Ruby Freeman was not a public figure until Donald Trump and Rudy Giuliani made her one, until they turned her into the villain of their feverish conspiracy theories about black women and voting. But early on in the appellate hearing on Judge Tanya Chutkan’s gag in the January 6 trial, Trump’s attorney John Sauer claimed there were no people covered by the gag who were not public persons.

That will become important if, as I suspect, the DC Circuit panel of Patricia Millett, Cornelia Pillard, and Bradley Garcia, upholds Judge Chutkan’s gag, but narrows it with regards to public persons. I suspect the court will throw out the gag on Trump comments about prosecutors (but not their family), limit the gag about public people like Mark Milley and Mike Pence to specifics about this trial, but adopt the gag as is for non-public people like Freeman.

Then we’ll have a fight about who counts as a public figure or not.

The most striking thing about the hearing, however, was how aggressively Trump attorney John Sauer dodged any accountability for his client. The judges, especially Millett, asked him a series of hypotheticals to try to get him to lay out a standard that wouldn’t fall astray of the First Amendment. And Sauer kept getting cornered saying, basically, only the clear harm standard could apply to a gag on his client’s speech. Effectively, he was saying that Trump has to be criminally charged with witness tampering rather than gagged. At one point, Sauer suggested that Trump must be permitted to wage this case in the public sphere, that there can be no consideration for the public interest in a fair trial. In another, he got awfully close to arguing that Trump should be treated as a stranger to this case, meaning no restrictions could be imposed, rather than the accused defendant. In a third, Sauer suggested that Trump must be permitted to run for election on a campaign of threats against his adversaries. Over and over, Sauer argued that Trump should be permitted to say things publicly — at campaign rallies or on his failing Social Media site — that Sauer he agreed would be prohibited under the gag order if he did it on the phone with a witness.

I doubt this will be a winning argument before the DC Circuit. But Sauer is really making a play for Clarence Thomas and Sam Alito, not Patricia Millett.

Update: Fixed reference to Sauer as Lauro.

Last week, CNN reported that the President’s brother, James Biden, is among some number of people who have received a grand jury subpoena for ongoing investigations into Hunter Biden. The investigative steps are unsurprising. As I noted, David Weiss spoke with Los Angeles US Attorney Martin Estrada on September 19 of this year about something that “goes to an ongoing investigation.”

According to materials released by Joseph Ziegler, the IRS interviewed James Biden on September 29, 2022, the last interview in the investigation before the failed plea deal. He was asked about a range of topics: a payment he received from Owasco before he was working with them, his and Hunter’s interactions with CEFC, Hunter’s relationship with Kevin Morris, and about several dodgy people whom Hunter paid in 2018 — payments he wrote off on his taxes. Prosecutors had discussed at least two of those people with Hunter’s legal team during the summer in 2022.

James Biden’s September 2022 interview was voluntary, suggesting investigators obtained any documents discussed in the interview — all but two of which appear to predate April 2019, and so might be among the non-Google materials that investigators first obtained from the laptop provided by John Paul Mac Isaac — via other means, including the laptop and warrants obtained downstream of the laptop. Again, any Google content is an exception to this; it appears the IRS obtained the first Google warrant for Hunter’s Rosemont Seneca account before getting the laptop, but it also appears that the government did not obtain things normally available in a Google warrant–such as attachments and calendar notices–with that warrant and so instead relied on the laptop.

As CNN describes, thus far the subpoenas seek documents; it’s unclear whether anyone (besides someone from the new IRS team put on the case after Weiss removed Gary Shapley and Joseph Ziegler) has or will testify in person. There are certainly documents that the IRS didn’t seem to have in last year’s interview with James Biden, such as details of his trips to California in 2018 to try to save his nephew from the throes of addiction.

But it’s also possible Weiss is using subpoenas to obtain records that otherwise would be tainted by the laptop.

When Estrada testified to the House Judiciary Committee about the recommendations about this case his senior prosecutors made in three different reports, recommendations he adopted and conveyed to Weiss in a call on October 19, 2022, he referenced Justice Manual rules. “We look at whether a Federal offense has been committed and whether we believe that there is admissible evidence sufficient to prove to an unbiased trier of fact that an individual has committed an offense beyond a reasonable doubt.” So the quality of evidence obtained in this investigation could be one reason Estrada’s career prosecutors advised him not to partner on this case.

The details about a renewed investigation into Hunter Biden are not surprising — Estrada’s testimony already suggested as much.

More interesting, however, is CNN’s report that the FBI has completed its part of the investigation, pertaining to FARA and money laundering, and expects no charges.

The FBI, which oversaw the money laundering and FARA portions of the investigation, concluded its findings and didn’t anticipate charges to emerge from those allegations, people briefed on the matter told CNN.

That’s important because potential FARA charges are the reason why this case didn’t end in a plea in July — or at least, the excuse David Weiss and his sheep-dipped prosecutor, Leo Wise, referenced to sustain a claim that the investigation was ongoing.

On July 10, in the wake of a Republican uproar about the Hunter Biden plea deal and public comments from Bill Barr about the FD-1023, Weiss told Lindsey Graham that the allegations of bribery Mykola Zlochevsky made, after outreach from Rudy Giuliani and sometime around when Bill Barr’s DOJ dropped their investigation of him, “relate to an ongoing investigation.” That was probably the second clue that Hunter’s legal team got that the investigation they believed had concluded remained (re)open — the first being Weiss’ press release on the charges on June 20. And in the failed July 26 plea hearing, a potential FARA charge is the specific criminal exposure Leo Wise raised which led Hunter to plead not guilty to a deal significantly negotiated by Delaware AUSA Lesley Wolf.

THE COURT: All right. So there are references to foreign companies, for example, in the facts section.

Could the government bring a charge under the Foreign Agents Registration Act?

MR. WISE: Yes.

THE COURT: I’m trying to figure out if there is a meeting of the minds here and I’m not sure that this provision isn’t part of the Plea Agreement and so that’s why I’m asking.

MR. CLARK: Your Honor, the Plea Agreement —

THE COURT: I need you to answer my question if you can. Is there a meeting of the minds on that one?

MR. CLARK: As stated by the government just now, I don’t agree with what the government said.

THE COURT: So I mean, these are contracts. To be enforceable, there has to be a meeting of the minds. So what do we do now?

MR. WISE: Then there is no deal.

Leo Wise refused to agree that FARA charges were off the table, even though — if you believe Abbe Lowell’s version of events — Lesley Wolf led Hunter’s team to understand, weeks earlier, that FARA charges were off the table. And based on that, Hunter refused to plead guilty.

That’s what gave David Weiss the opportunity to ask to be made Special Counsel: a claim, made after he had already filed tax and a gun charge on June 20, that he was still pursuing an investigation tied to the FD-1023, which would be bribery and money laundering. That’s what led to the three felony gun charges for owning a gun for 11 days in 2018. And that’s what led to a renewed investigation in Los Angeles. And now, David Weiss is using a Los Angeles grand jury to obtain evidence from James Biden that he didn’t think he needed a year ago.

That potential FARA charge is the excuse Weiss used to limit a deal his office had entered into a month earlier. And now, less than two months into any new investigative focus in Los Angeles, CNN says the evidence doesn’t support FARA charges. That’s not surprising. Joseph Ziegler and Gary Shapley released numerous documents showing Weiss’ team discarded various FARA theories months and years ago (though a CEFC theory was still active as of July 2022).

But it means, at least per CNN, the rationale Weiss and Wise used to sustain the investigation proved short-lived.

That’s important background to Hunter Biden’s request for subpoenas for Trump and others in advance of pretrial motions that Hunter Biden will likely file next month, which I will discuss in more length in a follow-up. Contrary to what some smart commentators, like Popehat, have repeatedly argued, there’s no reason to believe Biden is pursuing this “to develop more evidence that Trump people have it in for him that he can use in future prosecutions,” if Trump returns to the presidency.

Indeed, Abbe Lowell said these subpoenas are, “relevant and material to a fundamental aspect of issues in his defense that will be addressed in pre-trial motions.”

Lowell further explained he needs the subpoenas to figure out whether Weiss’ “change of heart” regarding charges was a “response to political pressure.”

From a Fifth Amendment perspective, it is essential for Mr. Biden to know whether anyone improperly discussed, encouraged, endorsed, or requested an investigation or prosecution of him, and to whom and under what circumstances. The information sought would demonstrate that fact. This is especially true in light of the fact that no new evidence related to these charges emerged between June 20 (when the plea deal was first presented to the Court) and July 26 (when the prosecution reneged on its deal), and in fact only more favorable case law on this issue has developed since then.18 Thus, the prosecution’s change of heart appears to be in response to political pressure, rather than anything newly discovered in the investigation of Mr. Biden. Because such evidence, only some of which has been disclosed already, would tend to undermine the prosecution’s allegation that this case was free from any political inference and was not of a selective or vindictive nature, Mr. Biden’s requests are relevant and material under the requirements of Rule 17(c). [my emphasis]

I imagine that if David Weiss is ever forced to explain what led to the head fake with the plea, he will claim that it had to do with the way he tried to sheep dip the investigation after he decided to charge the case even in spite of Shapley and Ziegler’s efforts to force the issue.

Last December, according to IRS Director of Field Operations Michael Batdorf’s September 12 testimony, Batdorf and Darrell Waldon made the decision to remove Shapley and Ziegler from the Hunter Biden investigation. They didn’t implement it, though, until May, after and because Weiss decided he would charge the case, at which point the IRS assigned a completely new team.

Having an objective set of eyes — complete objective set of eyes on the case where the new investigative team came in and the case is good, the evidence is good, that was something that we just said, let’s — we removed the cooperating revenue agent that was doing tax calculations. We just got an entire new investigative team in there.

