Barbara Jones Rules Project Veritas Was Not Engaged in Journalism When Brokering Ashley Biden’s Stolen Diary

After 16 months, Barbara Jones has submitted her Special Master report in the Project Veritas investigation to Judge Analisa Torres.

See this post for background.

She found 1,021 documents on James O’Keefe, Eric Cochran, and Spencer Meads’ phones that were responsive to the warrants in the case. Of those:

  • She reviewed 17 for crime-fraud exception and after asking for submissions on 14 of them (which I noted here), she found that 10 were excepted
  • She found 61 documents that Project Veritas successfully argued were not related to the search warrant

By my math, that leaves 953 files she recommends be turned over to investigators.

Much of the decision builds off the guilty pleas that Miles Kerlander and Aimee Harris entered into last August. Having already identified PV’s sources and established a crime had been committed, many of the questions regarding journalistic equities were far more limited.

Jones never mentioned that this case arose — and the first warrants against journalists obtained — under the Trump Administration. Though she does scoff at PV’s claims of malice.

Perhaps the most significant part of this ruling pertains to how she applies Bartnicki, which protects the publication of illegally obtained materials that the journalist had no role in obtaining. Not only does she except the case of PV, who are subjects of the investigation, but she seems to distinguish between investigative protection and criminal protection.

First, Petitioners’ heavy reliance on Bartnicki v. Vopper, 532 U.S. 514 (2001), is misplaced. Bartnicki addressed the narrow question of whether civil liability may be imposed on a publisher who obtained information in a lawful manner but from a source who obtained it unlawfully, a question that the Supreme Court answered in the negative. See id. at 528, 533–35. Here, the question is whether the Government may receive documents responsive to valid search warrants. Bartnicki does not speak to this issue, nor does it provide general principles applicable to my review.

Petitioners repeatedly argue that they are like the publisher in Bartnicki and that their actions fall “within Bartnicki’s protection.” James O’Keefe and Project Veritas’s Brief on First Amendment and Journalistic Privileges 19, Apr. 1, 2022 (“PV Br.”). Petitioners argue that Bartnicki renders the crimes under investigation here—including interstate transportation of stolen property and possession of stolen goods—“non-crimes.”4 Id. But Bartnicki addresses liability for publication of unlawfully obtained information (there, by a source) and does not “protect” unlawful acquisition of information. It does not suggest that people are free to commit unlawful acts simply because they are journalists. In fact, Bartnicki explicitly left open the question whether the government may punish not only a publisher’s “unlawful acquisition” of information but “the ensuing publication as well.” 532 U.S. at 528 (addressing only punishment of publication of materials obtained by a publisher lawfully but by a source unlawfully). Bartnicki certainly does not foreclose a government investigation of unlawful acts in acquiring material or excuse unlawful conduct by a journalist. See also Branzburg v. Hayes, 408 U.S. 665, 691 (1972) (“It would be frivolous to assert . . . that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws.”).5 Nor does Bartnicki’s holding restrict the evidence that the Government may receive under the standards set forth above.

4 To the extent Petitioners assert “no credible claim that Project Veritas reporters stole the diary or anything else,” PV Br. 19, the crimes listed in the search warrant include conspiracy to transport stolen property across state lines, interstate transportation of stolen property, and possession of stolen goods.

5 Even if Bartnicki was applicable to this review, that decision was made based on a factual record that clearly established the publisher had nothing to do with the wrongdoing and received the materials in a lawful manner. Petitioners’ roles are currently under investigation.

The judge in this case will now decide whether to accept this report. But the case against James O’Keefe and others would still take some time for resolution.

In another case where a search warrant originally appeared abusive but turned out to be tied to something beyond journalism, NPR reports on how Rolling Stone protected James Meek in its story breaking the story of the search targeting him in child sexual abuse material case.

Marathon Proud Boys sedition trial hits milestone as prosecution prepares to hand off to defense

From emptywheel, 4/2: Thanks to the generosity of emptywheel readers we have funded Brandi’s coverage for the rest of the trial. If you’d like to show your further appreciate for Brandi’s great work, here’s her PayPal tip jar.

The winding road to a verdict in the Proud Boys seditious conspiracy trial has been rocky but after 39 grueling days featuring bitter objections, delays, and a steady stream of motions for mistrial by the defense, a crucial milestone in the historic case was finally reached after prosecutors called their last witness last week. 

Starting Monday, the defense is expected to take the reins and it will be left to them to attempt an unraveling of weeks of evidence and testimony from nearly two dozen government witnesses including former Proud Boy, Jeremy Bertino, who pleaded guilty to seditious conspiracy already and had intimate ties to the ringleader of the neofascist network now on trial, Henry “Enrique” Tarrio. 

Soon, it is expected that Tarrio will take the stand and offer his take on the insurrection at the U.S. Capitol. His co-defendant, the one-time Infowars contributor Joseph Biggs—who seemingly never met a microphone he didn’t want to get in front of—is also expected to testify. Whether their alleged seditious cohorts Ethan Nordean, Zachary Rehl, and Dominic Pezzola will risk joining them, is unclear for now. 

In a trial that has been anything but a one-two punch for the Justice Department, it will be the next (estimated) two to three weeks of proceedings that could ultimately make or break the historic case for prosecutors. 

When the Proud Boys trial opened on January 12,  assistant U.S. Attorney Jason McCullough presented the thrust of the government’s argument to jurors. On its face, the premise was simple enough: Tarrio, Biggs, Nordean, Rehl, and Pezzola coordinated unflinchingly to stop the certification of the 2020 election by sheer force. 

