as DOJ would have been doing with Liz Harrington’s grand jury appearance.

But because Todd Blanche is an attorney of record for both Trump and Boris, this proffer would have been an especially obvious way for Trump to obtain information about the prosecution against him. In both the January 6 case and the stolen documents one, Boris is playing both a suspected co-conspirator and advisor on how to blow up the prosecution for political gain.

And that is why, I suspect, DOJ is being so particular about whether “volunteer attorneys” might include co-conspirators who also happen to be lawyers.

Without a clearly defined relationship of employment or privilege, this language is boundless. For example, several co-conspirators are identified as attorneys, whom the defense might interpret as “other attorneys assisting counsel of record.” The Court should not accept the edit.

The method to both of these defense ploys is the same. It rests on an inter-locking and wildly conflicted set of attorney relationships to create — in first instance — an omertà leading many key witnesses to give partial testimony which, as both cases, plus Navarro’s, move toward trial, will evolve into an effort to rework existing sworn testimony to create some flimsy story for Trump or Navarro to use to attempt to stay out of prison. This is what DOJ has spent much of the last 14 months preparing for: Trump’s attempt to move the goalposts once he discovered how much of the truth prosecutors had uncovered.

It’s not, just, that DOJ has to try the former President in at least two venues, an already unprecedented task. It’s that the entire criminal gang is gambling that if they just get beyond the election, any and all lies can be excused in a wave of pardons like Trump used to escape his Russian exposure.

Update: CNN’s Katelyn Polantz suggested that the reference to lawyer accompanying Trump may be Evan Corcoran. Corcoran was a part of all the sealed proceedings going back 9 months.

Citing Trump’s Executive Privilege Stalling, DOJ Asks for January Trial

DOJ has proposed that Trump’s January 6 trial should start on January 2, 2024.

In addition to citing repeatedly from the things John Lauro has said on the Sunday shows, it cites Trump’s Executive Privilege claims at least two — and almost certainly three — times.

First, it cited the DC Circuit upholding Judge Chutkan’s own decision that the Archives could hand over Trump’s materials to the January 6 Committee.

The D.C. Circuit has determined that “[t]here is direct linkage between [the defendant] and the events of [January 6, 2021],” which it described as “the single most deadly attack on the Capitol by domestic forces in the history of the United States.” Trump v. Thompson, 20 F.4th 10, 35-36 (D.C. Cir. 2021), cert. denied, 142 S. Ct. 1350, 212 L. Ed. 2d 55 (2022)

Then, it cited Trump’s initial Executive Privilege challenge to J6C’s request.

The defendant has been aware of— and has responded forcefully in opposition to—certain relevant information made public through hearings and the report written by the House Select Committee to Investigate the January 6th Attack on the United States Capitol. See, e.g., Letter from Donald J. Trump to Hon. Bennie G. Thompson, Chairman, House Select Committee to Investigate the January 6th Attack on the U.S. Capitol (Oct. 13, 2022).

Finally, it cites first contact with prosecutors in the case in June 2022, which probably was the initial challenge to the testimony of Greg Jacob and Marc Short.

Furthermore, the defendant and his counsel have long been aware of details of the Government’s investigation leading to his indictment, having had first contact with Government counsel in June 2022.

Trump says he can’t go on trial before the election because under the Speedy Trial Act, he’ll need more time. DOJ notes that STA also protects the interest of the public.

And then it notes that Trump has been delaying this investigation in various ways since October 2022.

Update: Technically, I may be wrong about the letter to Bennie Thompson. It is not cited in Trump’s lawsuit against Thompson at all, even though it was sent on the same day as Thompson moved to obtain Trump’s records.

How 9 Months of Camera Footage became 8 Years

Even while Trump’s attorneys argued that he should be permitted to discuss classified information on private property that was already targeted by foreign spies before it became clear he was hoarding boxes of classified records there and may not have turned everything back, they argued that to investigate what happened with the stolen classified documents while in Trump’s custody, the FBI had to get 8 years worth of camera footage.