[snip]

My concern was the opposite, that if they remained on the case, the case would not go forward

[snip]

It was my interpretation from the phone conversation that we had in December [with Weiss] that there were concerns with the investigation and investigative team, and adding up all those concerns, so having a harder time jumping over that, you know, moving forward with this prosecution.

He never specifically stated that we had to remove the investigative team. He stated that he does not control IRS resources, and he understands that. But part of the concern of moving forward was our investigative team.

[snip]

There was no more investigative activities to take. We can get this to prosecution with a new investigative team.

Partly, this may have just been an effort to avoid having to provide Jencks material, some of which Ziegler and Shapley have since already provided Congress. Even last year, Weiss recognized that Ziegler couldn’t present the revenue assessments at trial that he has spent months sharing with Congress. With a new IRS team, Weiss has secured witnesses who can take the stand without requiring that Weiss share documentation of an obsession with charging Hunter Biden and, frankly, of including his father in the investigation.

It may also be an attempt to insulate any charges from a claim that a law enforcement official found by his supervisor to be making, “unsubstantiated allegations [about Weiss] of motive, intent, and bias” had forced a prosecutor’s decision. After which Shapley and Ziegler have spent months trying to do just that!

But it may not have been just the IRS team. Batdorf described that there had also been a change in AUSA, which would include Lesley Wolf, around the same time.

A It’s my understanding that there had been a change in the AUSA, the prosecution team.

Q And when was the change made? Do you know?

A I believe that was made in roughly — I think it was May or June of this year when we decided to move forward with the investigation.

When staffers asked FBI Special Agent in Charge Thomas Sobocinski in his September 7 interview the same question, he wasn’t sure whether that was true or not. “I don’t know that your statement is factually correct,” Sobocinski responded to an investigator asking why she had been taken off pleadings.

What Sobocinski did know, however, was that Lesley Wolf had received threats. It’s “fair” to say that “she may have concerns for her own safety,” Sobocinski agreed.

Weiss might argue that once Leo Wise took over as AUSA — if that’s what happened — then Weiss left prosecutorial decisions to Wise as a way to insulate charges from claims (made by the IRS agents trying to force more serious charges) that Wolf was biased.

The problem with that is that, on June 7, Lesley Wolf sent out what appears to be the final language on the immunity agreement tied to the plea deal.

Over the course of a few more emails, lawyers on both sides kept line-editing the deal. And on June 7, Wolf sent Clark a version that included the final language shielding Biden from future charges. The language is technical, but it would have immense consequences. Here it is in full:

“The United States agrees not to criminally prosecute Biden, outside of the terms of this Agreement, for any federal crimes encompassed by the attached Statement of Facts (Attachment A) and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day. This Agreement does not provide any protection against prosecution for any future conduct by Biden or by any of his affiliated businesses.”

The language refers to two different statements of facts; one would accompany the guilty plea and the other would accompany the pretrial diversion agreement. Together, the two statements included substantial detail about the first son’s business dealings and drug use. The statements highlighted his time on the boards of a scandal-dogged Ukrainian energy company and a Chinese private equity fund, as well as his business venture with the head of a Chinese energy conglomerate. Wolf included those statements in her June 7 email.

Wolf was still on the prosecutorial team — and negotiating a plea deal that would have ruled out FARA charges — on June 7.

That’s the same day Weiss sent the first response, to a May 25 letter Jim Jordan sent Merrick Garland about the IRS agents’ complaints of being removed from the investigation. In it, he cited Rod Rosenstein’s explanation to Chuck Grassley in 2018 how congressional interference might politicize an investigation (in that case, the Mueller investigation).

The information sought by the Committee concerns an open matter about which the Department is not at liberty to respond. As then-Deputy Attorney General Rod Rosenstein wrote in 2018 in response to a request for information from the Honorable Charles Grassley, Chairman of the Senate Committee on the Judiciary:

Congressional inquiries during the pendency of a matter pose an inherent threat to the integrity of the Department’s law enforcement and litigation functions. Such inquiries inescapably create the risk that the public and the courts will perceive undue political and Congressional influence over law enforcement and litigation decision.

Less than two months after telling Grassley to butt out, or the public would believe the Mueller investigation faced undue political influence, Rosenstein would grovel to keep his job, assuring President Trump he could “land the plane.” In practice, the reference was not exactly a guarantee of prosecutorial independence, but if Weiss hoped Jordan would understand that, the all-star wrestler didn’t take the hint that corn farmer Grassley took to heart.

Weiss might claim that he replaced Wolf with Wise and in the process had Wise reassess the prior prosecutorial decisions. But, given the date of that letter, there was never a moment he had done so before the political pressure started. David Weiss cannot claim he did so before being pressured by Jim Jordan.

And Jordan’s letter wasn’t the only political pressure. On the same day that Weiss said he couldn’t share information — the likes of which Shapley had already started sharing — because it might politicize an ongoing investigation, Bill Barr (one of the people Lowell wants to subpoena) publicly intervened in the case, insisting the FD-1023 recording Mykola Zlochevsky making a new allegation of bribery had been a live investigative lead when it was shared with Weiss in October 2020, the FD-1023 Weiss specifically said he could not address because it was part of an ongoing investigation.

On a day when Lesley Wolf remained on the case, both Jordan and Barr had already intervened. And because there was never a time that Weiss had replaced Wolf with Wise before the political pressure started, there was little time he had done so before the physical threats followed the political pressure.

In fact, when Congressional staffers asked Sobocinski whether he and David Weiss spoke about Shapley and Ziegler’s testimony after it went public on the day the plea deal was announced, Sobocinski described that both agreed that Shapley’s testimony would have an effect on the case. “We both acknowledged that it was there and that it would have had it had an impact on our case.” But that effect was, to a significant extent for Sobocinski, about the threats that not just investigators, but also their family members, were getting.

I am solely focused on two things, and they’re not mutually exclusive. The first thing is, like every investigation, I want to get to a resolution in a fair, apolitical way. The second thing, and it’s becoming more important and more relevant, is keeping my folks safe. And the part that I never expected is keeping their families safe. So that, for me, is becoming more and more of a job that I have to do and take away from what I was what I signed up to do, which was investigate and do those things. So when you talk about potential frustrations with communication, I am personally frustrated with anything that places my employees and their families in enhanced danger. Our children, their children didn’t sign up for this.

In Weiss’ testimony to HJC, he described threats too. But unlike Sobocinski, he may not have pointed to the effect Shapley’s now debunked claims had in eliciting them.

Weiss said people working on the case have faced significant threats and harassment, and that family members of people in his office have been doxed.

“I have safety concerns for everybody who has worked on the case,” he said.

He added that he doesn’t know what motivates the people who have threatened his team.

“I’ve certainly received messages, calls, emails from folks who have not been completely enamored of my — with my role in this case,” he added, noting that he is also concerned for his family’s safety.

Weiss’ testimony that he wasn’t sure what motivated the people who threatened his team may not help him insulate his case, because Shapley’s testimony likely wasn’t the only likely source of threats.

Among the things Lowell cited in his request for subpoenas were the four Truth Social posts Trump made between the plea deal first was posted and the day the plea failed, one of which criticized Weiss by name and called for Hunter Biden’s death.

Trump Truth Social posts on June 20, 2023:

• “Wow! The corrupt Biden DOJ just cleared up hundreds of years of criminal liability by giving Hunter Biden a mere ‘traffic ticket.’ Our system is BROKEN!”
• “A ‘SWEETHEART’ DEAL FOR HUNTER (AND JOE), AS THEY CONTINUE THEIR QUEST TO ‘GET’ TRUMP, JOE’S POLITICAL OPPONENT. WE ARE NOW A THIRD WORLD COUNTRY!”
• “The Hunter/Joe Biden settlement is a massive COVERUP & FULL SCALE ELECTION INTERFERENCE ‘SCAM’ THE LIKES OF WHICH HAS NEVER BEEN SEEN IN OUR COUNTRY BEFORE. A ‘TRAFFIC TICKET,’ & JOE IS ALL CLEANED UP & READY TO GO INTO THE 2024 PRESIDENTIAL ELECTION. . . .”

Trump Truth Social post on July 11, 2023:

“Weiss is a COWARD, a smaller version of Bill Barr, who never had the courage to do what everyone knows should have been done. He gave out a traffic ticket instead of a death sentence. Because of the two Democrat Senators in Delaware, they got to choose and/or approve him. Maybe the judge presiding will have the courage and intellect to break up this cesspool of crime. The collusion and corruption is beyond description. TWO TIERS OF JUSTICE!”9 [my emphasis]

There is, thanks in significant part to Jim Jordan, abundant documentation that between the time Lesley Wolf first sent out language seemingly promising Hunter Biden he would not be charged with FARA and the time Leo Wise told Judge Maryanne Noreika that he still could be, Republicans started pressuring David Weiss about his decisions. Thanks to Jordan, there are also multiple witnesses who have described that between the time Lesley Wolf shared immunity language and the time when — Abbe Lowell claims — David Weiss reneged on that language, the investigative team started having to fend off credible threats, not just to themselves, but also their family members.

To be sure, between the time Hunter’s lawyers made clear they planned to argue Weiss reneged on a deal and the time Lowell asked for subpoenas, in part, “possibly as impeachment of a trial witness,” Weiss testified that he always planned on continuing the investigation.

At the time, Biden’s lawyers signaled that the deal meant the Justice Department’s probe of the president’s son was over. But, according to Weiss, the investigation hadn’t ended at that point.

“I can say that at no time was it coming to a close,” he said. “I think, as I stated in the one statement I made at the time, the investigation was continuing. So it wasn’t ending there in any event.”