Motivated by Donald Trump’s lie of a “stolen” election and fueled by the fear of a societal collapse triggered by any number of perceived boogeymen (namely, leftists, antifa, communists, and Joe Biden to name a few), McCullough argued the defendants planned to stop the certification by recruiting scores of people—some Proud Boys, some not—to aid them in their coming revolution so when the time for Congress to certify the results of the election finally arrived on Jan. 6, they were ready to strike. 

Witting and unwitting midwives of their revolt alike were the “tools” that Proud Boys needed to help them physically breach police lines, push past barriers, and get inside the Capitol, the prosecution has argued. Some of those “tools” of the conspiracy were members of the organization and others, as government witness and former Proud Boy Jeremy Bertino testified, were “normies” or just anyone who supported Trump and showed up at the Capitol willing to let loose.

From Tarrio, who allegedly oversaw the storming of the U.S. Capitol from afar while cheering it on in private and public alike; to Biggs, Nordean, and Rehl, who whipped people into a frenzy as they stalked to, around, and in the Capitol; and to Pezzola, who prosecutors say smashed apart a window that ultimately allowed a stream of rioters to flow inside the building; the government alleges each defendant played their specific role in leading or executing the greater attempt to upend democracy. 

The Proud Boys as an organization is not on trial and the government has been adamant in defending this point in the last ten weeks of proceedings, always leaving a wide berth for the First Amendment to protect the group’s virulent expression of its “western chauvinist” me-first, America-first, men-first, “fuck-your-feelings” philosophy.

Much energy has been expended by the defense on claims that Tarrio and his co-defendants only stand trial because they are the convenient “scapegoats” of a politically corrupt judicial system that has found them an all-too-easy target when holding the main culprit of Jan. 6 to account, former president Donald Trump, is too challenging.

A week after the second anniversary of the Capitol attack, Tarrio’s attorney Sabino Jauregui introduced himself to the jury for the first time with a concession and then a question: “Jan. 6 was horrible, we agree. But was Enrique responsible?” he said.

The defendants are not on trial for their internal communications, unsavory or steeped in racist misogyny they may be. Nor are they facing charges for the overheated and often paranoid nature of their engagements leading up to and on Jan. 6. And indeed, Donald Trump is not on trial in this case though at one point defense attorney Norm Pattis, for Biggs, did launch a stalled attempt to subpoena Trump for testimony. 

Responsibility. Time and place. Motive. Intent. These have been the prosecution’s focus for its case in chief and through the testimony of Capitol police officers, FBI agents, forensic analysts, and two former Proud Boys themselves. it has been a sweeping case for the government to lay out amid a battery of objections from its multi-defendant opponent. The defense has often spent time twisting itself into knots litigating and re-litigating the admissibility of certain pieces of evidence with little fruit to bear. The central theme to the objections, regardless of the defense attorney, is that the government’s case is overblown and unfounded. For others, like Pezzola’s attorney Roger Roots, or Tarrio’s attorneys, Sabino Jauregui and Nayib Hassan, there have been more regular winks, nods, or at times, outright assertions, during questioning that the FBI has cooked up a sort of deep-state plot against innocent if now rowdy protesters like the Proud Boys. 

Drawn-out fights over evidence have often prompted trial days to begin with jurors forced to enter or reenter the courtroom late or after waiting for a long period of time. 

One recent snarl midday was triggered by what had surfaced in a Proud Boys elder chat known as “Skull and Bones.” It showed chat members referencing Nazi propaganda or users with handles featuring Nazi-affiliated phrasing. Tarrio’s attorney jumped on a motion for mistrial when a text chain appeared to show a “tool” of the conspiracy “Chris Cannon PB” sharing that Nazi propaganda video with Tarrio on Jan. 6. It featured World War II footage of Adolph Hitler saluting victorious Nazi soldiers, among other images from the period. Though jurors saw the video and the surrounding conversation, the defense managed to convince presiding U.S. District Judge Tim Kelly to strike it from the record and instruct jurors to ignore it. 

Nonetheless, the jury saw shades of the world Tarrio operated in and the people he engaged with. That message was sent to Tarrio after the first breach on Jan. 6 and after he had already sent out the message: “make no mistake…we did this.” 

In that same private elders chat, Cannon asked Tarrio: “Are we a militia yet?”

“Yup,” Tarrio replied in a voice note.

Where early weeks of the trial were aimed at establishing the Proud Boys patterns of behavior that trended towards violence at political rallies before the 6th or tracking things like the group’s internal rancor as Trump’s bid to stay in power failed in the courts, more recently, it has been the prosecution’s “tools” theory that has dominated the jury’s attention. 

One of those many alleged “tools” utilized by the Proud Boys on Jan. 6 was former police officer and Proud Boy Nathaniel Tuck of Florida. Tuck appeared in a video after the breach, taking what seems to be a celebratory group photo outside of the Capitol. He appears with defendants Biggs and Nordean and other Proud Boys who marched from the Washington Monument that morning to the Capitol that afternoon, per a previous discussion had among members of the Proud Boys Ministry of Self Defense. 

Tuck makes what appears to be a Nazi “heil” gesture in the footage

The prosecution, as it turned out, didn’t focus on that gesture, letting the images speak for themselves. Instead, the jury’s attention was brought to Tuck’s greater alleged conduct and his association with the defendants on trial as one of many “tools.” 

The defense has rejected this legal theory vehemently, arguing, in short, that it is a roundabout way of achieving a conviction when evidence of a hard and fast plan to stop the certification is too attenuated. But as other sedition trials of Jan. 6 have shown, like the first Oath Keepers case with that ringleader Elmer Stewart Rhodes, the evidence of an explicit plan is not necessarily needed for a jury to convict on seditious conspiracy. 

