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Hunter Biden[‘s “Laptop”] Goes to SCOTUS: How Judge Doughty Helped China and Iran Attack the US

October 26, 2023/17 Comments/in 2020 Presidential Election, Cybersecurity, emptywheel, Hunter Biden /by emptywheel

Hunter Biden is going to SCOTUS!!!

Or rather, the “Hunter Biden” “laptop” is.

Last Friday, SCOTUS granted a stay and certiori for DOJ’s appeal of the Missouri v. Biden case, a right wing lawsuit claiming that the government has forced social media companies to “censor” right wingers (Terry Doughty opinion; 5th Circuit Opinion). While much of the lawsuit focuses on efforts, including those starting under a guy named Trump, to help social media companies limit COVID-related disinformation (Surgeon General Vivek Murthy is the lead appellant), a key part of the claim that the government has coerced social media companies pertains to the FBI.

The Fifth Circuit opinion upholding parts of Judge Doughty’s opinion admitted that, “we cannot say that the FBI’s messages were plainly threatening in tone or manner” but suggested nevertheless that they “’might be inherently coercive if sent by . . . [a] law enforcement officer’” anyway.

Because the people pushing this suit, including now-Missouri Senator Eric Schmitt and now-Louisiana Governor-elect Jeff Landry, are nuts, the “Hunter Biden” “laptop” has come to embody that coercion. The Fifth Circuit adopted that focus (and several inaccurate claims about it) as well. And, in turn, Sam Alito included that focus, citing the Fifth Circuit, in his snotty dissent.

This case began when two States, Missouri and Louisiana, and various private parties filed suit alleging that popular social media companies had either blocked their use of the companies’ platforms or had downgraded their posts on a host of controversial subjects, including “the COVID–19 lab leak theory, pandemic lockdowns, vaccine side effects, election fraud, and the Hunter Biden laptop story.” Id., at *1. According to the plaintiffs, Federal Government officials “were the ones pulling the strings,” that is, these officials “‘coerced, threatened, and pressured [the] social-media platforms to censor [them].’”

This argument, as currently framed, is about whether Judge Doughty properly enjoined the FBI from certain kinds of contacts with social media companies because of the “Hunter Biden” “laptop.”

The Injunction

The injunction on the FBI, imposed largely because of right wing beliefs about the “Hunter Biden” “laptop,” may also explain why three Republican justices granted cert. The prohibition on certain kind of FBI contacts with social media companies may be among the most urgent injury the US government faces under the injunction. That’s partly because Judge Doughty specifically enjoined Elvis Chan, the Assistant Special Agent in Charge of cybersecurity investigations out of San Francisco, and so a key person involved in preventing and responding to cyberattacks targeting or using the infrastructure of social media companies located in Silicon Valley.

Alito’s dissent claims that DOJ only cared about Joe Biden’s bully pulpit, which is not included in the injunction. But in its appeal, DOJ noted that, as written, the injunction might lead the FBI to hesitate before alerting social media companies to potentially harmful content.

And given the court’s suggestion that any request from a law-enforcement agency is inherently coercive, see id. at 232a233a, the FBI would likewise need to tread carefully in its interactions with social-media companies, potentially eschewing communications that protect national security, public safety, or the security of federal elections. For example, particularly in the early stages of an investigation, law-enforcement officials may be uncertain whether a social-media post involves unprotected criminal activity (such as a true threat). But the injunction leaves them guessing what quantum of certainty they must possess before they can inform social-media companies about the post, potentially leading to disastrous delays.

To be sure, Judge Doughty’s injunction included a bunch of carve outs that, right wingers like Alito claim, ensures their efforts to force Twitter to publish Hunter Biden’s dick pics don’t make the country less safe. The carve outs are:

(1) informing social-media companies of postings involving criminal activity or criminal conspiracies;

(2) contacting and/or notifying social-media companies of national security threats, extortion, or other threats posted on its platform;

(3) contacting and/or notifying social-media companies about criminal efforts to suppress voting, to provide illegal campaign contributions, of cyber-attacks against election infrastructure, or foreign attempts to influence elections;

(4) informing social-media companies of threats that threaten the public safety or security of the United States;

(5) exercising permissible public government speech promoting government policies or views on matters of public concern;

(6) informing social-media companies of postings intending to mislead voters about voting requirements and procedures;

(7) informing or communicating with social-media companies in an effort to detect, prevent, or mitigate malicious cyber activity;

(8) communicating with social-media companies about deleting, removing, suppressing, or reducing posts on social-media platforms that are not protected free speech by the Free Speech Clause in the First Amendment to the United States Constitution. [my emphasis]

The carve outs — to the extent that they apply to the FBI, as most by definition do — actually demonstrate the problem with this ruling (and may explain the stakes of the focus on the “Hunter Biden” “laptop”).

Five kinds of interaction with social media

To see why, it’s useful to understand what the plaintiffs actually complained about (which largely tracks Matt Taibbi’s misrepresentations in his Twitter Files propaganda), which are shown in the unshaded rows in the table below.

CISA

First, there’s the Cybersecurity & Infrastructure Security Agency. It was set up within DHS specifically to provide an alternative to the FBI, a non-law enforcement agency that could help protect critical infrastructure, including elections, from cyber as well as brick-and-mortar threats. In addition to its efforts to combat disinformation about elections, for example, CISA has also helped some states harden their election systems against hacking attempts, run active shooter drills with election officials, and helped state election officials recover after natural disasters.

As part of its election role, though, CISA aspired to provide authoritative information to election partners (including social media companies) about both intentional and unintentional incorrect information about elections. The example former CISA Director Chris Krebs provided to the January 6 Committee was an Iranian campaign, active in the days after the Hunter Biden story, to pose as members of the Proud Boys and intimidate people of color not to vote. But in the same way that CISA would help protect pipelines against international or domestic attackers, CISA would track and provide official debunking to incorrect information from both international and domestic sources. Republicans especially hate CISA because Krebs affirmed that the 2020 election had been conducted securely (after which Trump summarily fired him by Tweet). But they also object to the “switchboarding” role that CISA has served, getting reports on incorrect information (which of course could include domestic actors) from election officials, along with corrections, and sharing them with social media companies.

At first, the Fifth Circuit reversed Doughty’s injunction on CISA, but then arbitrarily added them back in, a flaky move that may have contributed to SCOTUS’ decision to review the Fifth Circuit’s actions.

Election Command Post

Then there’s the intervention that might be the most controversial, but which in this litigation got replaced by the right wing obsession with the “Hunter Biden” “laptop.” In the days immediately preceding the 2020 election, FBI agents passed on social media identifiers that misstated the time, place, or means of voting. Per the testimony of Agent Chan, these had been vetted by Public Integrity lawyers at Bill Barr’s DOJ and deemed to be “criminal in nature.” This is the primary instance where the FBI shared information about US persons that might be taken down. It’s also a use case that Matt Taibbi wildly misrepresented, both as to the genesis of the data and the potential existence of ongoing criminal investigations into the activity. And it’s one instance where, under Doughty’s carve out #6, you could see the FBI hesitating before sharing: because while the identifiers in question did mislead about “voting requirements and procedures,” the FBI would’t be able to establish intent without more work (including more intrusive legal process on the accounts). So there’d be no way for the FBI to flag these accounts until it had done more work to determine intent, after which the damage would have been done. This should be where discussions at SCOTUS focus. But they’re not. Instead, Alito is talking about the “Hunter Biden” “laptop.”

FITF: Strategic and Tactical

Finally, there is the FBI’s Foreign Influence Task Force, now led by Laura Dehmlow (the other FBI official specifically enjoined; in 2020 she was the Unit Chief of the Chinese group at FITF). FITF aims to combat malign foreign influence operations, defined as efforts by foreign actors, hiding their foreign identity, to target those inside the US. While such efforts can target elections, they can also be part of traditional espionage and hacking efforts or attempts by authoritarian governments to crack down on US-based dissidents.

FITF interacts (or did, before the injunction) with social media companies in two ways. They hold general meetings — often attended by Chan and Dehmlow — to discuss general tips and techniques about foreign actors, what they called “strategic” information sharing. And they hold one-on-one meetings with social media platforms to discuss specific activity on their platforms — what the FBI calls “tactical.” The leading source of such tactical information, per Dehmlow’s testimony to the House Judiciary Committee, is “another government agency,” often classified information downgraded to share with partners, though Chan described that FBI agents involved in specific counterintelligence or criminal investigations might also share information.

We know that the plaintiffs in this lawsuit misrepresented this sharing. In addition to general descriptions of this information sharing from depositions, we have rather specific evidence about the subject of these FITF briefings in 2020. LinkedIn emails that Doughty claims to rely on, for example, show that the August 2020 agenda for the FITF meeting covered the Internet Research Agency — the Internet trolls that Republicans like to claim were the only way Russia has interfered in elections — but also described a Russian software and influence campaign targeting Ukraine. It shows a specific briefing on APT31, which Mandiant describes as, “a China-nexus cyber espionage actor focused on obtaining information that can provide the Chinese government and state-owned enterprises with political, economic, and military advantages.” That briefing also covered Iran, Venezuela, and North Korea.

While the September 2020 briefing reviewed a fake right wing news site run by IRA (the FBI had just targeted a similar left wing fake news site as well), it discussed three things pertaining to Iran: some influence campaign (as noted, in October CISA would share details of a very sophisticated campaign in 2020 hijacking Proud Boy identities to discourage voters of color), a recent indictment of hackers with ties to IRGC who had targeted (among other things) an American satellite company, and a toolset of some Iranian hackers.

The agenda for the October meeting was not as detailed as the August and. September ones, but a follow-up shows that one item pertained to a Global (meaning something other than Chinese or Russian) campaign targeting Trump, Republicans, and Biden.

This is the kind of information sharing that Judge Doughty’s injunction threatens to end: efforts (among other things) to prevent Iranian and Chinese hacking of US technology companies.

While the subjects of FITF briefing might include Americans — such as the freelancers paid by the IRA’s fake news site or the Trump associates, like Roger Stone and Hannity, who engaged with fake IRA Twitter accounts — they are targeted at selectors that the FBI has “high confidence” are foreigners pretending to be American.

Criminal Process

Thanks to Matt Taibbi’s propaganda, right wingers have completely ignored the role of criminal process in all this, even though Agent Chan repeatedly described in his deposition that, “The majority of my role is dealing with cyber investigations.” There is clear overlap between the things right wingers complain about and known criminal investigations. As I have noted, for example, right in the middle of the 2020 pre-election period, DOJ rolled out a GRU indictment which included the 2017 hack-and-leak operation targeting Emmanuel Macron, in which key members of the far right, including Jack Posobiec, were involved.

Chan described several times that his team not only investigated part of the 2016 hack, but still had an active investigation into those actors. That’s important not only because he would have firsthand knowledge of the kinds of attribution social media companies (and Google and Microsoft) had in 2016, but for another reason: On October 19, 2020, DOJ indicted a bunch of GRU hackers, including one charged in the 2016 hack-and-leak campaign, for a variety of additional hacks, including the hack-and-leak targeting Emmanuel Macron. The Macron campaign, specifically, included both Google and Twitter components. So in the very same weeks when — right wingers complain — Elvis Chan was in close contact with Twitter about the ongoing election, he or his subordinates were likely working with prosecutors in Pittsburgh on an indictment implicating both Google and Twitter.