Actually, more than that. Trump’s response claimed that three-quarters of the total surveillance video turned over to date makes up 8 years, meaning the total would amount to around 128 months of surveillance footage.

To be sure, this is part of competing efforts to inflate (Trump) or understate (DOJ) the amount of discovery in this case.

I’m tracking those competing claims about what has been turned over in this table.

The latest claims — that would suggest that DOJ had turned over around 128 months worth of surveillance footage — reflect an evolving methodology on Trump’s part. On July 10, Trump’s lawyers described the initial batch of surveillance footage to be “approximately nine months of CCTV footage.”

The initial production also included some 57 terabytes of compressed raw CCTV footage (so far there is approximately nine months of CCTV footage, but the final number is not yet certain).

On July 18, Todd Blanche described that the footage Trump’s discovery vendor had uploaded as of that morning amounted to 1,186 days — or “over three years” worth of video.

Your Honor, just starting with a question you asked Mr. Bratt a while ago about just one part of the discovery, which is the CCTV footage, which is extraordinarily significant to this case, not only as what’s obvious from the indictment, but it also in part gave rise to the search warrant, the affidavit, and the probable cause to search Mar-a-Lago. As of this morning, there’s 1,186 days of footage that we have uploaded so far, and our vendor is not finished uploading it. And again, I’m not questioning Mr. Bratt’s position about the time period, but there’s multiple cameras that were subpoenaed and that have been produced to us as Rule 16 discovery; and as of today, it’s over three years’ worth of video.

Now, I’m not suggesting to the Court that we’re going to sit for three years and watch three years’ worth of video, but it’s a tremendous amount of data and information, and we’re just — I’m just talking right now about the CCTV footage. While the Government is correct that they have pointed us to the few days that they believe are the most significant to them as it relates to the charges in the indictment and presumably the search warrant, they’re not the most significant to us. I mean, the movement of boxes and where boxes were on given days is extraordinarily significant not only to the justification for the search warrant of the President’s residence but also to the defense of the case. And so the CCTV footage alone, over 1,186 days, makes the schedule the Government proposed pretty disingenuous, Your Honor.

Yesterday’s filing describes that when Trump’s vendor finished uploading that first batch of surveillance footage — which was 57 terabytes out of 76 total — it amounted to 8 years of footage.

Furthermore, the government has produced approximately 76 terabytes of compressed raw CCTV footage, which is itself an incredible volume of material. Last week defense counsel finally finished processing the intake of CCTV footage that the government produced on June 21—the 57 terabytes of CCTV footage produced on June 21 totals nearly eight years of video. On July 31, the government produced an additional 19 terabytes of CCTV footage, including, according to the government’s production letter, “footage that was produced to the government in May that was not included in the government’s first discovery production.” Counsel recently received a hard drive with CCTV footage referenced in the government’s July 31 letter, and we are still processing that discovery to assess the total length of additional video the government produced.

That’s where my 128 months estimate comes from: if 57 terabytes amounted to eight years, then 76 might amount to 10.66.

To be sure, this effort to maximize the scope of the surveillance footage is just meant to impress Judge Cannon and it might well work.

But it also provides some way to reverse engineer what the scope of the surveillance footage really is.

For example, if the scope of this includes footage spanning 9 months of time, as Trump originally claimed, then 10.66 years of footage might suggest 10 cameras were ultimately obtained; according to the search affidavit, there were 4 cameras — from the hallway outside the storage room — covered by the initial production, and by counting using Trump’s new method, 2 months of footage from four cameras would amount to eight months of surveillance footage.

It’s funny math, but now there’s more than 16 times that.

Note that in July, Bratt confirmed the unsurprising detail that some of the footage is from Bedminster (which is probably why DOJ hasn’t done a search on Bedminster — because they could validate the thoroughness of the search done in November or December).