The government’s argument that Proud Boys incited the mob to join their revolt may be sufficient. On Monday, when witness Travis Nugent is expected to testify for the defense, he is largely expected to tell the jury that Proud Boys had no plan at all. 

Persuasive evidence of a concrete plan or not, the prosecution has continually pointed to the disruptive element that Proud Boys brought to each site they marched through on Jan. 6. Police testified on at least two occasions in the last several weeks that before Proud Boys showed up, people were calm. It was the Proud Boys who got edgy. It was the Proud Boys who were ready for a fight and had been for months, the government contends. 

To that end, when Tarrio and “Chris Cannon PB” were texting about the deteriorating scene at the Capitol in the Proud Boys elder chat and Tarrio appeared to take credit for it, prosecutors showed jurors simultaneous surveillance video footage that shows defendant Joe Biggs, with  “tools” like Nate Tuck or others like Arthur Jackman and Eddie George. Prosecutors also presented footage of Biggs reaching the Senate chamber with some of these same men in tow. Jurors saw evidence of how Biggs was part of a breach on both the east and west sides of the Capitol, and how he entered the building twice that day. Other evidence, like call logs extracted from the defendants’ phones, showed Tarrio’s phone connecting to Biggs for just under a minute moments before the national ringleader posted “1776” on Parler. It was also around this time that some of the worst violence of the day by rioters against police would explode. 

As for Ethan Nordean, the government relied on extensive frame-by-frame footage from the very front lines of the mob where Nordean so often appeared with Biggs. Nordean was also seen often striking a defiant posture toward police that morning. Before noon, as he marched toward the Capitol he used a bullhorn and told anyone within earshot how police had “just took our boy in” and that police “gotta prove your shit to us now” or the people would “do your goddamn job for you.”

“Our boy” was Tarrio. Tarrio had been arrested two days before for the burning of a Black Lives Matter banner at a historic church in the district in December. 

Nordean’s rantings whipped people up, FBI agent Nicole Miller explained during testimony. Jeremy Bertino had said too that the “normies” looked at Proud Boys like “superheroes” and would follow wherever they went if they led the way. 

By the time Nordean, Biggs, and Rehl got to the Capitol on Jan. 6, Nordean had already told those gathered around him “We represent 1776” and urged people to support and defend the Constitution against enemies foreign and domestic. 

“Let us remind those who have forgotten what that means,” Nordean said. 

On the way to the Capitol, Nordean at one point brought the marching group to a halt and was overheard in footage saying they needed to wait so they could “link up with Alex Jones.” Roughly 15 minutes later and moments before reaching the Capital, Nordean was overheard in another recording saying, “we have a plan. They can adjust.” 

Prosecutors used video from the initial breaches to show Nordean and Biggs standing along metal inaugural fencing in a thick crowd. Both men were touching the fencing, at the very least, in the moments before the fencing was rocked back and forth and ripped up from its embedded posts in the concrete.

Other surveillance footage played for jurors has depicted defendant Zachary Rehl, a Proud Boy chapter president, entering through the same door Biggs had come in at one point. At an earlier point, when he is outside, he is in proximity to Dominic Pezzola and it was around this time that Pezzola was, prosecutors allege, forcefully stealing a police riot shield away from a clearly outnumbered officer. 

Pezzola would use that shield to smash open a window to the senate wing hallway. CCTV footage shows Pezzola later standing on the other side of that window, appearing to look through it for several moments while using what prosecutors and one FBI agent said appeared to be a radio. Pezzola’s defense attorney described his client repeatedly as a “lost puppy dog.” An FBI case agent testified that Pezzola looked like he was searching for someone or something before taking off toward the Capitol crypt. The same agent testified that Rehl would eventually go to the crypt too followed by “tools” of the conspiracy like Proud Boy Isaiah Giddings and others. The same agent said it was Rehl’s voice she was able to identify saying “fuck it, storm the Capitol” in a video from earlier that morning filmed at the Peace Circle just moments before a crowd surged past police barricades there. 

Many of the alleged “tools” tapped by the Proud Boys are awaiting trials all their own. Tuck, for example, has pleaded not guilty to a number of charges including obstruction. A motion hearing for Tuck and several alleged “tools” including Arthur Jackman, Paul Rae, Edward George, and Tuck’s own father, fellow Florida police officer, Kevin Tuck was continued from February to May 5. 

The Proud Boys have, by and large, defended themselves as a fraternity-style drinking club with unserious political aims or interests. They have worked to paint themselves as rough-and-tumble “patriots” akin to the Hells Angels who seek out brotherhood and camaraderie where they can mutually defend America ideologically and peacefully from an increasingly hostile woke population. 

But when the insurrection at the Capitol was over, the prosecution argued text messages showed the group’s real intent. Nordean, for one, was livid with Trump after he released a statement a week after the insurrection saying there was “never a justification for violence.” Where once Proud Boys had been jubilant, Nordean was now in the elders chat with Tarrio, expressing his fury. 

“Fucking disgusting, I’m so pissed,” Nordean wrote in one message.

“What a load of shit that whole thing has been. All Trump did was get us to reveal ourselves to the enemy. Basically butt naked and unarmed against this new regime…. Fuck Trump… Fuck that cocksucker,” he added. 

The defendants may likely present a case to the jury in the days ahead that largely relies on varied claims of victimization of one kind or another by Donald Trump, or assertions that the Proud Boys were good old-fashioned protesters made unwilling pawns of the “deep state” and its legion of spooks. 

Just for Perspective: Investigations Take Longer When Presidents Don’t Wiretap Themselves

A few weeks ago, Peter Baker marked the day that the January 6 investigation has taken as long as the time between the burglary to Nixon’s resignation.