Emmanuel Macron is not mentioned in the Chan deposition.

The investigation into Douglass Mackey, for intentional disinformation targeting Blacks and Latinos regarding the means of voting, would have been active in this period as well. Those disinformation efforts were substantially orchestrated in Twitter DM threads.

While Agent Chan likely had no involvement in the Mackey case, he has investigated GRU for years, so likely would have been aware of the investigative steps leading up to the 2020 indictment. The press release for that indictment specifically commended the cooperation of Google, Facebook, and Twitter in the investigation.

In other words, not only did FBI provide notice of disinformation from US persons pertaining to content vetted by DOJ attorneys as potential crimes, but some of the contacts FBI had with Twitter in the period would involve far right wing involvement with actual crimes.

Rudy Giuliani and Steve Bannon and FITF

The right wing has focused on FITF rather than other aspects of their complaint because, at an FITF briefing with Twitter shortly after the NYPost story on the “Hunter Biden” “laptop,” someone at Twitter asked about it and an FBI person present said, “the laptop is real,” and then, in a briefing with Facebook, someone asked about it and Dehmlow responded “no comment.” Based on that exchange (and three erroneous details), Judge Doughty finds great fault with the FBI.

The FBI’s failure to alert social-media companies that the Hunter Biden laptop story was real, and not mere Russian disinformation, is particularly troubling. The FBI had the laptop in their possession since December 2019 and had warned social-media companies to look out for a “hack and dump” operation by the Russians prior to the 2020 election. Even after Facebook specifically asked whether the Hunter Biden laptop story was Russian disinformation, Dehmlow of the FBI refused to comment, resulting in the social-media companies’suppression of the story. As a result, millions of U.S. citizens did not hear the story prior to the November 3, 2020 election. Additionally, the FBI was included in Industry meetings and bilateral meetings, received and forwarded alleged misinformation to social-media companies, and actually mislead [sic] social-media companies in regard to the Hunter Biden laptop story. The Court finds this evidence demonstrative of significant encouragement by the FBI Defendants.

On top of the three errors Doughty makes (which I’ll get to), there are several problems here. First, confirming that the FBI knew the laptop was real, as the FBI did, was a privacy violation! Hunter Biden is the one who has complaint for the disclosure of an ongoing criminal investigation (which is, according to Agent Chan, why Dehmlow responded no comment to the Facebook question), not the right wing.

More importantly, based on what is publicly known, Hunter Biden would normally not be included FITF briefing. He’s a US citizen. While several of his international relationships (with Burisma, with Romania, and with CEFC) were being investigated as potential FARA violations in 2020 and after, with the important exception of a slight delay in Burisma’s announcement of his appointment in 2014, Hunter’s ties to such entities were not covert. Nor is there any allegation he disseminated false information about those entities online, especially on Facebook and Twitter. CEFC might have been the subject of FITF focus, but more for its covert role in recruiting James Woolsey.

One person who might be included in FITF briefings in summer 2020, though, is Guo Wengui. Unlike Hunter Biden, he’s not a US citizen; he is (or was, before his indictment in March) present in the US as an asylum seeker. And as public reports from July 2020 described, the source of funding for his propaganda efforts was under FBI investigation, precisely the kind of covert relationship of interest to FITF. That reporting suggested that Guo might secretly be funded by the Chinese state to track Chinese dissidents, something Dehmlow has explicitly included within FITF’s mandate. In a filing in the current investigation against Guo, SDNY has pointed to evidence obtained in a more recent search of Guo’s property pertaining to a 2018 meeting between the UAE and China. In other words, in 2020, the FBI was actively investigating whether China and/or the Emirates funded propaganda put out by Guo, with Steve Bannon’s involvement, precisely the kind of secret foreign backing of influence campaigns that FITF focuses on. So while Hunter Biden shouldn’t have come up as a subject of FITF briefing, Bannon’s partnership with Guo might have.

We don’t know whether that happened. But one person whose propaganda campaign definitely was a subject of FITF briefing is Andrii Derkach. Between the August and September face-to-face meetings, on September 10, 2020, a Unit Chief (presumably the Russian Unit Chief) at FITF sent a link to LinkedIn noting Treasury’s sanctioning of Derkach, explaining, “just want to let you know about someone we have discussed in previous briefings.” Obviously, the link was public, as was a WaPo story that same day tying Derkach to Rudy’s efforts to push criminal investigations related to Joe Biden. But the FBI sent the link, referencing back to prior discussions, to flag it for LinkedIn.

In other words, the far right is complaining that the FBI didn’t offer up details about an ongoing criminal investigation into Hunter Biden, but they’ve never complained that the FBI didn’t offer up details about a national security investigation into Steve Bannon’s propaganda partner (one who, subsequent reporting has confirmed, played a key role in altering and disseminating Hunter Biden dick pics). Nor have they complained that FBI didn’t offer up details about the counterintelligence investigation into the alleged Russian agent conducting an influence operation targeting Rudy at this meeting. Rudy and Bannon were named in the NYPost story in question, yet the right wing isn’t wailing that the FBI didn’t describe ongoing FBI investigations, investigations directly relevant to the mission of FITF, in the briefing after its release.

Doughty’s Three Errors

Which brings us, finally, to three errors that Doughty makes — at least one of which is already before SCOTUS — in sustaining his complaint that the FBI must be enjoined because they didn’t offer up more information about a criminal investigation into Hunter Biden.

First, in his opinion written in July, Doughty points to Yoel Roth’s 2020 FEC testimony, which is where Roth first explained that Twitter took down the initial NYPost link under its hack-and-leak policy.

(10) Yoel Roth (“Roth”), the then-Head of Site Integrity at Twitter, provided a formal declaration on December 17, 2020, to the Federal Election Commission containing a contemporaneous account of the “hack-leak-operations” at the meetings between the FBI, other natural-security agencies, and social-media platforms.405 Roth’s declaration stated:

Since 2018, I have had regular meetings with the Office of the Director of National Intelligence, the Department of Homeland Security, the FBI, and industry peers regarding election security. During these weekly meetings, the federal law enforcement agencies communicated that they expected “hack-and-leak” operations by state actors might occur during the period shortly before the 2020 presidential election, likely in October. I was told in these meetings that the intelligence community expected that individuals associated with political campaigns would be subject to hacking attacks and that material obtained through those hacking attacks would likely be disseminated over social-media platforms, including Twitter. These expectations of hack-and-leak operations were discussed through 2020. I also learned in these meetings that there were rumors that a hack-and-leak operation would involve Hunter Biden. 406 [emphasis original]

In his testimony, Agent Chan disputed the notion that that the FBI suggested a hack-and-leak would involve Hunter Biden, because Joe Biden’s son had not come up in meetings before the NYPost story he attended.

[I]n my estimation, we never discussed Hunter Biden specifically with Twitter. And so the way I read that is that there are hack-and-leak operations, and then at the time — at the time I believe he flagged one of the potential current events that were happening ahead of the elections.

That’s consistent with what Roth has said since, in House Oversight Testimony, clarifying that he heard the rumors about a hack-and-leak involving Hunter Biden from other social media companies, not the FBI.

I think it actually should have been two separate sentences. It is true that in meetings between industry and law enforcement, law enforcement discussed the possibility of a hack and leak campaign in the lead up to the election. And in one of those meetings, it was discussed, I believe, by another company that there was a possibility that that hack and leak could relate to Hunter Biden and Burisma. I don’t believe that perspective was shared by law enforcement. They didn’t endorse it. They didn’t provide that information in that.

But Doughty nevertheless relies on the outdated misinterpretation to blame the FBI for Twitter’s conclusions.

As noted, there’s no mention of one reason why this conclusion would be sound — the public reporting on Andrii Derkach, which was part of FITF briefing. Nor is there mention of the GRU hack of Burisma reported by a Silicon Valley InfoSec company earlier that year.

This lawsuit has thrived even after Agent Chan debunked one conspiracy theory about the social media’s throttling of the NYPost story, the false assumption that the FBI affirmatively told Twitter and Facebook that a hack-and-leak would involve Hunter Biden.

It has done so, in part, because of a truly bizarre — and erroneous — complaint from Doughty: That Chan and others at the FBI and CISA warned social media companies of hack-and-leak campaigns, like the GRU one of Macron indicted just days after the NYPost Hunter Biden story October 2020. Social media companies took the “Hunter Biden” “laptop” story down, the logic goes, because the FBI coerced them to change their moderation policies to prohibit publication of hacked materials.

In Doughty’s version, the social media companies responded to this pressure in 2020, just in time to use it to justify taking down the NYPost story.

Social-media platforms updated their policies in 2020 to provide that posting “hacked materials” would violate their policies. According to Chan, the impetus for these changes was the repeated concern about a 2016-style “hack-and-leak” operation.402 Although Chan denies that the FBI urged the social-media platforms to change their policies on hacked material, Chan did admit that the FBI repeatedly asked the social-media companies whether they had changed their policies with regard to hacked materials403 because the FBI wanted to know what the companies would do if they received such materials.404 [my emphasis]

In the Fifth Circuit’s telling, that change seems to date to 2022, two years after the “Hunter Biden” “laptop” story.

For example, right before the 2022 congressional election, the FBI tipped the platforms off to “hack and dump” operations from “statesponsored actors” that would spread misinformation through their sites. In another instance, they alerted the platforms to the activities and locations of “Russian troll farms.” The FBI apparently acquired this information from ongoing investigations.

Per their operations, the FBI monitored the platforms’ moderation policies, and asked for detailed assessments during their regular meetings. The platforms apparently changed their moderation policies in response to the FBI’s debriefs. For example, some platforms changed their “terms of service” to be able to tackle content that was tied to hacking operations. [my emphasis]

In fact, the Fifth Circuit builds most of its claim of FBI coercion on this change in terms of service (again, seemingly in 2022), which it ties to content take downs, the sole potential hack-and-leak example of which is that first article on the “Hunter Biden” “laptop.”

Fourth, the platforms clearly perceived the FBI’s messages as threats. For example, right before the 2022 congressional election, the FBI warned the platforms of “hack and dump” operations from “state-sponsored actors” that would spread misinformation through their sites. In doing so, the FBI officials leaned into their inherent authority. So, the platforms reacted as expected—by taking down content, including posts and accounts that originated from the United States, in direct compliance with the request. Considering the above, we conclude that the FBI coerced the platforms into moderating content. But, the FBI’s endeavors did not stop there.

We also find that the FBI likely significantly encouraged the platforms to moderate content by entangling itself in the platforms’ decision-making processes. Blum, 457 U.S. at 1008. For example, several platforms “adjusted” their moderation policies to capture “hack-and-leak” content after the FBI asked them to do so (and followed up on that request). Consequently, when the platforms subsequently moderated content that violated their newly modified terms of service (e.g., the results of hack-and-leaks), they did not do so via independent standards.

It’s a crazy enough argument on its face (especially the Fifth Circuit’s suggestion that a change in 2022 led to the throttling of a 2020 story). But it also gets the timing — and therefore the cause-and-effect — wrong. The actual change to Twitter’s policy, for example, was in March 2019, based off discussions before that. Either FBI planned their malicious coercion long before they got the laptop from JPMI, or the claim is utterly nonsensical.

DOJ called out this error in its SCOTUS response.