Yet according to CNN, two months after Weiss spoke to Estrada, seemingly to renew investigative activity in Los Angeles, any FARA investigation has ended. Instead, Weiss appears to be conducting new investigative steps in the tax case, investigative steps that started a week after IRS’ head of Field Operations testified that he understood “there was no more investigative activities to take.”

Both David Weiss and Leo Wise have publicly suggested that the ongoing investigation which Weiss insisted to Congress had always been planned was FARA or bribery related. That claim seems to have served no other purpose than to have given themselves a chance to reconsider tax charges both once claimed could be settled with misdemeanor charges.

Update: Batdorf link corrected.

Phil Rucker has wasted yet more journalistic space and time in his obsessive pursuit of Hunter Biden dick pics.

Today, it comes in a 4,800-word piece from Matt Viser rehashing what we already knew about Hunter Biden trading on his father’s name — a piece that couldn’t manage to find space to include specific emails where Hunter told potential business partners he would not lobby for them, as he told Vuk Jeremic in 2016 when they were discussing gas deals in Mexico: “[A]s I have also said many times I won’t  engage in I [advocating] on your behalf with my father or anyone else in the USG.”

Viser, who seems to think he is clever, ends his piece with an exchange between Hunter and his business partner, Devon Archer. Archer complains that Joe Biden didn’t step in and make Archer’s legal troubles go away.

“Why did your dad’s administration appointees arrest me and try to put me in jail? Just curious,” Archer asked in a text message, in an exchange found on a copy of Hunter’s hard drive and verified by a person familiar with it. “Why would they try and ruin my family and destroy my kids and no one from your family’s side step in and at least try to help me. I don’t get it.”

Archer declined to comment on the exchange.

“Buddy are you serious,” Hunter responded, going on to explain the role of an independent Justice Department and the need for checks and balances.

“It’s democracy. Three co equal branches of government,” he wrote. “You are always more vulnerable to the overreach of one of those Co equal branches when you are in power.”

Viser apparently didn’t find space — not in 4,800 words — to mention what Chuck Grassley and Scott Brady just revealed: According to Grassley, in 2016, while Biden was Vice President and his kid was on the board of Burisma, DOJ opened a corruption investigation into Mykola Zlochevsky.

[I]n December 2019, the FBI Washington Field Office closed a “205B” Kleptocracy case, 205B-[redacted] Serial 7, into Mykola Zlochevsky, owner of Burisma, which was opened in January 2016 by a Foreign Corrupt Practices Act FBI squad based out of the FBI’s Washington Field Office.

Again, according to Grassley, this investigation was opened when Biden was VP and Hunter was on the board of Burisma. It was closed (according to Grassley) in December 2019, even as Trump defended himself against impeachment by claiming that it was important to investigate claims of corruption related to Burisma.

Opened in January 2016. Closed in December 2019. Is that clear enough for you to understand, Matt?

And just weeks later, starting on January 3, 2020, Bill Barr set up a means to insert information Rudy Giuliani obtained — according to Lev Parnas, including from Zlochevsky — into the Hunter Biden investigation. The FD-1023 at the core of Republican efforts to gin up impeachment, one that records a claim Zlochevsky appears to have made in late 2019 that conflicts with what Zlochevsky said in spring 2019, has its roots in the corruption investigation into Zlochevsky opened during the Obama Administration and closed as Trump publicly staked his presidency on a claim to care about Burisma corruption.

The investigation into Zlochevsky got closed (again, per Grassley). And Zlochevsky made a claim that conflicted with his past claims about Hunter Biden. Both happened in roughly the same period.

I’m not sure how Viser didn’t consider that worthy of inclusion in his little story. Nothing demonstrates the irony he seemed to be chasing so much as that the investigation opened while Joe Biden was Vice President is now being weaponized by people like Viser while Biden is President.

Perhaps Viser and Rucker didn’t think that new news was worth sharing, because doing so would make it clear that the entire campaign against Hunter Biden — Viser’s little journalistic hobby that Rucker pays him for — has its roots in the fact that the Obama Administration didn’t protect even Joe Biden’s kid. Sharing that news would require thinking about how the WaPo’s Hunter Biden obsession routinely exhibits the kind of corruption they claim to be exposing.

And so you won’t find that in Viser’s 4,800-word story.

Update: Two more comments about what a corrupt person Viser is.

First, this story seems to be based on Devon Archer’s bid to provide testimony again, which his attorney offers to do in the story. It comes as DOJ just obtained an extension to brief his appeal before SCOTUS. As such, it could be read as an implicit threat from Archer that if President Biden doesn’t keep him out of jail, he will become a bigger political problem then he already is.

Second, as Viser has done in the past, he ignores statements from Abbe Lowell — such as that Tony Bobulinski lied to FBI — relevant to his recycling of certain of these emails (in this case, 10% for Big Guy).

Thus far, I haven’t engaged with the lawsuits attempting to keep Trump off the ballot under the Fourteenth Amendment. I think people absolutely have the right to make the case Trump’s actions on January 6 disqualify him from being President. But the only decisions that will matter on this front are what various Supreme Courts have to say and whether the Republican Party chooses to nominate Trump notwithstanding the risk he’ll be disqualified (to say nothing of whether Trump is disqualified in one of the six states that will really decide the election).

But Colorado Judge Sarah Wallace’s opinion finding that Trump did engage in incitement, but can’t be disqualified because the President is not clearly an “officer” under the Fourteenth Amendment, is worth reading.

The Court concludes, based on its findings of fact and the applicable law detailed above, that Trump incited an insurrection on January 6, 2021 and therefore “engaged” in insurrection within the meaning of Section Three of the Fourteenth Amendment. First, the Court concludes that Trump acted with the specific intent to disrupt the Electoral College certification of President Biden’s electoral victory through unlawful means; specifically, by using unlawful force and violence. Next, the Court concludes that the language Trump employed was likely to produce such lawlessness.

[snip]

The Court concludes that Trump acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification. Trump cultivated a culture that embraced political violence through his consistent endorsement of the same. He responded to growing threats of violence and intimidation in the lead-up to the certification by amplifying his false claims of election fraud. He convened a large crowd on the date of the certification in Washington, D.C., focused them on the certification process, told them their country was being stolen from them, called for strength and action, and directed them to the Capitol where the certification was about to take place.

[snip]

His inaction during the violence and his later endorsement of the violence corroborates the evidence that his intent was to incite violence on January 6, 2021 based on his conduct leading up to and on January 6, 2021. The Court therefore holds that the first Brandenburg factor has been established.

[snip]

The Court holds there is scant direct evidence regarding whether the Presidency is one of the positions subject to disqualification. The disqualified offices enumerated are presented in descending order starting with the highest levels of the federal government and descending downwards. It starts with “Senator or Representatives in Congress,” then lists “electors of President and Vice President,” and then ends with the catchall phrase of “any office, civil or military, under the United States, or under any State.” U.S. CONST. amend. XIV, § 3.

[snip]

As a result, the Court holds that Section Three of the Fourteenth Amendment does not apply to Trump.

Wallace’s opinion is best understood as a punt to Colorado’s Supreme Court: a finding of facts which they will eventually decide how to apply. She says as much in a footnote: She made the finding of fact that Trump did engage in insurrection so the Colorado Supreme Court can resolve any appeal without coming back to her.

The Court is denying Petitioners the relief they request on legal grounds. Because of the Parties’ extraordinary efforts in this matter, the Court makes findings of facts and conclusions of law on all remaining issues before it. The Court does so because it is cognizant that to the extent the Colorado Supreme Court decides to review this matter, it may disagree with any number of the legal conclusions contained in this Order and the Orders that precede it. The Court has endeavored to give the Colorado Supreme Court all the information it needs to resolve this matter fully and finally without the delay of returning it to this Court.

But it’s also a preview of Trump’s January 6 trial.

Perhaps the most interesting aspect of Wallace’s ruling is that she found, over and over, that Trump’s side did not present evidence to fight the claim of insurrection. Trump’s legal expert, Robert Delahunty (who contributed to some of the most outrageous War on Terror OLC opinions), presented no definition of insurrection that wouldn’t include January 6. Kash Patel presented no evidence to back his claim that Trump intended to call out 10,000 members of the National Guard. Trump presented no evidence that criminal conviction was required before disqualification. There was no evidence presented that Trump did not support the mob’s purpose.

Once Wallace dismissed Kash (and Katrina Pierson’s) claims that Trump intended to call the National Guard, all Trump had left was Brandenburg: a claim that his speech did not count as incitement, the same claim Trump has made in his efforts to defeat gags, the same claim Trump attempted to use to get Judge Chutkan to throw out any reference of the mob in his January 6 indictment.

Wallace used three things to show that Trump did intend to incite the mob.

First, she relied heavily on the testimony of Chapman University (!!!) professor Peter Simi, who described how Trump used the coded language of the far right to endorse violence. She mapped out what Trump added into his January 6 speech. And she talked about how Trump’s later statements — about Pence, and telling the mob he loved them — ratified their violence (an argument Amit Mehta also made), which Wallace used to distinguish Trump from Charles Evers.

As I have shown, Trump has tried to simply wish away the role of the mob in his indictment, a wish that Tanya Chutkan already rejected. Judge Wallace’s opinion makes it clear that’s all Trump has.

In a short order, Judge Tanya Chutkan denied Trump’s motion to strike all the language about his mob in his indictment. Her order was so short for two reasons: first, Trump hadn’t really addressed the issue of prejudice he was invoking, and second, the only means by which the indictment itself would introduce prejudice — in the jury room — won’t happen because Judge Chutkan never provides the indictment to they jury.