I reacted poorly to Baker’s claim to offer perspective; even on past presidential investigations, he has been overly credulous. And there’s really no comparison between Watergate and January 6, particularly if one compares — as Baker does — time-to-resignation under a still-sane Republican party with time-to-indictment in the MAGAt era. The comparison offers no perspective.

But I thought I’d take Baker up on the challenge, because the Watergate investigation offers a worthwhile way to demonstrate several of the reasons why the January 6 investigation is so much harder. (I plan to make running updates of this post because I expect feedback, particularly from people who know the Watergate investigation better than me, will help me fine tune this explanation.)

Same day arrests

In Watergate, the burglars were arrested in the act of breaking into the DNC headquarters.

On January 6, the cops tried to (and in a relative handful of cases, did) arrest people onsite. But this is the challenge they faced when they tried: Every attempted arrest required multiple officers to focus on one individual rather than the mob of thousands poised to invade the Capitol; every arrest was a diversion from the effort to defend the Capitol, Mike Pence, and members of Congress, with a woefully inadequate force.

In the case pictured above, the cops made a tactical decision to let Garret Miller go. After assuring the cops he only wanted to go home, just 33 minutes later, Miller burst through the East door with the rest of the mob.

There wasn’t a great delay in arrests of January 6 rioters, though. Nicholas Ochs, the first Proud Boy arrested, was arrested on January 7 when his flight home from DC landed in Hawaii.

Q-Shaman Jacob Chansley was arrested on January 8. The first person who would be convicted of a felony by a jury, Guy Reffitt, was arrested on January 15 (his son had tipped the FBI about him before the attack). The first person known to later enter into a cooperation agreement, Jon Schaffer, was arrested on January 17. Miller, pictured above, was rearrested January 20. VIP Stop the Steal associates Brandon Straka and Anthime “Baked Alaska” Gionet — the former of whom did provide and the latter of whom likely provided useful information on organizers to earn misdeamenor pleas — were arrested on January 25 and January 17, respectively. Joe Biggs — now on trial for sedition and an utterly critical pivot between the crime scene and those who coordinated with Trump — was arrested January 20, the same day that Joe Biden would, under tight security, be sworn in as President, the same day Steve Bannon’s last minute pardon was announced.

Kelly Meggs, the Oath keeper who facilitated cooperation among three militias who was convicted with Stewart Rhodes of sedition last November, was arrested on an already growing conspiracy indictment on February 19.

In the first month then, DOJ had already taken steps in an investigation implicating those who worked with Trump. The table below includes the arrests of some of the witnesses who will have an impact on an eventual Trump prosecution. There are others that I suspect are really important, but their role is not yet public.

Trial delays

The Watergate burglars didn’t go to trial right away. They were first indicted on September 15, 1972, 90 days after their arrest. Those who didn’t plead out went on trial January 8, 1973, 205 days after their arrest. Steps that John Sirica took during that trial — most notably, refusing to let the burglars take the fall and reading James McCord’s confession publicly — led directly to the possibility of further investigation. Nixon wouldn’t even commit his key crimes for over two months, in March.

That’s an important reminder, though: the Watergate investigation would have gone nowhere without that trial. That’s unsurprising. That’s how complex investigations in the US work.

Many people don’t understand, though, that there were two major delays before anyone could be brought to trial for January 6. First, COVID protocols had created a backlog of trials for people who were already in pretrial detention and for about 18 months, would limit the number of juries that could be seated. Efforts to keep grand jury members safe created similar backlogs, sometimes for months. In one conspiracy case I followed, prosecutors were ready to supersede several defendants into a conspiracy in April 2021, but did not get grand jury time to do so until September.

To make that bottleneck far, far worse, the nature of the attack and the sheer volume of media evidence about the event led DOJ to decide — in an effort to avoid missing exculpatory evidence that would undermine prosecutions — to make “global production” to all defendants. That required entering into several contracts, finding ways to package up media that started out in a range of different formats, getting special protective orders so one defendant wouldn’t expose personal details of another (though one defendant is or was under investigation for doing just that), then working with the public defenders’ office to effectively create a mirror of this system so prosecutors would have no access to defense filings. It was an incredibly complex process necessitated by the thing — the sheer amount of evidence from the crime scene — that has made it possible to prosecute so many of the crime scene culprits.

Here’s one of the memos DOJ issued to update the status of this process, one of the last global updates. Even at that point over a year after the attack, DOJ was just starting to move forward in a few limited cases by filling in what remained of discovery.

The first felony trial coming out of January 6 was that of Guy Reffitt, which started on March 3, 2022, a full 420 days after the event. Bringing him to trial that was made easier — possible even — because Reffitt never went into the Capitol itself, so didn’t have to wait until all global discovery was complete, and because there were several witnesses against him, including his own son.

The delays in discovery resulted in delays in plea deals too, as most defense attorneys believed they needed to wait until they had seen all of the discovery to make sure they advised their client appropriately.

Lots of people thought this process was unnecessary. But the decision to do it was utterly vindicated the other day, as DOJ started responding to defendants claiming that Tucker Carlson had found video that somehow proved their innocence. As I noted, prosecutors were able to point to the video shown by Tucker Carlson that he said vindicated Jacob Chansley and describe specifically when an unrelated defendant, Dominic Pezzola, had gotten what was effectively Chansley’s discovery.