MR. BRATT: So it covers a nine-month period, but not all the cameras were — but it is not all the cameras at Mar-a-Lago or Bedminster; not all the cameras were always running. And the retention period that the Trump organization had varied from camera to camera, so it is not a solid nine months of video footage.

Now, I’m interested in the scale of the footage for several reasons. Yesterday’s motion pointed to the 8 years of footage as proof that nothing ever got deleted.

As relevant here, the charges allege various obstruction-related conduct arising out of false claims of efforts to destroy certain video tapes. No videotapes were deleted or destroyed and the government does not so allege; indeed, President Trump has produced to the Special Counsel’s Office what amounts to more than eight years of CCTV footage.

It’s certainly possible that when DOJ started the investigation that led to multiple obstruction charges, they were just trying to figure out why Trump totally blew off the part of the initial subpoena that asked for locations in addition to the hallway outside the storage room (which I laid out here).

Particularly given that the claim accompanied the suggestion that the alleged attempt to delete footage in June 2022 was “false,” I certainly wouldn’t credit the amount of footage eventually obtained by the government as proof that nothing was deleted. It’s not even clear that all the footage comes from Trump Organization, much less the guy who used to be President.

But the other reason I remain obsessed about the amount and types of surveillance footage here (besides, perhaps, my PhD in literature), has to do with the types of questions investigators may have been trying to answer.

Take, for example, the claim by Bratt on July 18 that the movement of boxes key to the initial obstruction conspiracy happened on May 24 through June 2.

With respect to the closed circuit television and the movement of boxes, I would just note that the movement of boxes occurred between May 24th and June 2nd. So it’s not years’ worth of video with respect to the movement of boxes.

If so, that would suggest Nauta’s movement of a single box on May 22 was something besides an attempt to obstruct the subpoena response.

Or consider the way Trump’s lawyers boast about what an unusual place Mar-a-Lago is.

We similarly reminded the government of the uniqueness of President Trump’s residence, including that it is in a highly protected location guarded by federal agents that previously housed a secure facility approved for not only the discussion, but also the retention, of classified information. The government’s Motion suggesting we anticipated discussing classified information in an unsecure area is wrong, and they are fully cognizant of that fact. Similarly, the government’s statement to the court in its Motion that President Trump’s personal residence should be compared to the residence of “any private citizen” is misleading. This is especially true given the necessary protections afforded to our nation’s leaders after they leave office and the uniqueness of the location of President Trump’s residence, coupled with the fact that a secure location already existed for the relief sought herein and can be re-established with appropriate safeguards.6

6The statement comparing President Trump’s personal residence at Mar-a-Lago to that of “any private citizen” is all the more disingenuous considering a member of the prosecution’s trial team has visited the Mar-a-Lago property during the course of the investigation and is therefore personally aware of the differences between President Trump’s residence and that of “any private citizen.”

This neglects to explain why no sane person would want to restore a SCIF at Mar-a-Lago as explained very easily in the indictment.

The Mar-a-Lago Club was located on South Ocean Boulevard in Palm Beach, Florida, and included TRUMP’s residence, more than 25 guest rooms, two ballrooms, a spa, a gift store, exercise facilities, office space, and an outdoor pool and patio. As of January 2021, The Mar-a-Lago Club had hundreds of members and was staffed by more than 150 full-time, part-time, and temporary employees.

Between January 2021 and August 2022, The Mar-a-Lago Club hosted more than 150 social events, including weddings, movie premieres, and fundraisers that together drew tens of thousands of guests.

Mar-a-Lago shouldn’t be compared to the residence of “any private citizen,” sure, but for entirely different reasons than Trump’s lawyers want to admit: it’s a counterintelligence nightmare, and was long before Trump started hoarding classified documents in the gaudy shower, and was even ignoring the known targeting of the compound by foreign spy services.

One thing those surveillance videos are going to show is people besides Walt Nauta who got into the storage closet, perhaps to stash their guitar there, and in the process knocking over and discovering classified records that as a result have to be burned.