Defendant’s sixteen-page Reply In Support of the Motion, despite making numerous inflammatory and unsupported accusations of its own, see, e.g., ECF No. 156 at 7 (“President Biden directed the Department of Justice to prosecute his leading opponent for the presidency through a calculated leak to the New York Times.”), devotes only a single paragraph to the prejudice requirement. His sole argument is that even if the jury does not receive a copy of the indictment, “[v]oluminous evidence exists here that the jury pool has been, and continues to be, exposed to the Indictment and its inflammatory and prejudicial allegations, through media coverage relating to the case.” Id. at 16. But Defendant fails to cite even one example of that evidence.

Her reference to Trump’s own inflammatory comments called out something that is apparent in reading his reply brief to overturn her gag before the DC Circuit (which largely rehashes the same tired arguments). There, he argues that he has a First Amendment right to say whatever he wants — about Joe Biden, about the trial, about anyone else, including Chutkan, the death threat against whom Trump disclaims any role.

The prosecution describes President Trump’s statement, “If you go after me, I’m coming after you,” as a “public threat,” Resp.Br.4 (citing J.A.79). However, this statement made no reference to this case, and his campaign explained that it was made “in response to … special interest groups and Super PACs.” App.Br.15 n.7. The prosecution ignores this explanation—the only evidence of what the statement was actually referring to—and relies instead on naked speculation.

The prosecution implies that this statement caused a random person to threaten the district judge on August 5, 2023. Resp.Br. 5-6. Again, this is pure speculation, and wrong to boot. As noted above, President Trump’s statements criticizing the district judge came after the August 5 incident. J.A.79-80. The prosecution also cites no evidence that this random individual was inspired to act by President Trump’s August 4th social-media post, which did not even reference this case.

For what it’s worth, while he didn’t mention Trump, the father of Abigail Jo Shry, the woman who called Judge Chutkan’s chambers and threatened her, described that Shry’s threats were always responses to watching the news.

Defendant’s father, Mark Shry testified at the detention hearing. Mr. Shry believes that Defendant is a non-violent alcoholic. He testified that she sits on her couch daily watching the news while drinking too many beers. She then becomes agitated by the news and starts calling people and threatening them. Mr. Shry stated that his daughter never leaves her residence and therefore would not act upon her threats.

Even in his reply brief, though, Trump made new threats, attacking Jack Smith’s spouse because she exercised her political rights to donate to Joe Biden.

Judge Chutkan didn’t quite say it: But Donald Trump is simultaneously claiming he has the right to make any threats he wants, but no one else has the right to describe the way his threats lead to violence.

She didn’t quite say it.

But she did make it quite clear that Trump is trying to have a protected privilege to make inflammatory threats, while gagging others about the effect of them.

In comments to my thread describing how Aileen Cannon had deferred decision on the Trump stolen documents case, I admitted a lot of smart people were warning that her order was a non-appealable death knell for the May trial.

Those smart people were right. Judge Cannon has all but ensured that Republican voters will not have a chance to learn whether Trump really did store nuclear documents in his bathroom before picking him as their candidate.

Yesterday, Jay Bratt asked her to set an earlier deadline for CIPA 5 — the part of the process where Trump describes what he wants to use at trial.

In the Court’s Order Granting in Part Government’s Motion to Continue Trial and Resetting Deadlines (ECF No. 83), it set November 17, 2023, as the deadline for the defense to file their CIPA Section 5 notice. In ECF No. 205, the Court stayed the November 17 deadline, among others, and in its Order Granting in Part Defendants’ Motion to Continue Pretrial Deadlines and Denying without Prejudice Motion to Adjourn Trial, the Court superseded all deadlines except those identified in the Order. ECF No. 215 at 8. The Court’s new set of CIPA deadlines did not include a date for the defense to file a CIPA Section 5 notice.

[snip]

Defense counsel now have full access to approximately 5,500 pages of classified discovery (see ECF No. 215 at 4) – the vast majority of the classified discovery in this case – and the laptops necessary to create pleadings referencing those materials. They therefore are in a position to provide notice under CIPA Section 5 as to which documents or pieces of information from these 5,500 pages, or from any other source, they reasonably expect to disclose at trial. Providing such notice by a set, near-term date will facilitate the completion of CIPA litigation before the May 20, 2024 trial date.

[snip]

The Government acknowledges that (a) rulings on its CIPA Section 4 motion will likely result in the production of a limited amount of additional classified discovery;2 and (b) the defense could be successful in compelling the production of other classified materials. However, rather than delaying setting any CIPA Section 5 deadline until the CIPA Section 4 and discovery litigation is complete, the Court should reset the initial CIPA Section 5 deadline for December 18, 2023, with the understanding that it may be necessary to permit a supplemental CIPA Section 5 notice after all classified discovery issues have been resolved.

Judge Cannon responded within short order.

No.

PAPERLESS ORDER denying without prejudice 219 Motion for CIPA Section 5 Notification. As stated in the Court’s November 10, 2023, Order 215, “[a]ll previously remaining deadlines in the Court’s July 21, 2023, Order are superseded except calendar call and trial.” The Court “reset[] the first set of pre-trial deadlines” as indicated on pages 8 and 9 of that Order 215 and scheduled a conference on March 1, 2024, “to address remaining deadlines.” To the extent the Special Counsel’s motion seeks reconsideration in part of the Court’s November 10, 2023, Order 215, that request is denied. CIPA Section 5 deadlines, and all other pre-trial deadlines not included in the first batch of pre-trial deadlines contained in the Court’s revised schedule 215, will be set following the March 1, 2024, scheduling conference.

At the very least, this ensures that Republicans will not know whether a jury finds that Trump harm the United States before they make him the party nominee. It may mean no voter gets to know that.

I’ve finally found Trump’s election interference!

One of several reasons why I’ve been cautious about FBI counterintelligence agent Johnathan Buma’s claims of whistleblower retaliation is how little care he has shown to protect his former informants.

Since the summer, multiple outlets have reported on Buma’s story, most focusing on Buma’s claim that his supervisors are retaliating because he shared source reporting with the FBI implicating Rudy Giuliani. After a right winger posted his statement, Insider did a story, followed by New Yorker, then MoJo, followed by an on-screen interview with Insider. The other day, MoJo reported that the FBI had searched his home for classified documents.

Buma submitted two complaints to Congress: A shorter one to Jim Jordan’s weaponization committee, and a more detailed one — which was released in redacted form in Insider’s first story on Buma — to the Senate Judiciary Committee. Between the two of them and a follow-up report from Insider, the reporting on Buma described six informants:

• Dynamo: A US-based businessman with close ties to Ukraine and Russia and, seemingly, a real gripe with Pavel Fuks
• Rollie: A former KGB agent who evolved into a clandestine operative in the Security Bureau of Ukraine (SBU) after the Soviet Union collapsed and then started a successful real estate business and a foundation that promotes the rule of law in society with stated purpose that includes holding criminal oligarchs accountable or pilfering Ukrainian state funds
• The Economist: A highly educated academic with expertise in international business and economics who consulted with Ukraine’s Prosecutor General’s Office and Rollie’s foundation
• Mr. X: A foreign informant with information about specific money laundering transactions pertaining to Ihor Kolomoyskyi
• Genius: Chuck Johnson, whom Buma had recruited in 2020
• Peter Thiel

At least four of these informants have been shut down.

Buma describes that his managers shut down Johnson as a source — for what Buma attributes to Johnson’s expression of white supremacist views on social media — in 2021, while the FBI agent was on vacation. Buma dismissed those far right postings as Johnson’s means to retain his credibility among other white supremacists. But Buma doesn’t mention any of the other fifty or so reasons why Johnson was totally inappropriate to be an FBI source, nor does he describe the larger context of FBI’s recognition, after January 6, that they had made a number of key members of militia groups informants to report on topics other than those militia groups. Buma’s treatment of Johnson seriously discredits his claims as it is, but that shocking lapse of judgement is not the point of this post.

Buma described that Rollie and The Economist were only briefly FBI informants in early 2019. He makes it clear they were fairly quickly identified to be part of the larger information operation targeting Joe Biden. While Buma acknowledges that they were part of an info op, he nevertheless claims that information they shared on Hunter Biden was the primary reason the Delaware investigation turned to examine influence peddling and tax crimes. Buma’s claims about the Hunter Biden investigation are among those that don’t match the public record (but which would be interesting, if true, because it might suggest Bill Barr funneled that report to Delaware like he funneled other dodgy allegations).

By contrast, Buma boasts of Dynamo’s productivity, crediting him with a range of critical reporting on organized crime and money laundering. He specifically cites Dynamo’s import in subsequent legal action against Ihor Kolomoyskyi and Serhiy Kurchenko and what he describes to be largely unresolved reporting on Fuks. Buma doesn’t describe Dynamo providing any reporting on Andrii Derkach; indeed, he blames Fuks for Andriy Telizhenko’s information op, not Derkach. Nor does Buma describe Dynamo reporting on Mykola Zlochevsky or which Ukrainians and Russians Dynamo reported on in conjunction with the Mueller investigation.

Buma attributes some reporting Dynamo did, in 2020, on Rudy Giuliani’s fundraising for his Hunter Biden movie as the source of his troubles with his supervisors. While that’s a credible claim, given Barr’s known interference in investigations into Rudy in 2020, Buma’s description of the complexities of DOJ’s interest in Rudy similarly does not match the public record.

As Buma describes it, the Foreign Influence Task Force first recommended he shut down Dynamo after Rollie and the Economist were determined to be an information operation, which he dates to around June 2019. He fought that recommendation successfully. But then following Russia’s invasion of Ukraine in 2022, FITF renewed the recommendation and won that battle. Buma complains that one of his best sources was shut down in spite of his continued productivity.