The footage in question comes from the Capitol’s video surveillance system, commonly referred to as “CCTV” (for “closed-circuit television”). The Court will be familiar with the numerous CCTV clips that have been introduced as exhibits during this trial. The CCTV footage is core evidence in nearly every January 6 case, and it was produced en masse, labeled by camera number and by time, to all defense counsel in all cases.3 With the exception of one CCTV camera (where said footage totaled approximately 10 seconds and implicated an evacuation route), all of the footage played on television was disclosed to defendant Pezzola (and defendant Chansley) by September 24, 2021.4 The final 10 seconds of footage was produced in global discovery to all defense counsel on January 23, 2023. Pezzola’s Brady claim therefore fails at the threshold, because nothing has been suppressed. United States v. Blackley, 986 F. Supp. 600, 603 (D.D.C. 1997) (“For an item to be Brady, it must be something that is being ‘suppress[ed] by the prosecution.’”) (quoting Brady v. Maryland, 373 U.S. 83, 87 (1963)).

While discovery in this case is voluminous, the government has provided defense counsel with the necessary tools to readily identify relevant cameras within the CCTV to determine whether footage was produced or not. Accordingly, the volume of discovery does not excuse defense counsel from making reasonable efforts to ascertain whether an item has been produced before making representations about what was and was not produced, let alone before filing inaccurate and inflammatory allegations of discovery failures.

You may think the thirteen month delay for discovery was a waste of time. But it just prevented Tucker Carlson from being able to upend hundreds of prosecutions.

Obviously, most of the trials that have occurred in the last year won’t directly lead to Trump. Some will. I’ve said for 22 months that I think the Proud Boy trial is critical — and that won’t go to the jury for another two or three weeks yet. There are a number of steps that, I suspect, DOJ has been holding on pending the results of that trial, because so much else rides on it.

The Stewart Rhodes trial was likely helpful. I’ve suggested DOJ may use Danny Rodriguez as a way to tie Trump and Rudy Giuliani to the near-murder of Michael Fanone on an aid-and-abet theory. And there are a few more sleeper cases that seem to have greater significance than what went on at the Capitol that day.

Update: On May 4, 2023, a jury found four of the five Proud Boy leaders guilty of sedition. This trial was an important precursor for other investigative steps.

The legal uncertainty

In the Nixon case, there were fairly well established crimes: burglary, and obstruction of a criminal investigation.

I won’t say too much on this point, because I already have. But in this case, prosecutors were (and undoubtedly still are) trying to apply existing statute to an unprecedented event. One law they’ve used with a lot of the rioters — civil disorder — was already being appealed elsewhere in the country when prosecutors started applying to the January 6. Since then its legal certainty has been all-but solidified.

Far more importantly, the way prosecutors have applied obstruction of an official proceeding, 18 USC 1512(c)(2), has been challenged (starting with Garret Miller–the guy in the aborted arrest photo above) for over a year. That’s precisely the crime with which the January 6 Committee believes Trump should be charged (I advocated the same before their investigation even started in earnest); but I’m not sure whether Jack Smith will wait until the appeals on the law get resolved.

Still, DOJ has spent a great deal of time already trying to defend the legal approach they’ve used with the investigation.

Update: On April 7, the DC Circuit reversed Carl Nichols, holding that 18 USC 1512(c)(2) does not require a documentary component. That opinion raised new questions about the meaning of “corrupt purpose” under the statute. The Circuit rejected Fischer’s request for a rehearing, clearing the possibility of an appeal to SCOTUS. On May 11, the DC Circuit heard Thomas Robertson’s challenge to the same statute. Its decision in that case will almost certainly be the first DC Circuit ruling on “corrupt purpose” under the statute.

The insider scoop

For all the delays in setting up the January 6 Committee, it (and an earlier Senate Judiciary Committee inquiry into Jeffrey Clark’s efforts to undermine the vote) got started more quickly than Sam Ervin’s committee, which first started 11 months after the burglary.

Yet it only took Ervin’s Senate investigators about two months to discover their important insider, whose testimony would provide critical to both Congressional and criminal investigators. On July 13, 1973, Alexander Butterfield first revealed the existence of the White House taping system.

For all the January 6 Committee’s great work, it wasn’t until her third interview, on May 17, 2022, before Cassidy Hutchinson began to reveal more details of Trump’s unwillingness to take steps against his supporters chanting “Hang Mike Pence.” Even Hutchinson’s remarkable public testimony on June 28, 2022, when she described Trump demanding that his supporters be allowed to enter the Ellipse rally with the weapons Secret Service knew them to be carrying, is not known to have provided the kind of Rosetta stone to the conspiracy that disclosure of Nixon’s White House taping system did. In later testimony, Hutchinson provided key details about a cover-up. And her testimony provided leverage for first J6C and then, in at least two appearances, grand jury testimony from Pat Philbin and Pat Cipollone, the latter appearance of which came with an Executive Privilege waiver on December 2, 2022, 23 months after the attack.

Cell-xploitation

This brings us to the biggest difference in the timeline. Once the Senate and prosecutors learned that Nixon had effectively wiretapped himself, it turned the investigation into a fight over access to those materials.

The parts of the draft Nixon indictment that have been released describe a fairly narrow conspiracy. The proof against Nixon would have comprised, in significant part:

  • The report John Dean did disclaiming a tie to the break-in
  • Proof of payments to Howard Hunt
  • White House recordings, primarily from several days in March 1973, proving that Nixon had the payments arranged

That is, in addition to the James McCord confession and John Dean’s cooperation, any charges against Nixon relied on recordings Nixon himself had made, the import of which were made all the more salient with the disclosure of the 18-minute gap.

One thing likely made the January 6 prosecution easier: The sheer amount of data available to prosecutors using subpoenas. We have yet to see any of that with regards to organizers (though we know that Denver Riggelman, with far weaker subpoena power, was able to do a detailed map of ties between Trump, organizers, and mobsters).