If there really is over 10 years worth of video surveillance, spread across a bunch of cameras and two properties, it’s likely some of the surveillance will show stuff Trump didn’t control, but stuff for which he should be held accountable.

Update: Added the quote about Bedminster bc as coalesced notes, Bratt’s comment about retention period is also worth noting.

Shorter DJT: Mexico Will Pay for My New SCIF

In Trump’s response to DOJ’s motion for a classified protective order in the stolen documents case, his lawyers clarified that they didn’t so much want to discuss classified documents with Trump while sitting in his offices, which is how the government represented their request, but instead wanted to restore the SCIF at one or another of his resorts.

Even there, the response itself says that Trump wants to review classified materials in a restored SCIF, while a footnote disavows that, then says he wants the space where he used to review such material, with another footnote disavowing a plan to transport classified documents there now.

President Trump opposes any portion of the Proposed CIPA Protective Order that prohibits counsel from simply discussing the relevant purportedly classified material with President Trump inside an approved secure location other than the designated SCIFs in the Southern District of Florida where the classified discovery will be housed. President Trump respectfully requests that the Proposed CIPA Protective Order be modified to approve re-establishment of a secure facility in which President Trump was permitted previously to discuss (and review2 ) classified information during his term as President of the United States.3

2 To be clear, President Trump is not asking for the proposed CIPA Protective Order to be modified to permit any classified materials to be transported to or reviewed or stored in, this location.

3 Counsel can provide additional information about President Trump’s proposed secure location but respectfully request that such information be provided in camera because of security concerns.

[snip]

So that President Trump and his legal team may discuss classified information in a substantive manner as regularly as necessary to prepare an adequate defense, we respectfully request that the Court approve re-establishment of a secure facility in which President Trump previously discussed (and reviewed5 ) classified information during his term as President of the United States.

5 Again, President Trump is not requesting that any classified materials be transported to or reviewed or stored in this location. [my emphasis]

Throughout this filing, Trump refers to purportedly classified material in the body of his argument, then disavows wanting to transport classified material in a footnote.

To that end, President Trump requests that the Court approve the renewed use of the previously approved and appropriately secure location so that he is then able to discuss the relevant classified information with his counsel without the need to mobilize his security detail and state and local law enforcement every time he has a conversation regarding his defense as it relates to purportedly classified information.8

8 Again, President Trump is not asking for the proposed CIPA Protective Order to be modified to permit any classified materials to be transported to, or stored in, this location.

[snip]

Indeed, the government has the authority to discuss the purported classified material in other approved facilities outside of a Court designated SCIF, and we anticipate it does so regularly. That is not inconsistent with the law so long as they are having those discussions in a secure, approved facility. Our request is to have the same opportunity. We are seeking the Court’s permission to discuss classified information in a secure facility that was long approved for such use and met then, and could easily meet now, the standard required by our nation’s intelligence community to ensure protection of information deemed classified. [my emphasis]

All the reassurances that Trump doesn’t want to store classified material back at Mar-a-Lago modify claims that it might not be classified. Given those caveats, there’s a big question whether stolen classified documents will end up right back at Mar-a-Lago.

Put aside the gimmick here — Trump is demanding that the government make his home a legal place for classified information, which still amounts to seeking, “permission to do so in the very location at which he is charged with willfully retaining the documents charged in this case.”

This is also a filing about Secret Service. The response and Todd Blanche’s related declaration describes that this proposal is based on, “multiple communications with several individuals who are familiar with the required security protocols surrounding President Trump and his family.” But it doesn’t describe any consultation with the people whose job it is to protect classified records.

6. When President Trump was in office, there was a designated, secure location where classified information was approved to be housed and discussed. We have had discussions with officials familiar with this arrangement.

Blanche says that because he had discussions with the Secret Service agents who know where the SCIF was, it’s the same as discussing security arrangements for building and maintaining one.

That is, this filing is about conflating the protection of Trump with the protection of classified records.