I don’t doubt there’s some real retaliation against Buma going on. His description of being moved to a surveillance crew on the other side of Los Angeles is the kind of petty thing vindictive bosses do. We will have to wait and see what predicated the search from earlier this week.

But what I don’t get is how Buma ignores the exposure of his sources in all this. Whether or not Dynamo was part of Rollie and the Economist’s information operation (or, as seems likely, Dynamo had started handling Buma to accomplish his own objectives, something that makes Buma’s reported use of his own phone and car to work sources a bigger problem), he would have been burned by his contact with it.

As Buma describes it, Rollie and the Economist came to LA in January 2019 and, thanks to the intervention of Dynamo, presented their claims at the US Attorney’s Office. If that weren’t already enough for a former KGB agent like Rollie to figure out that Dynamo might be an informant, Dynamo’s ties to Rollie led the White House to ask for background information on Dynamo in June 2019.

On June 26, 2019, I recieved request for any/all known information related to the true name of my most sensitive confidential source, DYNAMO. This request for information originated from the White House/Special Events/Intelligence Agencies national name check program, which was sent to me through the FBI New York Field Office (NYFO). Ostensibly, the purpose or this request was to vet DYNAMO’s attendance at special event, To me this appeared to be an attempt to discover if DYNAMO was an FB recruited source. This was deep concern for me, since DYNAMO had direct access to and had reported on individuals connected to the White House related to the Special Counsel investigation. I later learned DYNAMO had taken ROLLIE and THE ECONOMIST to a special event, during which time ROLLIE gave the same thumb drive with derogatory information on it concerning Burisma to Secretary of State Mike Pompeo (Pompeo).

It makes perfect sense that FITF recommended the FBI shut down Dynamo at that point, because from that point forward, the FBI would have had to assume Russia was tracking everything Dynamo was doing and using him to plant disinformation.

But it’s Buma’s carelessness about Dynamo — and all his other sources, even including Chuck Johnson — that I find especially suspect.

As part of his complaint against the FBI, Buma sat down and catalogued a bunch of recent investigations in which he says Dynamo played an instrumental role, I guess in an effort to show how stupid the FBI was to shut him down. By his description, Dynamo has informed on all manner of organized crime, money launderers, and foreign spies. And while Insider made a big show of redacting some of the sensitive references in Buma’s more detailed statement, unsurprisingly — given that Buma shared it with a committee with a few notorious right wing Senators willing to burn anything down — it has circulated in unredacted form freely.

I’m no expert but I’ve got some guesses as to who Dynamo, Rollie, and the Economist are. Even casual members of the Ukrainian exile community in the US no doubt know exactly who they are (the New Yorker spoke with Dynamo for its story, describing him as “a businessman well connected in both Eastern European and American political circles”). Russian spooks are going to know even more.

FBI handling agents don’t do that kind of thing. It’s the kind of thing that can get someone killed.

If Dynamo really had been as valuable as Buma says he was, I can’t imagine Buma would put all this in one report, not even one sent securely to the Intelligence Committees, much less a noted fountain of leaks like SJC. It’s not a question of classified information or not (Buma’s attorney has told the press that the statement, which was seized in the search, did not include classified information). Indeed, the initial right wing blog post, about a different topic entirely, seems just like the kind of vehicle to leak such a document. If Buma believed what he says about Dynamo, his actions seem inexplicable to me.

There’s plenty that is dodgy about the FBI’s own conduct, at least as described. But there are big holes in Buma’s story, starting with his seeming lack of concern for Dynamo’s confidentiality.

Update: Corrected misspelling of Buma’s first name.

As I have shown, Trump’s collective motions to dismiss his January 6 indictment selectively treat the five means alleged in the indictment (pressuring states, the fake elector plot, using Jeffrey Clark, pressuring Pence, and exploiting the mob), never actually dealing with all five as charged.

Rather than addressing the fifth, Mob (“directing supporters to the Capitol to obstruct the proceeding, id. at ¶¶ 86-105; and exploiting the violence and chaos that transpired at the United States Capitol on January 6, 2021”), he instead filed a motion to strike all references to the mob.

Poof! It is a legalistic way to deny the very same mobsters (DOJ noted in their response) Trump has sung with and promised to pardon, and in so doing simply wish away the abundant evidence that Trump obstructed the vote certification.

It is the stuff of magic wands.

Trump’s reply uses a series of gimmicks to attempt to wish away parts of the indictment against him.

In one lengthy section that might invite a request to file a sur-reply by DOJ, Trump cites some of the greatest hits of articles by journalists who knew little about the investigation to claim that none of the investigation of the mob related to Trump.

12 Mark Hosenball and Sarah N. Lynch, Exclusive: FBI finds scant evidence U.S. Capitol attack was coordinated – sources, REUTERS (Aug. 20, 2021), at https://www.reuters.com/world/us/exclusive-fbi-finds-scant-evidence-us-capitol-attack-wascoordinated-sources-2021-08-20/.

13 William M. Arkin, Donald Trump Didn’t Run the January 6 Riot. So Why Did It Happen?, NEWSWEEK (Jan. 6, 2022), at https://www.newsweek.com/donald-trump-didnt-run-january-6-riotso-why-did-it-happen-1661335.

14 Carol D. Leonnig and Aaron C. Davis, FBI resisted opening probe into Trump’s role in Jan. 6 for more than a year, THE WASHINGTON POST (June 19, 2023), at https://www.washingtonpost.com/investigations/2023/06/19/fbi-resisted-opening-probe-intotrumps-role-jan-6-more-than-year/.

Trump also uses outdated and invented crowd numbers to claim that just a fraction of his mob was part of the mob, focusing just on the mob that entered the Capitol and not the one that besieged it, another part of this motion that might invite sur-reply.

In another place, Trump promises a motion in limine to eliminate all reference to the violence committed in his name, because the sheer violence of it will distract the jury.

For instance, the prosecution claims protesters were “extraordinarily violent and destructive.” Doc. 140, at 11. Even if marginally relevant, which it is emphatically not, the danger of “unfair prejudice, confusing the issues, [or] misleading the jury,” would far outweigh any probative value. F.R.E. 403. The fact that the prosecution even suggests that such inflammatory claims could have an appropriate place in the trial of President Trump only underscores the unfair and malicious way the Special Counsel is pursuing this case on behalf of the Biden Administration against its leading political opponent, President Trump.

In another paragraph of gibberish, Trump says that DOJ can’t include the actions (including of Couy Griffith, who had met with Trump personally) of people who weren’t charged with the same crimes he was and also says that because Merrick Garland generally defined Jack Smith’s mandate to crimes committed by those who weren’t at the Capitol, it means any crimes committed by people at the Capitol must be excluded.

Indeed, the January 6 cases relied on by the prosecution do not support its contention that “actions at the Capitol are relevant and probative evidence” of the charged conduct. Doc. 140, at 2. Several of the cases did not involve any of the charges brought against President Trump, rendering any relevance analysis inapplicable to this case. See, e.g., United States v. Griffith, No. CR 21-244-2, 2023 WL 2043223, at *1 (D.D.C. Feb. 16, 2023) (charges under 18 U.S.C. §§ 1752(a)(1), 1752(a)(2); 40 U.S.C. §§ 5104(e)(2)(D), 5104(e)(2)(G)); United States v. MacAndrew, No. CR 21-730, 2022 WL 17961247, at *1 (D.D.C. Dec. 27, 2022) (same). Those cases that did include at least one charge brought against President Trump (as well as charges not brought against him) all involved defendants who were personally present at the Capitol. Those are the types of cases that the Attorney General specifically carved out of the Special Counsel’s authority in Order No. 5559-2022: “This authorization does not apply to . . . future investigations and prosecutions of individuals for offenses they committed while physically present on the Capitol grounds on January 6, 2021.” Actual presence has been emphasized as an important factor in the relevance analysis. See, e.g., United States v. Stedman, No. CR 21-383 (BAH), 2023 WL 3303818, at *2 (D.D.C. May 8, 2023) (“defendant’s knowing joinder of a broader crowd is probative of his participation in a venture that interfered with a congressional proceeding”).

In yet another tactic, Trump falsely claims that a passage about how Trump’s manipulation of the mob demonstrates his motive pertains exclusively to his tweet attacking Mike Pence.

Despite three pages of narrative, the prosecution only suggests that one of the paragraphs that is subject to the Motion to Strike is appropriate for this purpose: paragraph 111, which relates to a social media post by President Trump concerning Mike Pence. Paragraph 111 does not show motive or intent as it relates to the actions at the Capitol.

In doing so, Trump ignores references to four other paragraphs explicitly cited in DOJ’s response.

As set forth in the indictment, on the morning of January 6, the defendant knew that the crowd that he had gathered in Washington for the certification “was going to be ‘angry.’” ECF No. 1 at ¶ 98. Despite this knowledge—or perhaps because of it—in his remarks to supporters, the defendant told knowing lies about the Vice President’s role in the congressional certification, stoked the crowd’s anger, and directed them to march to the Capitol and “fight.”

[snip]

Although the defendant knew that the certification proceedings had been interrupted and suspended, he rejected multiple entreaties to calm the rioters and instead provoked them by publicly attacking the Vice President. ECF No. 1 at ¶111. And instead of decrying the rioters’ violence, he embraced them, issuing a video message telling them that they were “very special” and that “we love you.” Id. at ¶ 116. Finally, while the violent riot effectively suspended the proceedings over which the Vice President had been presiding, the defendant and his coconspirators sought to shore up efforts to overturn the election by securing further delay through knowing lies. Id. at ¶¶ 119, 120.

Trump here ignores the warning from his aides that the mob was angry, Trump’s video declaring “we love you” to his mob, and Trump’s renewed efforts to prevent the vote certification even after the mob left.