Similarly, respondents’ claim that the platforms “updated their policies in 2020” with respect to “‘hacked materials,’” such as “‘the laptop story,’” “after the FBI’s ‘impetus,’” Opp. 17, 19 (brackets and citations omitted), cannot be squared with the platforms’ own testimony that their actions with respect to the “laptop story” were based on policies adopted in 2018, C.A. ROA 18,498-18,499, 18,505.

In other words, the main claim that the Fifth Circuit made about coercion — which, again, was ultimately a claim about coercing social media companies to do something that prevented one story from going viral — got the timing and therefore any possible causality wrong.

Finally, there’s the source of Doughty’s claim of animus on the part of the FBI, his claim that they deliberately withheld information that (he imagines) would have led Facebook and Twitter to act differently.

The mention of “hack-and-leak” operations involving Hunter Biden is significant because the FBI previously received Hunter Biden’s laptop on December 9, 2019, and knew that the later-released story about Hunter Biden’s laptop was not Russian disinformation. 408

Doughty bases this claim on a November 2, 2022 Miranda Devine (!!!) column. The column is, predictably, riddled with debunked propaganda, including the shoddy Intercept piece that kicked off this campaign, the lawsuit itself (making it a self-licking ice cream cone), and a preview of John Paul Mac Isaac’s then unpublished book (though not the line where an FBI agent told JPMI’s father, “You may be in possession of something you don’t own”).

The paragraph from which Doughty bases his claim that FBI “knew that the later-released story about Hunter Biden’s laptop was not Russian disinformation” appears to be this one:

We know the FBI at the time was spying on Rudy Giuliani’s online cloud with a covert surveillance warrant. Therefore, it had access to his emails in August 2020 from computer store whistleblower John Paul Mac Isaac and to my text messages discussing when The Post would publish the story. It sure looks as if the FBI deliberately pre-censored a legitimate story for a political aim.

Of course, the paragraph doesn’t mention Russian disinformation, nor does JPMI’s role in the process rule out Russian disinformation (a point I laid out here).

Plus, the paragraph is factually wrong. Per failed redactions in a Lev Parnas filing and other filings in that Special Master docket, FBI obtained a warrant Rudy’s iCloud account and emails on November 4, 2019, before John Paul Mac Isaac was subpoenaed by the FBI, and nine months before JPMI reached out to Rudy. Rudy’s phones were seized with an April 21, 2021 warrant, long after the controversy in question (though at least several of those phones were corrupted). While it’s certainly likely that DOJ obtained a second warrant for Rudy’s emails after that, it would not have happened in 2020. In other words, there is no known legal process that obtained Rudy’s emails that would have included JPMI’s emails to him before the NYPost story came out.

Plus, JPMI’s emails to Rudy would only be in the scope of the known warrant against Rudy … if the laptop were part of a Ukranian effort to deal dirt to cause legal problems for Joe Biden and his family.

Devine may base her claim, at least in part, elsewhere. Her column also alludes to the disgruntled FBI agents who attacked Tim Thibault.

This year, whistleblowers have come forward to finger various FBI employees engaged in the cover-up. Timothy Thibault, the recently retired assistant special agent in charge of the FBI’s Washington, DC, field office, was the agency point man to manage Tony Bobulinski, Hunter’s business partner who went to the FBI with evidence of the Biden influence-peddling operation. Thibault allegedly ordered the investigation closed and has refused to cooperate with GOP members of the House Judiciary Committee.

This, too, is false. Thibault’s House Judiciary Committee interview reveals that his only involvement with the Tony Bobulinski interview was to address Bobulinski’s request to turn over just some of the material on some of his devices.

But Devine’s reliance on such disgruntled agents is interesting for another reason: because they are likely disgruntled at least partly because of warnings against the involvement of Steve Bannon associate Peter Schweizer in the Hunter Biden investigation. The disgruntled agents falsely claimed, elsewhere, that Thibault, on his own, shut down Schweizer as a source. Yet according to Thibault’s testimony, he did so only after two warnings. First, the lead FBI agent on the Hunter investigative team told Thibault that getting contents of the laptop from Schweizer, which they had already gotten, “could cause problems when you get to prosecution … and [] open doors for defense attorneys.” And shortly thereafter — so temporally in the same time period as the first NYPost story — FITF raised concerns about the Bannon associate. A week after the NYPost story, around October 21, FITF provided Thibault a classified briefing (from which they excluded the line FBI agents, in part because the daughter of one was posting related content on Daily Caller). That briefing described more context about FITF’s concerns.

In spite of all the obvious problems with Devine’s propaganda, it formed a key part of Doughty’s claim that FBI coercion, rather than an independent series of decisions about hosting potentially stolen content, resulted in the throttling of the first NYPost story.

And based on that shoddy case — based on the feverish conspiracy theories about the “Hunter Biden” “laptop” sustained by Eric Schmitt and Jeff Landry and Miranda Devine — Judge Doughty made it significantly riskier for Agent Chan and others to work with social media companies to do things like prevent Iranian hacks of US satellite companies.

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Like Taylor Taranto, Trump Tries to Excuse Threats by Invoking the First Amendment

October 26, 2023/115 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

The government responded to Trump’s motion to stay Judge Tanya Chutkan’s gag order.

As many people note, it cites the new threats Trump has made — against Judge Arthur Engoron’s clerk (for which the judge fined Trump $10,000 yesterday), against Mark Meadows — since Chutkan temporarily stayed her own order. DOJ used those examples to show that as soon as Chutkan stayed her own gag, Trump resumed his normal incitement.

I find two footnotes raising things that happened months ago more telling. First, a footnote describing the Trump supporter charged with making death threats against Judge Chutkan herself, along with Sheila Jackson Lee, presented as yet another example of how Trump’s attacks lead to credible threats.

Such risks are far from speculative here, the Court found, given uncontradicted facts submitted by the Government showing that when the defendant “has singled out certain people in public statements in the past,” it has “led to them being threatened and harassed.” ECF No. 103 at 66-67.1

1 Shortly after being assigned to the case, the Court itself received a racist death threat explicitly tied to the Court’s role in presiding over the defendant’s case. See United States v. Shry, No. 4:23-cr-413, ECF No. 1 at 3 (Criminal Complaint) (S.D. Tex. Aug. 11, 2023) (caller stating, among other things, “‘If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly, b***h. . . . You will be targeted personally, publicly, your family, all of it.’”). This incident, like many of the others the Government cited, was widely publicized and surely well known to the defendant.

And then, a footnote describing how Jan6er Taylor Taranto, a Navy veteran with long-standing mental health issues, invoked the First Amendment after he responded to Trump’s publication of Barack Obama’s DC address by stalking the former President’s Kalorama neighborhood in a van with (locked) weapons.

7 The Government’s submissions, while extensive, did not purport to be a comprehensive account of every occasion when the defendant’s public targeting of perceived adversaries has resulted in threats, harassment, or intimidation. The public record is replete with other examples. See, e.g., United States v. Taranto, No. 1:23-cr-229, ECF No. 27 at 4-6 (D.D.C. Sep. 12, 2023) (affirming detention order for Taranto and explaining that, after “‘former President Trump posted what he claimed was the address of Former President Barack Obama’ on Truth Social,” Taranto— who had previously entered the Capitol on January 6, 2021—reposted the address, along with a separate post stating, “‘See you in hell, Podesta’s and Obama’s’” [sic], and then proceeded, heavily armed, to the area the defendant had identified as President Obama’s address, while livestreaming himself talking about “getting a ‘shot’ and an ‘angle,’” adding, “‘See, First Amendment, just say First Amendment, free speech’”) (quoting Taranto, ECF No. 20).

Here’s more of the Taranto detention memo from which DOJ cited.

Taranto parked his van on the street and began walking around the neighborhood, continuing to film. Taranto made several references to “the Podestas” and stated several times that he was trying to get an interview. Taranto’s continued narration made it clear that he intended to access or enter the private residences of his subjects. For example, Taranto panned the camera to show several sewer grates on the street – calling them “entrance points,” and stating that the grates were an “entrance” to reach “them.” Throughout the video he also stated,

“So if you go down there, there’s obviously tunnels down there. I don’t know how close they’ll get you in terms of access;”

“We’re gonna find a way to the tunnels, underneath their houses;” and,

“We’re looking for tunnel access so we can get the interview, in case they try to weasel their way out. No in or out now! See, First Amendment, just say First Amendment, free speech. Free, it’s free.”

Throughout the video, Taranto repeatedly attempted to couch his actions in terms of “First Amendment” or free speech, as if he believed that simply saying the words, “First Amendment” absolved him from any trespass. When initially approached by Secret Service, Taranto stated, “Hello, just trying to get an angle, for First Amendment, free speech. Thanks. That’s Secret Service, she’s alright.” He also said, “See how it works? Just say, ‘First Amendment.’” Taranto made additional concerning statements during the video including the following statements about getting a “shot”:

“Gotta get the shot, stop at nothing to get the shot. This is where other people come to get the shot;”

“We’re gonna see what we can get, as a shot. If I were them, I’d be watching this, watching my every move;” and,

“This is where everyone goes to get the shot. It’s just me today though. This is an easy way around. Yeah, they can’t stop me from walking through here. Just don’t step foot on the street.”

Regarding getting an “angle,” Taranto states several times, “Let’s see what angles we can get,” and, “Just trying to get an angle, for First Amendment, free speech.” Additional concerning statements included:

“I don’t have any ID, so in case I get detained or something, they’re just going to have to use their cellphone to figure out who I am.”

“So yeah, more than likely, these guys also all hang for treason. See how I said that? You gotta be very safe and careful. Someone warned me.”

“I control the block, we’ve got ‘em surrounded.”

“Oh, is this intimidating? I don’t think so.”

The reference to the threat against Chutkan puts that example into the record before the DC Circuit hears this appeal. DOJ provided the reference to Taranto (Judge Carl Nichols’ affirmation of his detention order post-dates when DOJ initially submitted this motion on September 5) to support this passage, in which DOJ notes that the catalog of past incitement it has presented thus far is in no way comprehensive:

The defendant does not meaningfully dispute the accuracy of any of these findings. Instead, he first argues (ECF No. 110 at 8-10) that they lacked adequate evidentiary support. But the Government’s uncontradicted filings (ECF No. 57 at 2-13; ECF No. 64 at 9-12) documented a long history of targeted tweets as well as a litany of individuals who have described (sometimes in sworn testimony) the repeated and foreseeable effects of his targeting. E.g., ECF No. 57 at 3 (quoting congressional testimony stating, “After the President tweeted at me by name, calling me out the way he did, the threats became much more specific, much more graphic, and included not just me by name but included members of my family by name, their ages, our address, pictures of our home. Just every bit of detail you could imagine. That was what changed with that tweet.”); id. at 5 (quoting congressional testimony stating, “[W]hen someone as powerful as the President of the United States eggs on a mob, that mob will come.”).7 As the Court explained, these citations to public statements and testimony were “[u]ndisputed,” ECF No. 105 at 2, and there was no need to submit the same material as part of an affidavit, ECF No. 103 at 57. Cf. United States v. Smith, 79 F.3d 1208, 1210 (D.C. Cir. 1996) (per curiam) (holding that the parties may proceed by proffer at a detention hearing). The factual findings here were adequately supported and readily distinguish this case from Ford. Cf. Ford, 830 F.2d at 597 (noting that the order was issued sua sponte); id. at 603 (Krupansky, J., concurring) (noting the absence of factual findings). And the defendant will not be able to demonstrate that they are clearly erroneous on appeal.