There will undoubtedly be a great deal of evidence obtained from cloud companies. The only hint of this process we know about yet involves the emails from Jeffrey Clark, Ken Klukowski, John Eastman, and one other person, who is not a lawyer. DOJ had obtained emails from them with a warrant by last May. They have undoubtedly done the same for dozens of other subjects (beyond those arrested from the crime scene, where they have done so as well), but we won’t know about it until we see it in indictments.

But even that is not always easy. DOJ has spent seven months so far getting Peter Navarro to turn over emails from his Proton Mail account covered by the Presidential Records Act. Judge Colleen Kollar-Kotelly just issued an order requiring him to turn the emails over, but it’s not clear whether he’ll further obstruct this effort to simply enforce his normal record-keeping obligations.

But one challenge that didn’t exist fifty years ago makes prosecutors jobs much harder: the need to obtain and exploit individual cell phones to obtain encrypted communications — things like Signal and Telegram chats — not otherwise available. In Enrique Tarrio’s case, simply breaking into the phone took most of a year. In Rudy Giuliani’s case (his phones were first obtained in the Ukraine investigation starting on Lisa Monaco’s first day on the job, but the results would be available with a separate warrant here), it took a nine month Special Master review. In Scott Perry’s case, his speech and debate claims will be appealed to SCOTUS. The table below shows whose phones we know to have been obtained, including how long it took to exploit the phones to the extent that became public (It does not show known cloud content obtained; much of that remains secret.)

The point being, even for the Proud Boys and Oath Keeper cases, you had to get one phone, use it to get probable cause on the next guy, then get his phone to use it to get probable cause on the next guy. This process is very obviously at the stage where both Alex Jones and Roger Stone would be in prosecutors’ sights, as well as much of the fake elector plot. But that’s still several steps away from people like Mark Meadows, who would necessarily be involved in any Trump prosecution.

Privilege

When DOJ subpoenaed the two Pats last summer, multiple media outlets reported that subpoenaing the White House counsels was particularly “aggressive.”

Two top lawyers who worked in the White House under former President Donald Trump have been subpoenaed to appear before a federal grand jury investigating the events leading up to the Jan. 6, 2021, attack on the Capitol, people familiar with the matter said, in the latest sign that the Justice Department’s probe is entering a more aggressive phase.

Mr. Trump’s White House counsel Pat Cipollone and his deputy Pat Philbin received subpoenas in recent days seeking documents and testimony, the people said. [my emphasis]

But as coverage of, first, Mike Pence’s two aides and, then, the two Pats being compelled to testify about topics Trump had claim was privileged noted, it’s not actually a new or particularly aggressive thing to ask White House counsels to testify. Indeed, John Dean’s cooperation — the most important part of holding Nixon accountable — arose after he had gotten himself deeper and deeper into Nixon’s cover-up.

And in spite of the Nixon precedent that said there were limits to Executive Privilege, and in spite of the DC Circuit ruling that the import of investigation January 6 overcame Trump’s Executive Privilege claims, even with Congress, Trump has used — and DOJ has been obligated to navigate — a series of privilege claims to delay the investigation.

As I’ve noted, there are close to thirty key witnesses or subjects whose attorney-client claims have to be carefully addressed to avoid blowing both that case and those of any downstream investigation.

In the case of Scott Perry, DOJ has spent six months trying to get into his phone. That delay is not a sign of lassitude. On the contrary, it’s a sign they’re including subjects who very rarely get investigated in the investigation.

Update: On April 21 and 22, seven-plus months after DOJ seized his phone (which is often how long exploitation takes), Boris Epshteyn spent two days interviewing with Jack Smith’s prosecutors though not — at least by description — appearing before the grand jury. He played a key role in both January 6 and the stolen documents case.

Cooperating witnesses

According to this timeline, John Dean started cooperating on April 6, 1973, almost ten months after the arrest of the burglars, though just a few weeks after the day of Nixon’s crimes as alleged in the draft indictment.

As noted on this table, there were people who entered into cooperation agreements more quickly than that, but it’s not clear who of them will help prosecute those closer to Trump. As I keep noting, I’m really dubious of the value of Brandon Straka’s cooperation.

There are maybe 30 to 35 known known cooperators in January 6, but most only cooperated against their buddies, and most of those prosecutions didn’t much build prosecutions related to Trump.

This table only includes a few of the cooperating witnesses — the first (Schaffer, the nature of whose cooperation is still totally obscure), the dubious cooperation of Straka and, potentially, Gionet, the most important of at least five Proud Boy cooperators, Jeremy Bertino, and the most important of at least eight Oath Keeper cooperators, Joshua James.

James, along with a few of the other Oath Keeper cooperators, might help prosecute Roger Stone. But there is no one on this list who has the goods on Trump, like John Dean did. No one even close.

That said, we wouldn’t necessarily know if someone closer to Trump were cooperating. Even some people who are secondary cooperators remain entirely obscure, both that they are cooperating, and the extent of their knowledge. I suspect several people are cooperating — I even have specific people in mind, based on other details. But we won’t know anytime soon if someone has flipped on Donald Trump.

And given the ferociousness of his supporters and the aggressiveness of Trump’s obstruction that’s a good thing.

Update, May 26: I’ve updated the table below to reflect the Oath Keeper sentences and the Proud Boy verdict.

Beryl Howell’s Biggest Secret: Whether Bill Barr Killed the Egyptian Bank Investigation

As I noted, Judge Beryl Howell ended her tenure as DC’s Chief Judge yesterday decisively, ruling that Evan Corcoran must testify about topics she has found to be crime-fraud excepted.