And in two different ways, Trump tries, again, to simply wish away the evidence that Trump corruptly tried to obstruct the vote certification, two of the charges against him. In one, Trump claims that the certification of the election at the Capitol provides no context to charges that he obstructed the certification of the election at the Capitol.

As a final, futile, attempt to establish relevance, the prosecution argues that the actions at the Capitol on January 6 provide “necessary context for all the charged conduct.” Doc. 140, at 12. Nevertheless, again, the prosecution did not charge President Trump with any crime relating to the actions at the Capitol, such as insurrection or incitement. Actions by others—whom the prosecution does not claim were part of any of the alleged conspiracies—do not provide any context for the actions based on which President Trump is charged.

And then, two paragraphs later, Trump points to the paragraph delimitation in just one charge — the conspiracy to defraud the vote certification — that doesn’t exist for the other three charges, to say that DOJ has excluded the actions described in the paragraphs about the mob.

The challenged allegations’ lack of relevance to the charges against President Trump is further demonstrated by the Indictment itself. The Indictment claims that President Trump “and his co-conspirators committed one or more of the acts to effect the object of the conspiracy alleged” in a list of paragraphs. Doc. 1, ¶ 124. The Indictment omits Paragraphs 10(d), 105, 106, 107, 108, 109, 110, 112, or 113 from this list. Thus, the prosecution does not claim that the actions at the Capitol on January 6 were “acts to effect the object of the conspiracy,” an admission that these paragraphs lack relevance to the charged conduct.

Compare the list of paragraphs cited in the 18 USC 371 charge with paragraphs in the other three charges that cite paragraphs 8 through 123.

The allegations contained in paragraphs 1 through 4 and 8 through 123 of this Indictment are re-alleged and fully incorporated here by reference.

Not just his motion to strike, the promised motion in limine, and all his other efforts to, like the Apostle Peter, deny the mob he has made his religion are gimmicks, just efforts to wish away abundant evidence against him.

It all comes off as rather desperate.

And as you consider the flop sweat coming off Trump’s motion to strike, consider this: DOJ must have provided, in discovery, the evidence they plan to use to show what Trump’s mob did and that they did it because of him and his lies. DOJ has repeatedly said they’ve provided the evidence they plan to use at trial. Among the things Trump must have in his possession are the videos that show Danny Rodriguez went directly from hearing Trump’s speech to almost murdering Michael Fanone, and others responded to Trump’s Pence tweet by serving a critical role in opening a second front of the attack on the Capitol and breaching the Senate.

Trump has — must have!! — seen the evidence about his mob DOJ intends to use at trial. And his response is this blubbering effort to wish his mob away.

Abbe Lowell just asked for subpoenas to serve on Donald Trump, Bill Barr, Jeffrey Rosen, and Richard Donoghue so he can see if they have personal records of improper politicization of the case against Hunter Biden.

Lowell describes that he has specifically asked for such records in discovery, yet received nothing, even though some of it likely is (in fact — I would say — abundant records show it is) at DOJ.

To date, the defense has not received such material in discovery from the prosecution or elsewhere, notwithstanding specific discovery requests and that some of this information likely resides with the DOJ.

To support a claim that would be immediately rejected in almost any other situation and likely will still be rejected here, Lowell made two arguments.

First, an argument for the political press: Donald Trump has recently argued that his own case should be dismissed if he can prove political retaliation.

Subpoena recipient President Trump knows full well that improper pressure on prosecutors to bring criminal charges against an individual for political reasons is grounds for seeking to dismiss an indictment because President Trump recently filed a motion to dismiss on this very basis in one of his criminal cases. See United States v. Trump, No. 1:23-cr00257-TSC, D.E. 116 (D.D.C. Oct. 23, 2023).16 Similarly, subpoena recipient Attorney General Barr has explained precisely why the concern Mr. Biden raises here is problematic for this Indictment:

The essence of the rule of law is that whatever rule you apply in one case must be the same rule you would apply to similar cases. Treating each person equally before the law includes how the Department enforces the law. We should not prosecute someone for wire fraud in Manhattan using a legal theory we would not equally pursue in Madison or in Montgomery, or allow prosecutors in one division to bring charges using a theory that a group of prosecutors in the division down the hall would not deploy against someone who engaged in indistinguishable conduct.17

[snip]

16 Demonstrating hypocrisy and a lack of principles, just last week, Mr. Trump insisted that the weaponization of the judicial process is wrong (and it is), but Mr. Trump claims that he would be justified in weaponizing the judicial process against his political enemies because he believes that he has been a victim of such weaponization. See Kathryn Watson, Trump Suggests He Or Another Republican President Could Use Justice Department To Indict Opponents, CBS News (Nov. 10, 2023), https://www.cbsnews.com/news/donald-trump-weaponization-justice-departmentpolitical-opponents/. This claim certainly undercuts any notion that Mr. Trump is above such misconduct.

17 Remarks by Att’y Gen. William P. Barr at Hillsdale College Constitution Day Event (Sept. 16, 2020) (emphasis added), https://www.justice.gov/opa/speech/remarks-attorney-general-william-p-barr-hillsdale-college-constitutionday-event.

Lowell doesn’t note what I did: Trump invoked his own attacks on Hunter Biden by name in that filing, arguing that he is only being prosecuted because he has demanded that Hunter be prosecuted. Indeed, Trump went so far as claiming a document released after he was indicted in DC on August 1 was the reason why he was indicted in DC.

Without question, this is a “high-profile prosecution with international ramifications no less,” which has a “far greater potential to give rise to a vindictive motive.” United States v. Slatten, 865 F.3d 767, 799-800 (D.C. Cir. 2017). That motive is manifest. President Trump criticized the process and results of the 2020 election. He criticized Biden and his family before, during, and after that election, including with respect to misconduct and malfeasance in connection with the Ukrainian oil and gas company known as Burisma,4 China’s State Energy HK Limited, 5 and Russian oligarchs such as Yelena Baturina.6

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

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

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

That political argument won’t work.

His argument that he’s asking for known documents probably won’t either — but Lowell is right that the public record that such documents exist distinguishes the claim from most other similar requests.

For example, on December 27, 2020, then Deputy Attorney General Donoghue took handwritten notes of a call with President Trump and Acting Attorney General Rosen, showing that Mr. Trump instructed Mr. Rosen and Mr. Donoghue to “figure out what to do with H[unter] Biden” and indicating Mr. Trump insisted that “people will criticize the DOJ if he’s not investigated for real.”6 (These notes were released by the House Oversight Committee as part of the January 6 investigation.)

[snip]

Before the government intones its stock phrase, this is no fishing expedition. The statements described in this Motion actually occurred, and the events that transpired both before and after June 20, 2023 are well known to the Court. Mr. Biden seeks specific information from three former DOJ officials and the former President that goes to the heart of his defense that this is, possibly, a vindictive or selective prosecution arising from an unrelenting pressure campaign beginning in the last administration, in violation of Mr. Biden’s Fifth Amendment rights under the Constitution. Moreover, each of the former DOJ officials had known contacts with then President Trump concerning Mr. Biden, and according to recently released IRS investigative case files, each had a hand in one way or another in the still ongoing investigation of Mr. Biden, either in Delaware or elsewhere. Lastly, as reflected by both the handwritten notes taken contemporaneously by Mr. Donoghue (involving Mr. Rosen and Mr. Trump) and Mr. Barr’s vignette in his recent book, these individuals are in fact likely to have relevant materials in their possession that are responsive to Mr. Biden’s document requests. [my emphasis]

There is abundant proof that Trump was intervening with DOJ in this case. Lowell claims he hasn’t gotten that proof from DOJ. So he’s asking for it from DOJ officials directly.

To be fair, only Barr (and Trump) are likely to have documents in their personal possession, because only Barr and Trump have continued to engage in this case since leaving government.

One I’m most interested in is, after Joseph Ziegler testified that Barr, personally, made the decision to put Delaware in charge of the investigation in 2020 (at a time when Rudy Giuliani was already seeking dirt on Hunter Biden and Burisma), whether Barr reached out to someone to get Ziegler to correct his testimony and claim he wasn’t certain that Barr was personally involved.

Again, these requests almost never work. But not even Peter Strzok was able to point to known documentation tying Trump directly to efforts to retaliate against him. Probably, David Weiss will argue and Judge Maryanne Noreika will agree that Trump’s intervention didn’t pertain to the gun investigation, but instead related to the tax and influence peddling investigation which is probably being pursued in Los Angeles right now. Probably, this is an issue Lowell would have to revisit if and when Hunter is charged in such a case. I have suspected that Weiss has delayed any action on related cases to force Lowell to try this selective prosecution claim in Delaware, where it is less relevant, leaving Hunter on the hook for three felony charges, before Lowell tries such a claim where it might work in some other venue.

But it is, nevertheless, the almost unheard of case where a defendant can point to Trump’s personal involvement.

Update: Lowell referenced something I didn’t realize. This passage from Richard Donoghue’s notes shows Trump intejecting a complaint about Hunter Biden (and tying it directly with the Mueller investigation) into his demands that DOJ get involved in overturning the vote on December 27, 2020.

Here’s how Donoghue described that passage to the January 6 Committee.

A Then he went back to Detroit. He said in Detroit they “threw the poll watchers out.” He was complaining, saying they’re not allowed to do that, it’s a violation of the law, they had violated the law all over the county.

He said, you “don’t even need to look at the illegal aliens voting – don’t need to.

It’s so obvious.”

Then he was talking about the FBI. He said, the “FBI will always say there’s nothing there. The leaders there oppose me; As,” which means special agents, “support me.” He didn’t use the term “special agents,” but he said, “the agents” or “the line guys,” something like that, “support me.” I just wrote that down as “SAs.”