The Chutkan and Taranto examples reinforce the overall point DOJ makes with this filing: Trump has not contested the proof in their original submission that after he targets people, the mob soon follows.

He has simply ignored that evidence.

Indeed, I called John Lauro out for ignoring that evidence in real time.

Lauro ignores the multiple cases, cited in prosecutors’ filing, where people told Trump directly that his incitement had ratcheted up threats against people like Jeff Duncan, Chris Krebs, and Ruby Freeman.

Trump’s lawyers have now established a pattern.

In the recusal fight, prosecutors pointed out that the two sentencing hearings which Trump cited to justify recusal included one, that of Robert Palmer, where a January 6 defendant stated that he went to the Capitol, where he serially assaulted some cops, “at the behest” of Trump because Trump and others had convinced him he had to take action to stop the vote certification. Trump ignored that discussion in his reply.

When Trump complained that Jack Smith improperly claimed that Trump, “fueled . . . an unprecedented assault on the seat of American democracy,” DOJ laid out that, in fact, the indictment did show how Trump riled up the mob, of which this paragraph is just one example:

Finally, on the afternoon of January 6, after “a large and angry crowd—including many individuals whom the [d]efendant had deceived into believing the Vice President could and might change the election results—violently attacked the Capitol and halted the proceeding,” the defendant exploited the disruption in furtherance of his efforts to obstruct the certification, id. at ¶10e.

Trump ignored this reply in his bid for a stay.

Both Trump’s motion to dismiss for absolute immunity and for Constitutional grounds ignore the actual charges and overt acts of which he is accused and instead tell a tale of protected speech. His motion to dismiss on statutory grounds, meanwhile, completely ignores how he mobilized the mob and thereby successfully obstructed the vote certification (which, as noted, DOJ had laid out in this underlying dispute), choosing instead to ask that those allegations be stricken from the indictment and then, assuming that will work, claiming that nothing he did actually did obstruct the vote certification.

That is, in over 130 pages of filings attempting to make his prosecution go away, Trump tried to simply remove all overt acts showing how he sent the mob on January 6 from his indictment, rather than contesting the veracity of those allegations.

As DOJ notes, by appealing this, Trump will have another opportunity to dispute Chutkan’s findings of fact that his attacks do, in fact, result in targeted threats.

The Court’s Order was premised on three well-supported factual findings.6 First, the defendant has a long history of using his social media account and public statements to target perceived adversaries by singling them out and using inflammatory and disparaging language that “vilif[ies] and implicitly encourage[s] violence against” them. ECF No. 103 at 84. Second, when the defendant does so, harassment, threats, and intimidation reliably follow. ECF No. 105 at 2. Third, such harassment, threats, and intimidation “pose a significant and immediate risk that (1) witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted for harassment or threats; and (2) attorneys, public servants, and other court staff will themselves become targets for threats and harassment.” Id.

6 Although the Court of Appeals will review the propriety and scope of the Order de novo, it will review questions of “historical fact” such as these for clear error. See Thompson v. Hebdon, 7 F.4th 811, 819 (9th Cir. 2021); Keister v. Bell, 879 F.3d 1282, 1287 (11th Cir. 2018); Green v. Haskell Cnty. Bd. of Comm’rs, 568 F.3d 784, 796 (10th Cir. 2009); Gustafson v. Jones, 290 F.3d 895, 906 (7th Cir. 2002).

That’ll provide DOJ yet another opportunity to lay out evidence supporting this formula, and yet another opportunity for Trump to try to ignore it to make it just go away.

“See, First Amendment, just say First Amendment, free speech,” prosecutors cite Taylor Taranto in the footnote, prowling Obama’s neighborhood after having been sent there by a Trump Truth Social post.

There’s no better embodiment of Trump’s formula for violence than a mentally disturbed man invoking the First Amendment — just as Trump does here — even as he stalks someone Trump has invited him to target.

And I’m sure, if asked to on appeal, prosecutors would be all too happy to provide more examples showing how Trump mobilized people like Robert Palmer and Taylor Taranto.

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“Leave the Rest to” Mike Johnson: Republicans Prepare to Elect Key Jan6 Figure as Speaker

October 25, 2023/196 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Update: Sure enough, Johnson was elected unanimously, 220-209. All the Republicans who had raised issues about election denialism (like Ken Buck) capitulated, as did all the so-called moderates.

On December 27, 2020, Donald Trump told Richard Donoghue to announce that the election was corrupt.

“Leave the rest to me and the R Congressmen,” Trump said.

One of those Congressmen — one who had for weeks been inventing reasons for other Republican Congressmen to defy their oaths — was Mike Johnson.

NYT described Johnson’s role this way:

[I]n early December 2020, the Texas attorney general filed a long-shot appeal citing an array of unproven claims of fraud and other irregularities and asking the U.S. Supreme Court to invalidate the Pennsylvania results on similar constitutional grounds.

Mr. Johnson drafted a supporting brief that focused on the constitutional argument. As chairman of the Republican Study Committee, he pushed its members to sign the brief, and he also wrote an email to all Republican lawmakers warning in bold red letters that Mr. Trump would be tracking their response. “He said he will be anxiously awaiting the final list to review,” he wrote.

[snip]

The lawyer for the House Republican leadership told Mr. Johnson that his arguments were unconstitutional, according to three people involved in the conversations, and Ms. Cheney, also a lawyer, called the brief “embarrassing.” Mr. McCarthy, the Republican leader, told members that he refused to sign, the three people said.

Nonetheless, Mr. Johnson pushed ahead and filed the brief on Dec. 10 with 105 lawmakers as co-signers, and within a day he had added 20 more — including Mr. McCarthy. Later, at the caucus meeting on Jan. 5, 2021, Mr. Johnson suggested the signers, in effect, had signaled their support for declaring “constitutional infirmity” as grounds for objecting. Most of the signers did exactly that.

In the days leading up to January 6, he invented a reason beyond voter fraud not to do what the Constitution requires.

In formal statements justifying their votes, about three-quarters relied on the arguments of a low-profile Louisiana congressman, Representative Mike Johnson, the most important architect of the Electoral College objections.

On the eve of the Jan. 6 votes, he presented colleagues with what he called a “third option.” He faulted the way some states had changed voting procedures during the pandemic, saying it was unconstitutional, without supporting the outlandish claims of Mr. Trump’s most vocal supporters. His Republican critics called it a Trojan horse that allowed lawmakers to vote with the president while hiding behind a more defensible case.

On Monday night, Trump said something similar as what he said to Richard Donoghue, but he said it publicly. He told supporters in New Hampshire that they don’t have to vote, they only have to watch what sounds like vote counters.

You got to get out there and you got to watch those voters. You don’t have to vote. Don’t worry about voting. The voting, we got plenty of votes. You got to watch election night.

The next day, Matt Gaetz first shepherded Tom Emmer’s nomination to be Speaker, then let Trump destroy his candidacy by Tweet (Trump’s return to his fraud trial was delayed slightly, and this post came out while he was in the courtroom).

By the end of the evening, Johnson had been picked as the next man to try to get 217 votes.

When a reporter asked Johnson, at the gleeful presser afterwards, about his role in leading efforts to overturn the results of the 2020 election, everyone booed, he simply shook his head, and called for the next question.

It remains the case that no vote in these caucus meetings have generated the total votes necessary to win. Politico reported that 44 of those present didn’t vote for either candidates, and the total votes case were only 201: still less than Hakeem Jeffries will get.

Republicans went back to the drawing board, and made Johnson the latest aspirant to a position the fractured and exhausted conference can’t seem to fill. He beat out a field of four other candidates, including Byron Donalds, in the final ballot by a 128 to 29 vote. Some 44 other Republicans didn’t vote for either of the two men.

But it increasingly looks like this process of picking a Speaker is a process designed to oust those who did support their oaths on January 6 and replace them with people who could find excuses to pick Donald Trump in 2025.

Update: The first round, via secret ballot, is where Johnson only got 128 votes. He would have gotten around 198 in a later public vote.

He won only 128 votes, defeating Rep. Byron Donalds (R-Fla.), who won 29 votes. But 44 Republicans voted for other candidates — including 43 who voted for McCarthy, according to notes taken by Rep. Randy Weber (R-Tex.).

But Johnson did far better in a roll-call vote late Tuesday night in which House Republicans voted by name instead of by secret ballot. Just three lawmakers voted “present” and about 20 were absent, according to two lawmakers. The rest backed Johnson.

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Cautions on ABC’s Huge Mark Meadows Scoop

October 24, 2023/53 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

For more than six months, access journalists in DC have been trying to confirm how much Mark Meadows cooperated with Jack Smith.

Today, ABC has a huge scoop reporting that Meadows testified at least three times, one time — before a grand jury — with immunity.

Former President Donald Trump’s final chief of staff in the White House, Mark Meadows, has spoken with special counsel Jack Smith’s team at least three times this year, including once before a federal grand jury, which came only after Smith granted Meadows immunity to testify under oath, according to sources familiar with the matter.

Click through to read the details — ABC has earned the clicks.

But I caution against concluding too much about what the testimony means. Most importantly, there’s no hint that Meadows has flipped. Meadows has testified (which a past ABC scoop made clear). But giving immunized testimony is not flipping, and the two ABC stories raise far more questions about the story Meadows has told.

I say that for several reasons. First, ABC doesn’t describe the dates for any of his interviews. I’ll return to that, but it’s important that ABC doesn’t reveal whether Meadows’ testimony to Jack Smith precedes or postdates the Georgia indictment and subsequent failure to get the Georgia indictment removed to Federal courts. An earlier big ABC scoop describes April grand jury testimony, and it’s not clear that this would be a different time frame or grand jury appearance.

I offer cautions, as well, because virtually all of ABC’s reporting says that Meadows was asked not about what Trump did on a given day, but whether Meadows believed what Meadows had said publicly. Here’s an example.

Sources told ABC News that Smith’s investigators were keenly interested in questioning Meadows about election-related conversations he had with Trump during his final months in office, and whether Meadows actually believed some of the claims he included in a book he published after Trump left office — a book that promised to “correct the record” on Trump.

Again, click through to see how much of the rest is of the same sort.

As I noted in my post on that prior big ABC scoop, there are still loads of details — especially about January 6 — missing from the public timeline that Meadows surely knows.

There’s a lot that’s missing here — most notably Meadows’ coordination with Congress and any efforts to coordinate with Mike Flynn and Roger Stone’s efforts more closely tied to the insurrection and abandoned efforts to deploy the National Guard to protect Trump’s mob as it walked to congress. Unless those actions get added to charges quickly, Meadows will be able to argue, in Georgia, that his actions complied with federal law without having to address them. If and when they do get charged in DC, I’m sure Meadows’ attorneys hope, his criminal exposure in Georgia will be resolved.

Importantly, that earlier ABC scoop served to signal co-conspirators how Meadows changed his testimony after prosecutors obtained proof his claims about his ghost-writers — the same ghost-writers whose book remains at the center of ABC’s scoop! — were proven wrong by further evidence.

That story suggested Meadows was only going to be as truthful as evidence presented to him required him to be.