Indeed, Trump repeatedly minimizes the risk of storing classified records at Mar-a-Lago, with all the spies targeting it (which I’ll return to), because of the Secret Service detail there.

Similarly, the government’s statement to the court in its Motion that President Trump’s personal residence should be compared to the residence of “any private citizen” is misleading. This is especially true given the necessary protections afforded to our nation’s leaders after they leave office and the uniqueness of the location of President Trump’s residence, coupled with the fact that a secure location already existed for the relief sought herein and can be re-established with appropriate safeguards.6

6 The statement comparing President Trump’s personal residence at Mar-a-Lago to that of “any private citizen” is all the more disingenuous considering a member of the prosecution’s trial team has visited the Mar-a-Lago property during the course of the investigation and is therefore personally aware of the differences between President Trump’s residence and that of “any private citizen.”

[snip]

President Trump objects to the Proposed Protective Order insofar as it does not allow him and his counsel to discuss the relevant purportedly classified material inside an appropriate secure facility at or near his personal residence. Limiting any discussions with counsel to the government offered SCIFs is an inappropriate, unnecessary, and unworkable restriction, given the unique circumstances of President Trump’s access to security—namely that he resides and works in a secure location that is protected at all times by members of the United States Secret Service, and that the proposed alternate location previously housed an area approved for not only the discussion, but also the storage and review, of classified information

[snip]

The government’s Motion dismisses this fact and compares President Trump’s request herein to any other defendant’s request to discuss classified information in their “private” or “personal residences” or offices. (See ECF No. 84 ¶¶ 13–14). This characterization is misleading and misconstrues the facts of this case. Donald J. Trump served as President of the United States for four years, and he, along with other Presidents and senior government officials, have had access to remote facilities for the purposes of reviewing and discussing sensitive information while in office, and at times after leaving office.

Of course, Trump didn’t have access to classified information after he left office, at least not after Biden ended Trump’s classified briefings in February 2021.

But this dispute is likely partly an attempt to manufacture some conflict between the President and the guy who wants to replace him.

The argument here is based on inflated claims about how hard it is for Trump and his Secret Service detail — who are making multiple trips a week to give speeches in places like New Hampshire high school gymnasia — to travel from Mar-a-Lago to a SCIF in South Florida.

2. If President Trump travels to a public facility in the Southern Division of this District, most circumstances would require an overnight stay in the local area by his protective detail, including members of the Secret Service, as well as an overnight stay by President Trump, due to the distance between his residence and the public facility.

[snip]

5. In any of these scenarios, the required security measures take significant planning and effort, as well as financial resources.

6. The alternate secure location in which President Trump seeks to discuss (but not review) classified information is under 24-hour a day full security protection, whether President Trump is present or not. Furthermore, the government can re-establish a restricted area within the proposed secure location in which President Trump and his legal team can discuss classified information in a manner that is consistent with government security protocols.

7. Between 2017 and 2021, with reasonable effort and expense, a secure facility was established and approved at President Trump’s residence in the Southern District of Florida. In that facility, President Trump was permitted to review and discuss classified information. Reestablishing this secure facility is readily possible if the Court so directs.

Donald J. Trump — the same guy who never missed a chance to bilk the Secret Service for space in his own residences or hotels — is demanding that the US Government minimize the inconvenience of secure travel by him to defend himself for stealing classified information even as he is traveling all over the country — incurring the same costs and inconveniences for those around him — campaigning with nary a care about the cost that imposes on tax payers.

And he’s not offering to pay the US government to rebuild the SCIF in his beach resort.

Multiple people on Xitter joked that he’ll probably just ask Mexico to pay for it, and that’s about right: Trump is promising that the government can build something instantaneously without cost.

But given that Aileen Cannon is involved, it may well work.

This is not a good faith offer. It is an attempt to create a conflict that, if and when it is appealed to the 11th Circuit, will present closer calls than the ones on which Judge Cannon got her ass handed to her last year.

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