Q Yeah. He’s claiming that the FBI leadership somehow is against him or isn’t taking these claims seriously because they dislike himor they oppose him?

A Correct.

Q Was that consistent with your impression of Director Wray and the FBI leadership?

A No a okay.

Then the next page, this is him continuing about the FBI. He says, “I made some bad decisions on leadership there, but I was laboring under an illegal investigation.

The special prosecutor should never have been commenced.”

Then he says he was complaining about the appointment of the special prosecutor, and he says, “You,” meaning DAG Rosen and I, “figure out what to do with Hunter Biden.” That’s up to you guys. But “people will criticize the DOJ if Hunter’s not investigated for real.”

That was sort of an aside. That’s all he said about it. It was a very brief comment. But it was off-topic, and I wrote it down.

Of course, the topic wasn’t off topic. It came in the same conversation where Trump first raised replacing Rosen with Jeffrey Clark and around the time he was talking about replacing Chris Wray with Kash Patel. That is, the Hunter Biden investigation was, along with stealing the vote, one of the things that Trump would install Clark to do for him.

Yesterday, Ukraine’s SBU charged with treason three of the people from whom Rudy Giuliani sought dirt on the Bidens to help Donald Trump get reelected. The announcement names Andrii Derkach and Kostyantyn Kulyk and describes someone that Politico reports to be Oleksandr Dubinsky.

The allegations say the threesome took $10 million from Russia’s GRU to discredit Ukraine.

“The main task of this organization was to take advantage of the tense political situation in Ukraine and discredit our state in the international arena. For this, the group was getting money from Russian military intelligence. Financing amounted to more than $10 million,” SBU said.

According to SBU, Dubinsky, guided by GRU, spread fake news about Ukraine’s military and political leadership, including claims that high-ranking Ukrainian officials were interfering in U.S. presidential elections. SBU said the Ukraine group was run by GRU deputy head Vladimir Alekseyev and his deputy Oleksiy Savin.

The propaganda described in the announcement preceded but is closely linked to Rudy’s December 5, 2019 trip to Kyiv to obtain dirt from Derkach. This Just Security timeline provides a good summary of how the trip to Kyiv — right in the middle of House impeachment proceedings — fit into Rudy’s year-long effort to find campaign dirt.

Why wasn’t Rudy ever charged?

The US Treasury Department sanctioned Derkach for election interference on September 10, 2020. Treasury added Kulyk, Dubinsky, and several other Derkach associates on January 11, 2021.

On September 26, 2022, EDNY charged Derkach with sanctions violations and money laundering. On January 23, 2023, EDNY superseded that indictment to add Derkach’s wife. On December 7, 2022, EDNY moved to seize a condo it claims the couple owns in Beverly Hills.

The Intelligence Community knew of Rudy’s trip to meet Derkach before he went to Kyiv and warned Trump, but Trump did not care.

The warnings to the White House, which have not previously been reported, led national security adviser Robert O’Brien to caution Trump in a private conversation that any information Giuliani brought back from Ukraine should be considered contaminated by Russia, one of the former officials said.

The message was, “Do what you want to do, but your friend Rudy has been worked by Russian assets in Ukraine,” this person said. Officials wanted “to protect the president from coming out and saying something stupid,” particularly since he was facing impeachment over his own efforts to strong-arm Ukraine’s president into investigating the Bidens.

But O’Brien emerged from the meeting uncertain whether he had gotten through to the president. Trump had “shrugged his shoulders” at O’Brien’s warning, the former official said, and dismissed concern about his lawyer’s activities by saying, “That’s Rudy.”

[snip]

Several senior administration officials “all had a common understanding” that Giuliani was being targeted by the Russians, said the former official who recounted O’Brien’s intervention. That group included Attorney General William P. Barr, FBI Director Christopher A. Wray and White House Counsel Pat Cipollone.

Later reporting made, then retracted a claim, that the FBI had warned Rudy before he made the trip to Kyiv.

At the time Rudy made the trip to Kyiv, he was already under investigation, by SDNY, for serving as an unregistered agent of a different Ukrainian dealing dirt, Yuri Lutsenko, an investigation that grew out of the campaign finance prosecution of Lev Parnas and Igor Fruman. SDNY obtained warrants for Rudy’s iCloud account on November 4, 2019 and, in April 2021, seized 18 devices from the former President’s attorney. That investigation concluded with no charges in August 2022. Rudy’s lawyer, Robert Costello, subsequently revealed that a number of the devices FBI seized in April 2021 were corrupted and therefore useless to the investigation, which likely is a big part of the reason Rudy was not charged by SDNY.

But Rudy was never charged for his ties to known Russian agent Derkach, either. Indeed, the Derkach indictment was written to focus on his NABULeaks site, attacking Ukrainian efforts to combat corruption; it does not mention Rudy (though it does mention that his sanctions pertained to the 2020 election).

Not only wasn’t Rudy charged, but he was permitted to share the information he obtained while in Ukraine directly with DOJ.

How that happened remains among Bill Barr’s most corrupt and complex machinations, one that deserves far more attention given the ongoing efforts to gin up a Ukraine-related impeachment against Joe Biden.

On January 3, 2020 — less than a month after Rudy met Derkach and while Trump’s first impeachment remained pending — Barr tasked Pittsburgh US Attorney Scott Brady with the “discreet” assignment of ingesting dirt from the public, primarily meaning Rudy, to “vet.”

Brady’s recent deposition before the House Judiciary Committee revealed he did little real vetting. What he did do, though, was to query prosecutors in SDNY about the ongoing investigation into Rudy and obtain “interrogatories” from prosecutors in Delaware about the ongoing investigation into Hunter Biden. He also spoke with prosecutors investigating Dmitry Firtash and Ihor Kolomoyskyi, two of three Ukrainian oligarchs from whom Rudy had also solicited dirt.

Brady also spoke with DC investigators who — according to Chuck Grassley — had just one month earlier, right in the middle of the impeachment effort directly tied to Burisma, shut down an investigation into Burisma owner Mykola Zlochevsky, the third Ukrainian oligarch from whom Rudy solicited dirt. From the DC investigators, Brady learned of a passing reference to Hunter Biden in a 2017 informant report, which led Brady to reinterview the same informant. The informant revealed that in a late 2019 phone conversation, one that almost certainly took place during impeachment, Zlochevsky claimed to have bribed Joe Biden in such a way that it would take ten years of searching to find the payoff.

In his HJC deposition, Brady admitted that Rudy did not tell him — and his team did not seek out any information — about the President’s lawyer’s efforts to solicit dirt from Zlochevsky.

Q Okay. But you never asked, for example, the House Permanent Select Committee investigators or anyone associated with that investigation to do a similar inquiry for evidence relating to Zlochevsky?

A No, I don’t believe we did.

Q Okay. And, like you said, you were not aware that this interview had taken place in 2019. Is that fair to say?

A I don’t believe I was, no.

Q Okay. And anyone on your team, as far as you know, was not aware that Mr. Zlochevsky had been interviewed at the direction of Giuliani before your assessment began?

A I don’t believe so.

In September 2020, Brady provided Richard Donoghue with a report on the results of his “vetting.” On October 23, 2020, Brady’s investigators briefed David Weiss’ investigators on the FD-1023 describing the late 2019 Zlochevsky claim of bribery. Weiss claims that aspect of his investigation remains ongoing, and Republicans have made the FD-1023 part of their impeachment inquiry into Joe Biden.

But Barr did more than provide a way for Rudy to share information obtained from a known Russian agent such that it might be used in the investigation into Joe Biden’s son and, now, an impeachment stunt targeting Joe Biden himself. He also ensured that SDNY would not be able to expand their investigation to cover Rudy’s dalliances with Derkach.

On January 17, 2020, Jeffrey Rosen issued a memo making the US Attorney in EDNY — then Richard Donoghue, but Donoghue would swap places in July 2020 with Seth DuCharme, who was at the time overseeing the Brady tasking — a gatekeeper over all Ukraine-related investigations.

Any and all new matters relating to Ukraine shall be directed exclusivelyl to EDNY for investigation and appropriate handling. Unless otherwise directed, existing matters covered by this memorandum shall remain in the Offices and components where they currently are being handled, subject to ongoing consultation with EDNY. Any widening or expansion of existing matters shall require prior consultation with and approval by my office and EDNY.

This memo had the known effect of prohibiting SDNY from following the evidence where their existing investigation into Rudy Giuliani would naturally lead — to Rudy’s relationship with known Russian agent Andrii Derkach.

Geoffrey Berman’s book revealed that Barr also prohibited the New York FBI Field Office — which supports investigations in both SDNY and EDNY — from obtaining the 302s from Brady’s January interviews with Rudy.

There were FBI reports of those meetings, called 302s, which we wanted to review. So did Sweeney. Sweeney’s team asked the agents in Pittsburgh for a copy and was refused. Sweeney called me up, livid.

“Geoff, in all my years with the FBI I have never been refused a 302,” he said. “This is a total violation of protocol.”

This would have prevented SDNY from holding Rudy accountable for any lies he told Brady and prevented EDNY from obtaining Rudy’s first-hand account about where he obtained his dirt and what he had to trade to get it. That may explain why Rudy doesn’t show up in Derkach’s indictment.

But Barr wasn’t done with his efforts to protect Rudy from any consequences for his dalliance with a known Russian agent. In June 2020, Barr fired Geoffrey Berman in an attempt to shut down the ongoing “tentacles” of the investigation into Rudy.

The reason Rudy Giuliani was not charged for soliciting election disinformation from a known Russian agent is that the Attorney General of the United States set up a system that separated the investigation of that Russian agent from the investigation of Rudy, all while channeling whatever disinformation Rudy obtained from Derkach (or Zlochevsky) into the investigation of Joe Biden’s son.