And this story is of the same type. It describes how, as he did in the stolen documents case, Meadows said he didn’t believe what he wrote when it was legally necessary.

Finally, that post also lays out that the narrative told in the DC indictment, while useful for Jack Smith, is different than the narrative told by Fani Willis, where Mark Meadows has not given cooperative testimony. The right column (his story to Jack Smith) in this table is helpful for Jack Smith, but probably not true; the left column (where he didn’t cooperate) is more damning.

Meadows team recites the alleged Georgia acts as Judge Jones has characterized them on page 19 and then directly quotes the references to Meadows in the federal indictment on page 26. It helps to read them a table together:

There’s an arc here. The early acts in both indictments might be deemed legal information gathering. After that, in early December, Meadows takes two actions, one alleged in Georgia and the other federally, both of which put him clearly in the role of a conspirator, neither of which explicitly involves Trump as charged in the Georgia indictment. Meadows:

Asks Johnny McEntee for a memo on how to obstruct the vote certification

Orders the campaign to ensure someone is coordinating the fake electors

The events on December 22 and 23, across the two indictments, are telling. Meadows flies to Georgia and, per the Georgia indictment, attempts to but fails to access restricted areas. Then he flies back to DC and, per the federal indictment, tells Trump everything is being done diligently. Then Meadows arranges and participates in another call. Both in a tweet on December 22 and a call on December 23, Trump pressures Georgia officials again. For DOJ’s purposes, the Tweet is going to be more important, whereas for Georgia’s purposes, the call is more important. But with regards his argument for removal and dismissal, Meadows would argue that he used his close access to advise Trump that Georgia was proceeding diligently.

On December 27, Meadows calls and offers to use campaign funds to ensure the signature validation is done by January 6. This was not Meadows arranging a call so Trump could make the offer himself, it was Meadows doing it himself, likely on behalf of Trump, doing something for the campaign, not the country.

On January 2, Meadows participates in the Raffensperger call, first setting it up then intervening to try to find agreement, but then ultimately pressuring state officials not so much to just give Trump the votes he needs, which was Trump’s ask, but to turn over state data.

Meadows: Mr. President. This is Mark. It sounds like we’ve got two different sides agreeing that we can look at these areas ands I assume that we can do that within the next 24 to 48 hours to go ahead and get that reconciled so that we can look at the two claims and making sure that we get the access to the secretary of state’s data to either validate or invalidate the claims that have been made. Is that correct?

Germany: No, that’s not what I said. I’m happy to have our lawyers sit down with Kurt and the lawyers on that side and explain to my him, here’s, based on what we’ve looked at so far, here’s how we know this is wrong, this is wrong, this is wrong, this is wrong, this is wrong.

Meadows: So what you’re saying, Ryan, let me let me make sure … so what you’re saying is you really don’t want to give access to the data. You just want to make another case on why the lawsuit is wrong?

Meadows was pressuring a Georgia official, sure, but to do something other than what Trump was pressuring Raffensperger to do. His single lie (he was charged for lying on the call separately from the RICO charge), one Willis might prove by pointing to the overt act from the federal indictment on December 3, when Jason Miller told Meadows that the number of dead voters was not 10,000, but twelve, is his promise that Georgia’s investigation has not found all the dead voters.

I can tell you say they were only two dead people who would vote. I can promise you there were more than that. And that may be what your investigation shows, but I can promise you there were more than that.

But even there, two is not twelve. Meadows will be able to challenge the claim that he lied, as opposed to facilitated, as Chief of Staff, Trump’s lies.

Finally, in an overt act not included in the Georgia indictment, Meadows is among the people on January 6 who (the federal indictment alleges) attempted to convince Trump to call off the mob.

There’s a lot that’s missing here — most notably Meadows’ coordination with Congress and any efforts to coordinate with Mike Flynn and Roger Stone’s efforts more closely tied to the insurrection and abandoned efforts to deploy the National Guard to protect Trump’s mob as it walked to congress. Unless those actions get added to charges quickly, Meadows will be able to argue, in Georgia, that his actions complied with federal law without having to address them. If and when they do get charged in DC, I’m sure Meadows’ attorneys hope, his criminal exposure in Georgia will be resolved.

Of what’s included here, those early December actions — the instruction to Johnny McEntee to find some way to obstruct the January 6 vote certification and the order that someone coordinate fake electors — are most damning. That, plus the offer to use campaign funds to accelerate the signature match, all involve doing campaign work in his role as Chief of Staff. For the federal actions, Jack Smith might just slap Meadows with a Hatch Act charge and end the removal question — but that might not help him, Jack Smith, make his case, because several parts of his indictment rely on exchanges Meadows had privately with Trump, and Meadows is a better witness if he hasn’t been charged with a crime.

Aside from those, Meadows might argue — indeed, his lawyers may well have argued to Jack Smith to avoid being named as a co-conspirator — that his efforts consistently entailed collecting data which he used to try to persuade the then-President, using his access as a close advisor, to adopt other methods to pursue his electoral challenges. Meadows’ lawyers may well have argued that several things marked his affirmative effort to leave the federally-charged conspiracies. In this removal proceeding, I expect Meadows will argue that his actions on the Raffensperger call were an attempt, like several others, to collect more data to use his close access as an advisor to better persuade the then-President to drop the means by which he was challenging the vote outcome.

The point being, that before Fani Willis indicted Mark Meadows, Meadows had found a story that was going to work. And now, that story doesn’t work anymore.

Which is why the timing of Meadows’ immunized testimony to a grand jury and the timing of this scoop matters. His January 6 testimony seems to conflict with what Willis knows. This paragraph, from today’s big ABC scoop, is even less credible than stuff in the indictments.

However, according to what Meadows told investigators, Trump seemed to grow increasingly concerned as he learned more about what was transpiring at the Capitol, and Trump was visibly shaken when he heard that someone had been shot there, sources said.

If the two versions of Meadows story have started to obviously conflict, he’s may be doing some soul searching about whether he wants to go the way of Sidney Powell and Ken Chesebro and Jenna Ellis, who sent 350 texts with Meadows.

And before he does that soul searching, he’s going to want to signal to others what he has said, to test how valuable it is for him to continue to say it.

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25-3=22: Diminishing Representations

October 24, 2023/71 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Less than a day after Sidney Powell pleaded guilty in Georgia, but before he made his curious comments that she would be conflicted from representing him, Trump responded to DOJ’s bid to require him to reveal any advice of counsel defense by mid-December, when trial exhibits are due.

In the DOJ motion, they claimed that Trump knew what had been withheld from DOJ under privilege claims.

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

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

Trump appears to disagree with DOJ’s claim that he knows the universe of materials withheld on privilege grounds. He wants DOJ to share with him everything that DOJ knows about over which a privilege claim has been made.

He even suggests that some of these 25 people, potentially including Powell, were not claiming his was the privilege they were protecting.

The prosecution claims that 25 witnesses have invoked privilege. Presumably, the prosecution also received privilege logs or other privilege invocations in response to document requests. The prosecution should be required to disclose these 25 witnesses, along with all of the logs in which the prosecution is interested. At this time, defense counsel has not been able to fully review the voluminous discovery in this matter, which is indeed impossible within the schedule set by the Court.

At a minimum, the prosecution should (1) identify all materials within their discovery production that they assert are attorney-client privileged information, work product, or are otherwise protected; (2) describe the basis for the assertion that the materials are protected and who holds the privilege with respect to those materials; (3) identify the 25 witnesses referenced in the motion, or any other witnesses, that have asserted the attorney-client privilege or who the prosecution believes possess attorney-client privileged information; and (4) identify all materials not within their discovery production that they believe the defense would be required to produce regarding an advice of counsel defense, including the source of the materials.

His filing even made an obscure comment, taunting that DOJ would need to turn over “what it recovers” from previously privileged witnesses and records.

6 The prosecution does not seem to recognize that if the defense produces privileged discovery, the prosecution then has an obligation to produce what it recovers from its investigation of the previously privileged witnesses and records.

That was Friday. Also on Friday, Kenneth Chesebro pled guilty in Georgia. And Jenna Ellis has (unsurprisingly, given that Trump refused to pay for her defense) also pled guilty.

Just for reference, here are the privilege logs that Rudy and Bernie Kerik submitted in the Ruby Freeman case; between the two of them, Jenna appears over 150 times, including on a bunch of Dominion-related communications.

There were clearly 25 lawyers in the know. But Trump seems to have some doubts whether he knows who those lawyers were representing.

As more of them plead guilty, he may have more urgency in wanting to learn the full details of their privilege claims.

Update: Folks are disputing how useful Jenna will be as a cooperating witness. I agree with NYT: she’s more valuable than Ken Chesebro, and possibly even than Sidney Powell.

Here are the people that she at first tried to claim privilege over with the January 6 Committee, only to invoke the Fifth Amendment:

Mark Meadows, with whom she exchanged 350 texts
Steve Bannon
Someone who is probably Ali Alexander
Doug Mastriano
Eric Trump
Jay Sekulow
Eric Herschmann
Boris Epshteyn
Alex Bruesewitz
Andrew Giuliani, Peter Navarro, and Navarro aide Joanna Miller
Christina Bobb
Phil Waldron
Sean Hannity producer Linda McLaughlin
Jeanine Pirro

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Trump’s Motions to Dismiss Things That Aren’t the Charges Against Him

October 24, 2023/108 Comments/in 2020 Presidential Election, Hunter Biden, January 6 Insurrection /by emptywheel

Last night, Trump just met the deadline for filing motions to dismiss his January 6 indictment.

I’m going to lay out what he filed. I’ll review them at length in follow-ups. Here’s a handy table to understand them.

Motion to Dismiss on Constitutional Grounds: This 31-page motion cites Mollie “Federalist Faceplant” Hemingway. But it doesn’t actually mention the charges in the indictment. Having not described how his (and his fake electors’) false claims were charged as conspiracy to defraud the government, having not explained how orders to Mike Pence and the incitement of his mob obstructed the vote certification, having not acknowledged efforts to reverse vote counts in the states, Trump then claims he’s being prosecuted for First Amendment protected speech.

In a section that significantly overlaps with his Motion to Dismiss on Absolute Immunity grounds, Trump claims the failed January 6 impeachment prevents him from being tried on substantially different crimes.

Motion to Dismiss on Statutory Grounds: This filing moves to dismiss the indictment for failure to state a claim, a motion similar to dozens if not hundreds that have failed for January 6 defendants.

Trump moves to dimiss the 18 USC 371 charge against him because, he claims, all the lying alleged in the indictment (which he all but concedes was false in the MTD on Constitutional Grounds) didn’t involve deceit. He even argues that because there was “a clear difference in form” in the fake electors submitted to NARA, no deceit (or forgery) was involved!

Interestingly, Trump says that his false statements to Congress under 18 USC 1001 (which, he notes, was not charged) would be exempted as advocacy. This ignores the abundant litigation finding the vote certification to be an official proceeding.

Trump’s challenge to 18 USC 1512(c)(2) largely involves completely misrepresenting the finding of Robertson, which I wrote about here. I don’t think Trump even engages with the “otherwise illegal” standard applied to Thomas Robertson. He definitely doesn’t engage with the standard that right wing judges want to adopt: unlawful personal benefit.