By dint of age and tenure, Howell was appointed Chief Judge just in time to preside over the most remarkable set of investigations against a sitting and former President: the Mueller investigation and certain follow-on investigations, the January 6 investigation, and the stolen documents investigation.

And now Jeb Boasberg gets to pick up her work. Like Howell, he’s an Obama appointee; he already did a stint presiding over the FISA Court.

Howell’s decision requiring Corcoran to testify elicited all sorts of superlative language about the import of the decision. I’ll return to the number of other Trump lawyers against whom Howell has already approved legal process. The Corcoran decision really is not that unusual in the twin Jack Smith investigations. Or even in the other grand juries over which Howell has presided.

Indeed, the fruits of a warrant Howell approved on August 1, 2017 as part of an investigation into suspicious payments (especially those from Viktor Vekelselberg) to Michael Cohen’s Essential Consultants’ bank account, will likely yield Donald Trump’s first criminal indictment next week. Referrals of part of the resulting investigation to SDNY led to Cohen’s 2018 prosecution, including on the hush payments scheme. NYC has started making security preparations for Trump’s arrest on the same campaign finance scheme next week.

To repeat: a fairly uncontroversial decision Howell made six years ago — to approve the first of a series of warrants targeting Trump’s personal lawyer, Michael Cohen — will have played a part if and when Alvin Bragg indicts Trump next week.

Howell’s colleagues razzed her yesterday about all the secrets she may keep from the past seven years.

Howell seemed to freeze in her seat as the most senior jurist on the court, Judge Paul Friedman, publicly described her still-secret rulings in grand jury-related matters, pointing to press accounts of Howell ruling in favor of Trump in a contempt dispute over his office’s response to a grand jury subpoena for classified records and against Trump on an effort to assert attorney-client privilege in the same probe.

“What fascinating issues!” Friedman declared wryly as Howell remained stone-faced on the dais. “We’d all love to read her opinions, but we can’t,” he said to laughter.

Friedman did note, however, that Howell had issued 100 secret grand jury opinions during her seven-year term.

Another colleague, Judge Tanya Chutkan, also alluded to Howell’s work resolving disputes related to the court’s grand juries over the past seven years.

“There’s so much work Chief Judge Howell has done that we may never know about,” Chutkan said.

In an interview with Zoe Tillman, though, Howell suggested she expects some of it will be unsealed.

Howell said she was still processing the past seven years.

“A lot of my work in the grand jury arena remains under seal, so it is going to be very hard to say what my legacy will be until after some of that work gets unsealed and people are able to evaluate it,” she said.

I expect a good deal of her recent work will be unsealed, in fairly short order.

It bears reminding, though, that Judge Howell attempted to share information about what she had been overseeing in a grand jury with the House Judiciary Committee in 2019. In a 75-page opinion invoking the Federalist papers and defending separation of powers, Howell issued a ruling that should have been uncontroversial: that the House could have grand jury materials in contemplation of impeachment.

In her opinion, Howell cited a number of the things the House might get with grand jury testimony. They included Paul Manafort’s description of how Trump ordered him to chase the documents stolen from Hillary.

Again, the Mueller Report recounts an incident when then-candidate Trump spoke to associates indicating that he may have had advance knowledge of damaging leaks of documents illegally obtained through hacks by the Russians, stating “shortly after WikiLeaks’s July 22, 2016 release of hacked documents, [Manafort] spoke to Trump [redacted]; Manafort recalled that Trump responded that Manafort should [redacted] keep Trump updated. Deputy campaign manager Rick Gates said that . . . Manafort instructed Gates [redacted] status updates on upcoming releases. Around the same time, Gates was with Trump on a trip to an airport [redacted], and shortly after the call ended, Trump told Gates that more releases of damaging information would be coming.” Id. at II-18 (footnotes omitted) (redactions in original, with citation in footnote 27 redacted due to grand jury secrecy).

They included Don Jr’s refusal to testify to the grand jury about the June 9 meeting.

[A] discussion related to the Trump Tower Meeting contains two grand jury redactions: “On July 12, 2017, the Special Counsel’s Office [redacted] Trump Jr. [redacted] related to the June 9 meeting and those who attended the June 9 meeting.” Id. at II-105 (redactions in original).

They included Manafort’s details of his discussions with Konstantin Kilimnik.

The Mueller Report further recounts evidence suggesting that then-candidate Trump may have received advance information about Russia’s interference activities, stating:

Manafort, for his part, told the Office that, shortly after WikiLeaks’s July 22 release, Manafort also spoke with candidate Trump [redacted]. Manafort also [redacted] wanted to be kept apprised of any developments with WikiLeaks and separately told Gates to keep in touch [redacted] about future WikiLeaks releases. According to Gates, by the late summer of 2016, the Trump campaign was planning a press strategy, a communications campaign, and messaging based on the possible release of Clinton emails by WikiLeaks. [Redacted] while Trump and Gates were driving to LaGuardia Airport. [Redacted], shortly after the call candidate Trump told Gates that more releases of damaging information would be coming.

Id. at I-53–54 (footnotes omitted) (redactions in original, with citation in referenced footnote 206 redacted due to grand jury secrecy).

But Bill Barr’s DOJ, after having challenged the uncontroversial notion that the House should be permitted to receive what was obviously an impeachment referral, appealed to the DC Circuit, lost, and then stalled long enough to outlast Congress. Bill Barr effectively refused to let Congress receive and act on an impeachment referral. But Howell did her constitutionally mandated part.

It’s an action DOJ took during precisely the period when Barr was stalling long enough to outlast Congress that, in my mind, is the biggest secret Howell takes from her tenure: What happened with an investigation into a suspected $10 million donation in September 2016 from an Egyptian-owned bank that allowed Trump to stay in the race when he was running out of funds. Though aspects of the investigation were dribbled out in grand jury unsealings from Howell along the way, CNN first confirmed the Egyptian bank angle in 2020.