It’s that simple. Bill Barr set up a system that protected Russian disinformation and made sure it could be laundered into the Hunter Biden investigation and also protected the President’s personal lawyer from any consequences for soliciting that Russian disinformation from a known Russian agent.

That’s why Rudy Giuliani wasn’t charged.

How does this relate to the “Hunter Biden” laptop?

The system that Barr set up absolutely has to do with the FD-1023 that remains part of both the Biden impeachment effort and the Hunter Biden criminal investigation.

There’s far less evidence that Rudy’s effort has anything to do with the “Hunter Biden” laptop.

To be sure, Lev Parnas has described that in May 2019 — the month after the laptop ultimately shared with the FBI was dropped off in Wilmington — he first learned that people were shopping a laptop with dirt on Hunter Biden, though he understood it to be one stolen in 2014, not 2019.

At the same time, the BLT Team was exploring many different angles to get information on the Bidens. In June, Giuliani asked me to accompany him to a lunch in New York with Vitaly Pruss, a Russian businessman who claimed to have deep connections to Burisma, including with Hunter Biden’s business partner Devon Archer, and had recommended powerful people to Zlochevsky that he should put on the company’s board. During this meeting, Pruss shared a story with us: He said earlier that year, while doing business related to Burisma, he had taken Hunter Biden to meet Kazakhstan’s minister of foreign affairs, and that Biden had gotten substantially intoxicated with drugs and alcohol on this trip. While he was incapacitated, his laptop was compromised and copied by a representative of FSB (Russia’s secret police) and members of Zlochevsky’s team.

It’s important to note that certain aspects of Pruss’s story are verifiably true. This trip with Hunter Biden did happen, and his computer hard drives were taken and duplicated. But Pruss specified that while the contents of the laptop were personally embarrassing to Hunter Biden – pictures of him doing drugs and surrounded by girls — there was no evidence of financial crimes or any data on his laptop that suggested illegal activities of any other kind, which is the sort of proof that Giuliani desperately needed. Pruss never mentioned anything about the hard drives containing criminal information, only the embarrassing images. It was not until Giuliani began disseminating the story of Hunter Biden’s laptop that the idea of proof of financial and political crimes was introduced.

Parnas also described that he expected to obtain a hard drive from Hunter’s laptop on the trip to Vienna that got preempted by his arrest.

In the early part of October 2019, I got a call telling me to go to Vienna with Giuliani, where the former Chief Financial Officer of Burisma, Alexander Gorbunenko, would meet Giuliani and give us Hunter Biden’s hard drive and answer any questions we had.

The timing of the known laptop parallels Rudy’s efforts in chilling fashion.

The laptop ultimately shared with the FBI was first linked to Hunter Biden’s Apple account in October 2018, at the beginning of Rudy’s efforts to solicit dirt on Biden.

On a November 14, 2018 check, Hunter linked his Fox News pundit shrink to a Russian or Ukrainian-linked escort service he was frequenting at the time — likely the same escort service on which the investigation, now entering its sixth year, was first predicated. But that reference on a check memo line could as easily be explained by addiction or his efforts to cover up or write off such expenses.

Most of the materials on the laptop got packaged up in January and February 2019 while Hunter was again receiving treatment from his Fox News pundit shrink. At the time, Hunter may have had limited access to the Internet, much less the ability to package all that up. The laptop ultimately shared with the FBI was packaged up at a time when Hunter also had a different, older laptop in his possession that was ultimately left at the guest house of the Fox News pundit shrink.

The laptop ultimately shared with the FBI was delivered to the Delaware repair shop — by someone who had access to Hunter Biden’s phone and credit card — in April 2019.

Depending on whether you believe John Paul Mac Isaac or the FBI, JPMI’s father first reached out to the FBI about the laptop hours before or seven days after Parnas was arrested, either October 9 or October 16, 2019. The FBI ultimately obtained the laptop on December 9, 2019, days before the House voted to impeach Donald Trump, and the same month when (per Chuck Grassley) Barr’s DOJ shut down an investigation into Zlochevsky, the guy whose former CFO had been offering Rudy such a hard drive two months earlier. If you can believe JPMI (and you probably can’t), the FBI tried to boot up the laptop before obtaining any known warrant for it.

The day after the IRS obtained a warrant for the laptop on December 13, 2019, one of Barr’s aides texted him on his private phone to let him know they were sending him a laptop.

And then months after Barr jerry-rigged a system to ingest dirt from Russian spies into the investigation of Hunter Biden while protecting Rudy, in August 2020, JPMI shared a hard drive of the materials from that very same laptop with Rudy Giuliani, the same guy who had solicited dirt from Burisma in October 2019 and from a Russian agent back in December 2019.

After the NYPost first revealed the laptop, Rudy dismissed concerns that it may have come from Russian spies and even called obtaining it an “extension” of his earlier efforts to obtain such dirt, including (if you can believe Parnas) a laptop from Zlochevsky’s former CFO.

But that’s some Deep State talk, he added. “The chance that Derkach is a Russian spy is no better than 50/50.”

[snip]

Asked, for instance, whether he was concerned if the materials he obtained might in some way be linked to the hacking of Burisma late last year—an act attributed to Russian intelligence—Giuliani said: “Wouldn’t matter. What’s the difference?”

[snip]

Giuliani said he viewed his latest leak to the New York Post as an extension of his years-long efforts to work with Ukrainians to dig up dirt on the Bidens.

According to Scott Brady, Rudy never told him he had obtained the laptop, even though Rudy got it before Brady submitted his report to Donoghue in September 2020.

There are a great deal of remarkable coincidences in the parallel timelines of Barr’s complex system to obtain dirt on Hunter Biden while protecting Rudy and the timeline of the laptop first shared with the FBI and then shared with Rudy. But thus far that’s all they are: coincidences.

There’s not even proof — at least not publicly — that anyone besides Hunter Biden packaged up the laptop that ultimately got shared with the FBI. To the extent someone did, there’s more evidence implicating American rat-fuckers than Russian ones.

There are a great deal of questions about how the laptop got packaged up and the legality of JPMI’s sharing of it with anyone but the FBI. But for now, those are different questions than the questions about Rudy’s efforts to solicit dirt from a Russian agent.

Did John Durham meet these same Russian agents on behalf of Barr?

There’s one more question these charges in Ukraine raise, however: Whether John Durham met with one or several of these men Ukraine now accuses of working for Russian spies.

On the day that Treasury sanctioned Kulyk and Dubinsky, January 11, 2021, Durham sent an aide some group chats he had participated in with Barr’s top aides in September 2019, just as the impeachment panic started.

Those group chats, which Durham referred back to on the day Derkach’s associates were sanctioned, seem to have arisen out of a panic Barr had on the morning of September 24, 2019, the day the White House would release the Volodymyr Zelenskyy transcript showing that Trump asked the Ukrainian President to deal dirt on the Bidens to both his Attorney General and personal lawyer.

“Call me ASAP,” the Attorney General texted Durham that morning, followed almost twelve hours later by Durham asking to speak, possibly for a second time.

The next day, September 25, DOJ issued a statement revealing that Durham had received information from several Ukrainians who weren’t part of government.

A Department of Justice team led by U.S. Attorney John Durham is separately exploring the extent to which a number of countries, including Ukraine, played a role in the counterintelligence investigation directed at the Trump campaign during the 2016 election,” DOJ spokeswoman Kerri Kupec said Wednesday. “While the Attorney General has yet to contact Ukraine in connection with this investigation, certain Ukrainians who are not members of the government have volunteered information to Mr. Durham, which he is evaluating.”

That’s what led up to the group chats Durham would share months later.

At 3:44 PM on September 26, the day the White House released the whistleblower complaint, someone from Durham’s team — probably Durham himself — participated in a chat with 8 people.

Less than an hour later, a bunch of people — including Will Levi, Seth DuCharme (who would be in charge of Scott Brady’s “vetting” project and then take over any investigation in EDNY), and “John” — convened in a lobby bar together, waiting for Barr to arrive.

The following day, when Kurt Volker resigned, there was another group chat, the second one Durham would share months later.

Barr was still focused on CYA regarding his own involvement. In advance of Lindsey Graham going on the Sunday shows that weekend, Barr made sure to get Lindsey his statement claiming not to have spoken to the Ukrainians personally.

 

Later on October 2, Kerri Kupec apologized to Barr that “Sadie” hadn’t gotten editors to change a particular story, probably a reference to this WSJ story, which discusses Barr’s request that Trump give introductions to some foreign leaders.

On October 30, the day after the Democrats released the impeachment resolution, Kupec sent Barr the statement he had made about Ukraine back in September.

A minute later Barr sent that statement to Will Levi, with no further comment.

There’s far more about Barr’s panic as impeachment unrolled in 2019, as I laid out here.

The panic likely includes Eric Herschmann, who was then in private practice but who would join Trump’s impeachment defense and then ultimately serve as a babysitter for Trump in the White House. While at the White House, Hershmann pitched the “laptop” to the WSJ before Rudy discredited it.

But one thing is clear: In the wake of the disclosure that Trump asked Zelenskyy to work with Barr in addition to Rudy, Barr attempted to pawn off any contacts with Ukraine onto Durham — an effort that appears to have been discussed in both group chats and a face-to-face meeting in a hotel bar.

And then, over three months later, on the day that Rudy’s sources were sanctioned, two of whom were just charged with treason along with Derkach, Durham revisited those group chats.

That may explain why Barr worked so hard to ensure that Rudy never faced consequences for soliciting disinformation from a known Russian agent.

Update: Fixed timing of Parnas arrest per zscore.