Trump’s attack on 18 USC 241 is particularly curious. In spite of the fact that his own DOJ was taking actions against false election claims online in 2020, he argues there was no court decision, in 2020, saying that it would be illegal (the Douglass Mackey prosecution, charged by a guy who had been one of the Bill Barr’s top deputies, has since done so). More curiously, Trump doesn’t even seem to understand that all his other attempts to prevent Joe Biden votes from being counted are also overt acts that support this prosecution.

Motion to Dismiss for Selective and Vindictive Prosecution: This is mostly a political document. It points to the scant evidence that Joe Biden was behind this prosecution. It claims that this indictment was retaliation for Trump’s complaints about his stolen document indictment. He cites his own attacks on Hunter Biden (citing Congressional press announcements, not any of his own posts, though he does include two of his own other posts on more general attacks), including one that post-dates this indictment (which was charged on August 1).

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]

This ploy is interesting, given the likelihood that Hunter Biden will file a parallel selective prosecution motion.

He also cites two articles showing that Garland didn’t open an investigation into Trump right away as proof that he was unfairly targeted. I suspect Trump may try to call Steve D’Antuono, whose actions are described in one of them (the famous and problematic Carol Leonnig story), to talk about his own resistance to opening the investigation. This motion doesn’t do the least amount of things it’d need to do to actually get a hearing (in part because the evidence all shows the opposite of what Trump claims). But he would have fun if he somehow did get a hearing (and if he does not but Hunter does, he’ll use Hunter’s efforts to renew the demand).

Motion to Strike Inflammatory Allegations: This is an attempt to eliminate the language in the indictment showing how Trump mobilized his mob because he isn’t charged with mobilizing the mob (as DOJ already laid out, that is one of the means by which he obstructed the vote certification). This is likely tactical, an attempt to remove one of the primary means by which he obstructed the vote certification to make his 18 USC 1512(c)(2) argument less flimsy.

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Trump’s First Amendment Defense of Mobilizing His Violent Mob

October 23, 2023/62 Comments/in 2020 Presidential Election, 2024 Presidential Election, January 6 Insurrection /by emptywheel

There’s a move in Trump’s motion for a stay pending appeal of the gag order Judge Tanya Chutkan imposed that deserves more attention.

Trump appealed the gag last Tuesday and requested the stay on Thursday, about which Judge Chutkan ordered additional briefing that same day; we’ll see more briefing about this all week.

MINUTE ORDER as to DONALD J. TRUMP: Upon consideration of Defendant’s opposed 110 Motion for Stay Pending Appeal, Request for Temporary Administrative Stay, and Memorandum in Support, it is hereby ORDERED that the court’s 105 Opinion and Order is administratively STAYED to permit the parties’ briefing and the court’s consideration of Defendant’s Motion. It is FURTHER ORDERED that the government shall file any opposition to Defendant’s Motion by October 25, 2023, and that Defendant shall file any Reply by October 28, 2023.

A substantial portion of the 33-page motion speaks for the First Amendment rights of his mob to hear, respond to, and amplify Trump’s speech. To defend this principle, Trump cites, among other things, the Missouri v. Biden that SCOTUS just agreed to review over the objections of Sam Alito, Clarence Thomas, and Neil Gorsuch.

Under the First Amendment, violating the rights of a speaker inflicts an equal and reciprocal constitutional injury on the listener. “Freedom of speech presupposes a willing speaker. But where a speaker exists, . . . the protection afforded is to the communication, to its source and to its recipients both.” Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976) (emphasis added) (collecting many cases); see also, e.g., Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 390 (1969) (“It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.”); Packingham v. North Carolina, 582 U.S. 98, 104 (2017) (recognizing the right to “speak and listen, and then … speak and listen once more,” as a “fundamental principle of the First Amendment”); Missouri v. Biden, — F.4th –, No. 23- 30445, 2023 WL 6425697, at *11 (5th Cir. Oct. 3, 2023) (holding that the “right to listen is ‘reciprocal’ to the … right to speak” and “constitutes an independent basis” for relief). Thus, injuring President Trump’s ability to speak injures the First Amendment rights of over 100 million Americans who listen to him, respond to him, and amplify his message.

The claim to have 100 million listeners is a bit like calling his NY penthouse 33,000 square feet, insofar as it relies on overlapping numbers, including the 87 million followers he has but does not tweet to on Xitter.

Trump necessarily dedicates a very long footnote to explaining how he has standing to appeal this gag on behalf of his mob.

3 President Trump unquestionably has third-party standing to defend the rights of his audiences in this context. The Supreme Court is “quite forgiving” of third-party standing requirements “[w]ithin the context of the First Amendment.” Kowalski v. Tesmer, 543 U.S. 125, 130 (2004). The First Amendment’s overbreadth doctrine, for example, relieves the third-party plaintiff of the burden to show the usual “close relationship” and “hindrance” required by the third-party standing doctrine, id.; instead, Article III injury is all that is required. See id.; United States v. Sineneng-Smith, 140 S. Ct. 1575, 1586 (2020) (Thomas, J., concurring) (“Litigants raising overbreadth challenges rarely satisfy either requirement [‘close relationship’ and ‘hindrance’], but the Court nevertheless allows third-party standing.”) (citing Dombroski v. Pfister, 380 U.S. 479, 487 (1965)); N.J. Bankers Ass’n v. Att’y Gen., 49 F.4th 849, 860 (3d Cir. 2022) (noting that “the requirement that an impediment exist to the third party asserting his . . . own rights” does not apply when the challenged government action “substantially abridges the First Amendment rights of other parties not before the court”). Further, as the Supreme Court held in Bantam Books Inc. v. Sullivan, it is particularly important to allow third-party standing to vindicate First Amendment interests because “freedoms of expression … are vulnerable to gravely damaging yet barely visible encroachments” and must be protected by “the most rigorous procedural safeguards.” 372 U.S. 58, 66 (1963); see also id. at 64 n.6 (upholding the third-party standing of book publishers to assert the rights of distributors because “[t]he distributor … is not likely to sustain sufficient economic injury to induce him to seek judicial vindication of his rights,” whereas the seller has a “greater . . . stake” in vindicating those rights). In addition, the doctrine of third-party standing applies “when enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties’ rights.” Kowalski, 543 U.S. at 130. Here, the interference and restriction of President Trump’s First Amendment rights “would result indirectly in the violation of third parties’ rights,” id.—i.e., the rights of his audiences to receive, respond to, and amplify his speech.

I think this footnote is suspect, legally and practically. I mean, the notion that Stephen Miller’s NGO for fascism couldn’t vindicate these rights is nonsense. But it is nevertheless telling.

Trump makes that argument even while complaining that Judge Chutkan had to rely on the potential actions of others — that very same mob riled up by the amplified false victimization of Trump — to justify the gag itself.

Unable to justify the Gag Order based on President Trump’s actions, the prosecution pivots to third parties, alleging that unnamed others, outside of President Trump’s control, acted improperly before this case began. Such concerns cannot justify the Gag Order. The Supreme Court has repeatedly explained that citizens of this country cannot be censored based on a fear of what others might do. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (“[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy . . . except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”).

[snip]

In entering the Gag Order, the Court relied heavily on the anticipated reactions of unidentified, independent third parties to President Trump’s speech. The Court found that “when Defendant has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed.” Id. at 2. But the Court cited no evidence that President Trump’s statements—as distinct from the statements of millions of others—caused such alleged threats or harassment, let alone that the statements were directed to inciting imminent lawless action.

Remember, Trump has repeatedly denied that the indictment accuses him of mobilizing the mob against Congress. Even after DOJ disabused Trump of that fantasy, he is playing coy about the fact that the crime he is alleged to have committed significantly involves riling up a mob to use as a weapon.

Indeed, Trump admits this is the plan to get elected: to rile up the mob again, this time by using this prosecution as a trigger.

The prosecution filed the indictment in this matter on August 1, 2023. Doc. 1. As this case is pending, President Trump continues to campaign for President, and one of his core messages is that the prosecutions against him are part of an unconstitutional strategy to attack and silence the Biden Administration’s chief political rival. To advance this message, President Trump has made many public statements criticizing individuals he believes are wrongly prosecuting him, including President Biden, Attorney General Garland, and Special Prosecutor Jack Smith and his team. This viewpoint—that the prosecution is politically motivated—is one shared by countless Americans.

[snip]

President Trump’s speech in support of his re-election campaign—which is inextricably intertwined with this prosecution and his defense—lies “at the core of our electoral process of the First Amendment freedoms—an area . . . where protection of robust discussion is at its zenith.” Meyer v. Grant, 486 U.S. 414, 425 (1988) (citations and quotations omitted); see also Buckley v. Am. Const. Law Found., Inc., 525 U.S. 182, 186–87 (1999); McIntyre v. Ohio Elec. Comm’n, 514 U.S. 334, 347 (1995) (“[C]ore political speech” encompasses any “advocacy of a politically controversial viewpoint.” “No form of speech is entitled to greater constitutional protection than” core political speech.).

Some of this is just cynicism: by claiming all this is political speech, Trump does base his appeal on the most expansive First Amendment precedent. The legal arguments here, some of them, anyway, are not frivolous.

But he’s not wrong about his campaign strategy. The key to Trump’s political success since he was sworn in was to polarize the electorate based off false claims that any investigation of Trump’s crimes is an attack on him and his mob.

And at one point, Trump’s argument admits that this is all an argument about democracy.

The Gag Order’s carve-outs exacerbate the vagueness problems by imposing new layers of confusion upon the Order. Doc. 105, at 3. The carve-outs seem to authorize “criticizing the government generally, including the current administration or the Department of Justice,” but that does not seem to include criticizing the most relevant figure of the Department of Justice, i.e., Jack Smith. Id. The carve-outs supposedly allow President Trump to state “that his prosecution is politically motivated,” but the Gag Order prevents him from “targeting” the specific actors involved in his prosecution, so it prevents him from giving any specific or detailed justification for this claim. Id. Where claiming that the prosecution is politically motivated ends, and “targeting” the prosecutors against President Trump begins, is anyone’s guess. The carve-outs apparently authorize “statements criticizing the platforms or policies of . . . former Vice President Pence,” id., but the “platforms or policies” of candidates like Pence (and Biden) are deeply intertwined with their views on election integrity, with specific reference to the 2020 election. When does criticism of Mike Pence’s “platforms or policies” become a statement “that target[s] . . . the substance of [his] testimony,” id., when questions about the integrity of the 2020 election are “central” to the 2024 Presidential campaign?

Joe Biden (comments about whom this gag does not restrict) is running on democracy. Mike Pence is running on defending the Constitution.

Trump is running on a promise that none of that matters: no election outcome — not that of 2020, not that of 2024 — should be respected, unless he wins.

And the way to ensure that happens, Trump knows, is to guard the right of his mob to amplify and respond to his false claims of victimization.

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Donald Trump Raises Conflict Concerns about His Mike Flynn Pardon

October 22, 2023/86 Comments/in 2020 Presidential Election, January 6 Insurrection, Mueller Probe /by emptywheel

The data mules for Trump’s latest tirade seem to think his claims that Sidney Powell was never his lawyer are all an attempt to deny he ever took legal advice from Powell in the wake of her plea deal in Georgia.

But the substance of his tirade is far more interesting than that.

Trump doesn’t just claim that Sidney Powell was never his attorney — a claim that conflicts with claims Trump made in real time.

He says she would have been conflicted.

Immediately after Trump claims Sidney Powell would have been conflicted (because of what? Trump doesn’t say), the former President turns to the Thanksgiving pardon he gave to confessed agent of Turkey, Mike Flynn.

Trump implies he gave Flynn a pardon because, “He was an innocent man, much like many other innocent people who are being persecuted by this now Fascist government of ours.” But as we’ve just reviewed thanks to Flynn’s stupid lawsuit against DOJ, the pardon itself did not make that claim. Only a White House press release about the pardon did.

Plus, the pardon couldn’t have been based on innocence, not entirely, anyway, because Flynn made false statements in the process of reneging off his prior guilty plea to making false statements. It is quite literally impossible for Flynn to have been innocent of making any unlawful false statements, because the things he said in the process of reneging on his plea deal completely contradicted things he had said under oath earlier. The Flynn pardon was easily the most expansive of any pardons Trump gave (perhaps save the clemency for Roger Stone found in Trump’s desk drawer, which could pardon Stone for murdering someone on Fifth Avenue for all we know). It had to be written that broadly to prevent Judge Sullivan from referring Flynn for perjury before his court. The pardon covered not just the lies Flynn told the FBI on January 24, 2017, it also covered claims Flynn made before an EDVA grand jury and in plea colloquies before Sullivan.

So here we are, just days after DOJ submitted a response to Trump’s claim of absolute immunity that argued — among other things — that a presidential pardon given as part of a quid pro quo would be unlawful, and Trump is offering up not just that Sidney Powell wasn’t his attorney in November 2020 when he claimed she was, but that she would have been conflicted — apparently because of her representation of Mike Flynn! — from being his attorney.

In real time, I addressed the possibility that Trump’s public claims about whether Sidney Powell was or was not his attorney may have been an attempt to eliminate the conflict problem with Flynn’s pardon.

I wonder whether some smart lawyer grew concerned that Sidney Powell was claiming to represent the President even while she was representing someone asking for a pardon.

On November 15, Trump explicitly named Powell as part of his team. On November [19], Powell appeared at Rudy the Dripper’s press conference. On November 22, Rudy and Jenna Ellis made a show of cutting ties with her.

Sidney Powell is practice law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.

According to Maggie Haberman, either he didn’t like her appearance and/or advisors convinced Trump to separate himself from her nutjobbery. Three days later, November 25, Trump pardoned Powell’s client. The next day, after days of promising to Bring the Kraken, Powell finally started releasing her epically batshit suits. Trump has promoted them.

Indeed, it even appears some Administration lawyers are still associated with Powell’s efforts.

I’m not sure I understand whether there would be a conflict between Powell representing Trump (for free, inevitably, as all lawyers do), making desperate efforts to overturn the election at the same time she was trying to ensure her client did no prison time. If that’s a conflict, it may still exist anyway given Powell’s admission to Judge Sullivan that she had repeatedly discussed Flynn with Trump’s campaign lawyer, Jenna Ellis. The fact that DOJ packaged up altered documents to support a Trump attack on Biden may make those ties more important anyway (or lead to more details about them becoming public).

That was the publicly available timeline (and Maggie Haberman’s public explanation) when I wrote the post on November 27, 2020, just two days after the pardon.

But Trump’s January 6 indictment adds a few details to that timeline in the single solitary paragraph addressing Powell’s overt acts, which happens to be tucked away in the section on Georgia, the state where Powell just pled guilty.

On November 16, 2020, on the Defendant’s behalf, his executive assistant sent CoConspirator 3 and others a document containing bullet points critical of a certain voting machine company, writing, “See attached – Please include as is, or almost as is, in lawsuit.” CoConspirator 3 responded nine minutes later, writing, “IT MUST GO IN ALL SUITS IN GA AND PA IMMEDIATELY WITH A FRAUD CLAIM THAT REQUIRES THE ENTIRE ELECTION TO BE SET ASIDE in those states and machines impounded for non-partisan professional inspection.” On November 25, Co-Conspirator 3 filed a lawsuit against the Governor of Georgia falsely alleging “massive election fraud” accomplished through the voting machine company’s election software and hardware. Before the lawsuit was even filed, the Defendant retweeted a post promoting it. The Defendant did this despite the fact that when he had discussed CoConspirator 3’s far-fetched public claims regarding the voting machine company in private with advisors, the Defendant had conceded that they were unsupported and that Co-Conspirator 3 sounded “crazy.” Co-Conspirator 3’s Georgia lawsuit was dismissed on December 7.

Here’s how the timeline looks with the details from the indictment added in:

November 15: Trump says publicly Powell was part of his team
November 16: Nine minutes after Trump demanded lawsuits include attacks on Dominion, Powell orders that all forthcoming lawsuits include it: “IT MUST GO IN ALL SUITS IN GA AND PA IMMEDIATELY WITH A FRAUD CLAIM THAT REQUIRES THE ENTIRE ELECTION TO BE SET ASIDE”
November 19: Powell appears at the Rudy the Dripper press conference, looking far less embarrassing than the President’s lawyer, which didn’t stop Maggie Haberman from claiming that Powell’s appearance was the reason Trump was cutting Powell from his legal team
November 22: Jenna Ellis and Rudy make a big show of cutting ties with Powell
November 25: Having ordered that all lawsuits include the Dominion attack Trump ordered, Sidney Powell then files the first lawsuit including such an attack; on the very same day, Trump pardons her client and then starts disseminating her bullshit attacks on Dominion

At least according to the indictment, it all happens on the same day: The lawsuit attacking Dominion, the pardon, Trump’s celebration of the lawsuit attacking Dominion.

The indictment focuses on Trump’s claims that Powell was crazy — and up until now I have believed that’s in there as a guaranteed way to show that Trump was pushing lies he had disavowed.

But with Trump ranting about cooperating witness Sidney Powell’s conflicts, I’m no longer so sure.

Update: Fixed date of hair dye presser, h/t critter.

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Buried in DOJ’s Absolute Immunity Response, a Comment on Trump’s Suspected Zenith Crimes

October 21, 2023/48 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, January 6 Insurrection, Mueller Probe /by emptywheel

Earlier this month, Trump’s DC team filed a motion to dismiss his January 6 indictment based on a claim of absolute immunity, an argument that Presidents cannot be prosecuted for things they did while President.

To get a sense of how shoddy Trump’s argument was, you need only compare the number of citations to these cases:

Nixon v. Fitzgerald, which found Presidents had absolute immunity against civil lawsuits for things that fall within their official duties
US v. Nixon, which found that the same President who had absolute immunity from civil suit could not use Executive Privilege to withhold evidence from a criminal prosecution
Trump v. Vance, which held that Trump, while still President, was not immune from a criminal subpoena
Thompson v. Trump, in which SCOTUS upheld a DC Circuit Opinion that upheld a Tanya Chutkan opinion that the events of January 6 overcame any Executive Privilege claim Trump might make to withhold documents from Congress, a far higher bar than withholding them from the FBI

Trump’s absolute immunity claim was a shoddy argument, but you never know what this SCOTUS would rubber stamp, even considering its cert denial in Thompson v. Trump and questions about whether Clarence Thomas (who did not recuse in that case, but did in John Eastman’s appeal of a crime-fraud ruling against him) would be shamed into recusing in this one.

Shoddy argument and all, there was never going to be a way to carry out the first-ever prosecution of a former President without defeating an absolute immunity claim.

In general, DOJ’s response is much more adequate than Trump’s motion to the task of laying out one side of an argument that will ultimately be decided by a very partisan Supreme Court. But it is written as the first response in what will be, whatever the outcome, a historic ruling.

Before it spends ten pages addressing Trump’s application of Nixon v. Fitzgerald, it spends ten pages laying out the constitutional framework in question. In a section addressing Trump’s claim that his impeachment acquittal on January 6 charges meant he could not be charged for related crimes, DOJ notes that Trump argued at the time, that as a former President, the Senate no longer had jurisdiction to hold an impeachment trial. Then it cites the many Republican Senators who used that stance to justify their own acquittal votes. It notes that the Nixon pardon and the Clinton settlement both presumed potential exposure to prosecution once they became former Presidents.

Out of necessity, the Fitzgerald section adopts an analogy from that precedent to this one: In the same way that Fitzgerald likened the President to prosecutors and judges who enjoy immunity for their official acts, Fitzgerald did not immunize those same prosecutors and judges from other crimes. At a time of increased focus on undeclared gifts that Clarence Thomas has accepted from people with matters before the court and after a Sam Alito interview — with someone who has matters before the court — in which he claimed separation of powers prohibited Congress from weighing in on SCOTUS ethics, DOJ cited the 11th Circuit opinion holding that then-Judge Alcee Hastings could be prosecuted. That is, whatever the outcome of this dispute, it may have implications for judges just as it will for Presidents.

Only after those lengthy sections does DOJ get into the specifics of this case, arguing:

By misrepresenting the indictment in a bid to repackage it as acts that fit within the President’s official duties, Trump has not treated the allegations as true, as Motions To Dismiss must do
Trump’s use of the Take Care Clause to claim the President’s official duties extend to Congress and the states is not backed by statute
Because Trump is accused of conspiring with people outside of the government — unsurprisingly, DOJ ignores the Jeffrey Clark allegations in this passage (CC4), but while it invokes Rudy Giuliani (CC1), John Eastman (CC2), Kenneth Chesebro (CC5), and Boris Epshteyn (CC6), it is curiously silent about the allegations pertaining to Sidney Powell (CC3) — the case as a whole should not be dismissed

In total, DOJ’s more specific arguments take up just six pages of the response. I fear it does not do as much as it could do in distinguishing between the role of President and political candidate, something that will come before SCOTUS — and could get there first — in the civil suits against Trump.

And its commentary on Trump’s attempt to use the Take Care Clause to extend the President’s authority into areas reserved to the states and Congress is, in my opinion, too cursory.

The principal case on which the defendant relies (Mot. 35-36, 38, 43-44) for his expansive conception of the Take Care Clause, In re Neagle, 135 U.S. 1 (1890), cannot bear the weight of his arguments. In Neagle, the Supreme Court held that the Take Care Clause authorized the appointment of a deputy marshal to protect a Supreme Court Justice while traveling on circuit even in the absence of congressional authorization. Id. at 67-68; see Logan v. United States, 144 U.S. 263, 294 (1892) (describing Neagle’s holding); Youngstown Sheet & Tube, 343 U.S. at 661 n.3 (Clark, J., concurring) (same). Before reaching that conclusion, the Court in Neagle posed as a rhetorical question—which the defendant cites several times (Mot. 35, 38, 43, 44)—whether the president’s duty under the Take Care Clause is “limited to the enforcement of acts of congress or of treaties of the United States according to their express terms; or does it include the rights, duties, and obligations growing out of the constitution itself, our international relations, and all the protection implied by the nature of the government under the constitution?” 135 U.S. at 64. From the undisputed proposition that the president’s powers under Article II are not limited only to laws and treaties, it does not follow, as the defendant seems to imply, that every “right, duty, or obligation[]” under the Constitution is necessarily coterminous with the president’s powers under the Take Care Clause. Under that theory, for example, the president could superintend Congress’s constitutional obligation to keep a journal of its proceedings, U.S. Const. art. I, § 5, cl. 3, or the judiciary’s duty to adjudicate cases and controversies, U.S. Const. art. III, § 2, cl. 1.

The 11th Circuit and then SCOTUS will be facing a similar, albeit better argued, Take Care Clause argument when they review Mark Meadows’ bid to remove his Georgia prosecution. You’d think DOJ could do better — or at the very least note that Trump abdicated all premise of upholding the Take Care Clause during a crucial 187 minutes when his mob was attacking the Capitol.

All that said, I’m as interested in this response for the associated arguments — the seemingly hypothetical ones — such as the one (already noted) that in weighing this argument, the Supreme Court may also have to consider, again, whether they themselves are immune from prosecution for bribery.

It’s not just Clarence Thomas whose actions this fight could implicate.

In two places, DOJ uses hypotheticals to talk about other Presidential actions that might be crimes, rather than focus on the specifics of the case before Judge Chutkan.

For example, DOJ points to the possibility that a President might trade a pardon — a thing of value — as part of a quid pro quo to obtain false testimony or prevent true testimony.

For example, where a statute prohibits engaging in certain conduct for a corrupt purpose, the statute’s mens rea requirement tends to align, rather than conflict, with the president’s Article II duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, which would weigh heavily against the need for immunity. To illustrate, although the president’s power to grant pardons is exclusive and not subject to congressional regulation, see United States v. Klein, 80 U.S. (13 Wall.) 128, 147-48 (1872), criminal immunity should not shield the corrupt use of a presidential pardon—which plainly constitutes “anything of value” for purposes of the federal bribery statute, see 18 U.S.C. § 201(b)(3)—to induce another person to testify falsely or not to testify at all in a judicial, congressional, or agency proceeding.

Less than five years ago, of course, Roger Stone was telegraphing that prosecutors had offered him leniency if he would testify about dozens of conversations that he had with Trump during the 2016 election. Less than five years ago, the newly cooperative Sidney Powell first asked Trump to hold off on pardoning Mike Flynn, only to welcome a Trump pardon of Flynn while Powell and Flynn plotted ways to steal the election. Less than five years ago, Trump gave a last minute pardon to Steve Bannon, who currently faces four months of prison time because he refused to testify to Congress.

I’m not saying DOJ will revisit these pardons, all of which fit squarely within such a quid pro quo description. I’m noting that if the argument as a whole survives, this part of it may also survive.

The same is true of an even splashier passage. A paragraph describing the implications of Trump’s claim to absolute immunity lays out what some commentators have taken as hyperbolic scenarios of presidential corruption.

The implications of the defendant’s unbounded immunity theory are startling. It would grant absolute immunity from criminal prosecution to a president who accepts a bribe in exchange for a lucrative government contract for a family member; a president who instructs his FBI Director to plant incriminating evidence on a political enemy; a president who orders the National Guard to murder his most prominent critics; or a president who sells nuclear secrets to a foreign adversary. After all, in each of these scenarios, the president could assert that he was simply executing the laws; or communicating with the Department of Justice; or discharging his powers as commander-in-chief; or engaging in foreign diplomacy—and his felonious purposes and motives, as the defendant repeatedly insists, would be completely irrelevant and could never even be aired at trial. In addition to the profoundly troubling implications for the rule of law and the inconsistency with the fundamental principle that no man is above the law, that novel approach to immunity in the criminal context, as explained above, has no basis in law or history.

These seemingly extreme cases of crimes a President might commit, crimes that everyone should agree would face prosecution, include (these are out of order):

A President ordering the National Guard to murder his critics
A President ordering an FBI agent to plant evidence on his political enemy
A bribe paid in exchange for a family member getting a lucrative contract
A President selling nuclear secrets to America’s adversaries

Like the pardon discussion above, these hypotheticals — as Commander-in-Chief, with the conduct of foreign policy, with the treatment of classified materials — invoke actions where DOJ typically argues that the President is at the zenith of his power.

We have no reason to believe that Trump ordered the National Guard, specifically, to murder his critics. But we do know that on January 3, 2021, Trump proposed calling out 10,000 members of the National Guard to “protect” his people and facilitate his own march on the Capitol.

And he just cut me off, and he goes, well, we should call in the National Guard.

And then I think it was Max who said something to the effect of, Well, we should only call in the Guard if we expect a problem. And then the President says, no, we should call in the Guard so that there aren’t – so that there isn’t a problem. You know, we need to make sure people are protected.

And he said – he looked over at Max, and I don’t know if somebody was standing behind him or not. He just looked the other way from me and says, you know, want to call in 10,000 National Guard. And then opened my folder and wrote down 10,000 National Guard, closed my folder again.

We know that days later Mark Meadows believed the Guard would be present and Proud Boy Charles Donohoe seemed to expect such protection.

Similarly, we don’t know of a specific instance where Trump ordered an FBI agent to plant information on his political enemy. But we do know that as part of a Bill Barr-directed effort to reverse the Mike Flynn prosecution in 2020, misleading dates got added to the notes of Trump’s political enemies, Peter Strzok and Andrew McCabe.

Days after those misleading dates were made public via Sidney Powell, Trump used the misleading dates in a packaged debate attack on Joe Biden.

President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.

We know of no instance where Trump accepted a bribe in response to which a family member got a US government contract. We do, however, know of an instance where the Trump Administration gave the Saudis something of value — at the least, cover for the execution of Jamal Khashoggi — which everyone seems to believe has a tie to Jared’s lucrative $2 billion contract with the Saudi government.

As to selling nuclear secrets to a foreign adversary? Well, we know Trump had some number of nuclear secrets in his gaudy bathroom and then in his leatherbound box. We have no fucking clue what happened to the secrets that Walt Nauta allegedly withheld from Evan Corcoran’s review that got flown to Bedminster just before a Saudi golf tournament, never to be seen again.

All of which is to say that these edge cases — examples of Presidential misconduct that some commentators have treated as strictly hypothetical — all have near analogues in Trump’s record.

This response is a response about a very specific indictment, an indictment that describes actions Trump took as a candidate, often with those outside government, in ways that usurped the authorities reserved to states and Congress.

But in several points in the filing, DOJ invites review of other potential crimes, crimes conducted at the zenith of Presidential power, but crimes that may — must — otherwise be illegal, if no man is above the law.

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Judge Karen Henderson May Not Believe Holding the Presidency Is a Professional Benefit

October 20, 2023/51 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

After much delay, the DC Circuit upheld the conviction of former cop Thomas Robertson, finding that he corruptly obstructed the vote certification on January 6 because he used otherwise unlawful means in obstructing the vote certification.

I won’t spend too much time unpacking it because it will be (and a related opinion already has been) appealed.

Florence Pan, writing the majority opinion for the second straight opinion upholding the application of 18 USC 1512(c)(2) to January 6, found that there was sufficient evidence to find that Robertson had “corruptly” obstructed the vote certification, based on his otherwise felonious conduct.

Karen Henderson ruled that instead, Pan’s earlier opinion upholding 1512(c)(2) — or rather, Justin Walker’s concurrence — is binding as to the standard for “corruptly,” which wasn’t before the court in that ruling.

But then having said Walker was binding, Henderson instead reinterpreted and significantly narrowed his standard requiring personal benefit that Walker espoused.

Here’s how Pan described Henderson’s gymnastics.

The dissent claims that we are bound by Judge Walker’s view that “corruptly” in § 1512(c)(2) requires the defendant to act with the intent of obtaining an unlawful benefit for himself or another. See Dissenting Op. 8–15. But in applying that standard, Judge Walker reasoned that the indictments at issue in Fischer should be upheld, stating that “it might be enough for the Government to prove that a defendant used illegal means (like assaulting police officers) with the intent to procure a benefit (the presidency) for another person (Donald Trump).” Fischer, 64 F.4th at 361 (Walker, J., concurring in part and concurring in the judgment). The dissent does not explain why that reasoning, in an opinion that the dissent believes is binding, does not dictate affirmance in this case.

Instead, the dissent contends that we must overturn the jury’s verdict in this case because “[t]here is no evidence in the record suggesting Robertson obstructed the election certification proceeding in order to obtain an unlawful benefit for himself or someone else.” Dissenting Op. 33. That is incorrect. Robertson believed that the election was “rigged”; announced that he refused to be “disenfranchised”; and declared that he was “prepared to start” an “open armed rebellion.” S.A. 110, 190. That evidence was plainly sufficient to support a finding that Robertson intended to secure the unlawful benefit of installing the loser of the presidential election, Donald J. Trump, as its winner. See Fischer, 64 F.4th at 361 (Walker, J., concurring in part and concurring in the judgment); see also id. at 356 n.5 (reasoning that “the beneficiary of an unlawful benefit need not be the defendant or his friends” and § 1512(c)(2) could apply to a defendant “trying to secure the presidency for Donald Trump”).

To shore up its assessment of the evidence, the dissent states in a footnote that “[t]he ‘unlawful benefit’ the defendant seeks must be financial, professional or exculpatory.” Dissenting Op. 34 n.18. But Judge Walker’s concurring decision in Fischer, which the dissent believes is binding, see id. at 1, did not endorse such a limited definition. See Fischer, 64 F.4th at 356 n.5 (Walker, J., concurring in part and concurring in the judgment). And Judge Walker himself emphasized that, even were the requisite “benefit” so limited, the defendants’ conduct “may have been an attempt to help Donald Trump unlawfully secure a professional advantage — the presidency,” so would likely suffice. Id. The dissent’s position, in any event, ignores the fact that it can be “corrupt” to obstruct an official proceeding for the purpose of gaining a personal, social, or political favor. See United States v. Brenson, 104 F.3d 1267, 1273–81 (11th Cir. 1997) (affirming defendant’s conviction under 18 U.S.C. § 1503 where he disclosed details of a grand jury investigation to its target in order to get a date with the target’s daughter).

In her opinion, Henderson seems to suggest that securing the presidency corruptly for Trump wouldn’t necessarily be a professional benefit for Trump.

18 The “unlawful benefit” the defendant seeks must be financial, professional or exculpatory. See, e.g., Marinello, 138 S. Ct. at 1105 (avoiding taxes); Aguilar, 515 U.S. at 595 (concealing wrongdoing through illegal disclosure of wiretap); North, 910 F.2d at 851 (fabricating false testimony and destroying documents); see also Corruptly (def. 2), Black’s Law Dictionary (11th ed. 2019) (“corruptly usu[ally] indicates a wrongful desire for pecuniary gain or other advantage”). Acquittal is thus required if, as I view the evidence, Robertson merely intended to protest the outcome of the election or his (perceived) disenfranchisement or to make some other political point. The majority mistakenly insists that my view conflicts with Judge Walker’s Fischer opinion. Maj. Op. 37–38.

On the contrary, Judge Walker did not decide how broadly to construe the “unlawful benefit” requirement. He merely stated that he was “not so sure” that the sought-after benefit must be “financial, professional, or exculpatory.” Fischer, 15 64 F.4th at 356 n.5 (Walker, J., concurring in part) (citation omitted). And even if this panel agreed with Judge Walker’s suggestion that the office of the President “may” qualify as “a professional benefit,” see id., we would remain free to conclude that there was no evidence presented at trial to show that Robertson intended—either alone or collectively—to procure that benefit. [my emphasis]

None of this matters.

The underlying Fischer decision has already been appealed. This will be appealed.

The biggest takeaway is that self-imagined conservatives keep reaching well beyond the decision before them to try to carve up obstruction in such a way that stealing an election is not corrupt.

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