For more than three years, federal prosecutors investigated whether money flowing through an Egyptian state-owned bank could have backed millions of dollars Donald Trump donated to his own campaign days before he won the 2016 election, multiple sources familiar with the investigation told CNN.

The investigation, which both predated and outlasted special counsel Robert Mueller’s probe, examined whether there was an illegal foreign campaign contribution. It represents one of the most prolonged efforts by federal investigators to understand the President’s foreign financial ties, and became a significant but hidden part of the special counsel’s pursuits.

The investigation was kept so secret that at one point investigators locked down an entire floor of a federal courthouse in Washington, DC, so Mueller’s team could fight for the Egyptian bank’s records in closed-door court proceedings following a grand jury subpoena. The probe, which closed this summer with no charges filed, has never before been described publicly.

Prosecutors suspected there could be a link between the Egyptian bank and Trump’s campaign contribution, according to several of the sources, but they could never prove a connection.

Shortly after the investigation was killed, Barr went up to Hillsdale College and ranted about prosecuting corruption.

This criminalization of politics is not healthy. The criminal law is supposed to be reserved for the most egregious misconduct — conduct so bad that our society has decided it requires serious punishment, up to and including being locked away in a cage. These tools are not built to resolve political disputes and it would be a decidedly bad development for us to go the way of third world nations where new administrations routinely prosecute their predecessors for various ill-defined crimes against the state. The political winners ritually prosecuting the political losers is not the stuff of a mature democracy.

The Justice Department abets this culture of criminalization when we are not disciplined about what charges we will bring and what legal theories we will bless. Rather than root out true crimes — while leaving ethically dubious conduct to the voters — our prosecutors have all too often inserted themselves into the political process based on the flimsiest of legal theories. We have seen this time and again, with prosecutors bringing ill-conceived charges against prominent political figures, or launching debilitating investigations that thrust the Justice Department into the middle of the political process and preempt the ability of the people to decide.

This criminalization of politics will only worsen until we change the culture of concocting new legal theories to criminalize all manner of questionable conduct. Smart, ambitious lawyers have sought to amass glory by prosecuting prominent public figures since the Roman Republic. It is utterly unsurprising that prosecutors continue to do so today to the extent the Justice Department’s leaders will permit it.

Even at the time — with the Mike Flynn, Roger Stone, and Paul Manafort cases — it was clear that Barr was engaged in fairly unprecedented corruption of DOJ to protect Trump. Since then, we’ve learned of more. Most notably, as we await a potential Bragg indictment, Geoffrey Berman described how, after Cohen pled guilty in the hush payment case, Barr not only shut down any investigation of Trump on the charge, but attempted to reverse Cohen’s own prosecution.

While Cohen had pleaded guilty, our office continued to pursue investigations related to other possible campaign finance violations. When Barr took over in February 2019, he not only tried to kill the ongoing investigations but—incredibly—suggested that Cohen’s conviction on campaign finance charges be reversed.

Barr summoned Rob Khuzami in late February to challenge the basis of Cohen’s plea as well as the reasoning behind pursuing similar campaign finance charges against other individuals. Khuzami was told to cease all investigative work on the campaign finance allegations until the Office of Legal Counsel, an important part of Main Justice, determined there was a legal basis for the campaign finance charges to which Cohen pleaded guilty—and until Barr determined there was a sufficient federal interest in pursuing charges against others.

Barr even attempted to put supervision of the case in the hands of Richard Donoghue, as he did do with the Rudy Giuliani case.

Given that Barr didn’t think Trump should be prosecuted for the Cohen illegal contribution case, there’s no telling what he thought of the suspected Egyptian bank donation. Certainly, he was in complete control of DC USAO at the time, if he wanted to shut down an otherwise viable investigation.

We are, as Howell herself said, likely to know much of what she has been doing for the last two years. But her biggest secret is whether Bill Barr prevented DOJ from fully attempting to learn whether Donald Trump was beholden to Egypt or some other foreign country for the entirety of the time he served as President.

Evan Corcoran: You’re the Next Contestant on Trump’s Crime-Fraud Reality Show

Multiple outlets are reporting that Judge Beryl Howell, in what may be her last ruling as Chief Judge, has ruled that Evan Corcoran must testify about his conversations with Trump.

This follows the news, from ABC, that Jack Smith’s team is particularly interested in a conversation Trump and Corcoran had on June 24, 2022, after prosecutors sent a subpoena to Trump Organization for surveillance footage that would show Walt Nauta moving boxes out of the storage room where the FBI would later find 70 classified documents. As I noted last year, in the early weeks of Trump’s efforts to stall the investigation, there was a discrepancy about what date this subpoena was served, which I suspected might suggest DOJ had to file subpoenas to two different entities before Trump agreed to comply.

So now we’ve ended up where it was clear we were going to end up in September, with another of Trump’s lawyers whose communications with him are found to be crime fraud excepted.

Corcoran is in good company. He is probably at least the fourth Trump lawyer whose comms were deemed crime-fraud excepted in the last five years. The others are:

Indeed, the first such instance, the conversation Cohen recorded of Trump agreeing to a hush payment, will likely lead to the first (or possibly second, depending on what Fani Willis is doing) indictment of Trump, perhaps early next week.

With both Cohen and Rudy, the lawyers withdrew objections after Special Master Barbara Jones deemed the comms not to be privileged.

Corcoran should feel pretty good, though. He may be the first Trump crime-fraud contestant who manages to avoid legal exposure himself.

That’s got to count for something in the Trump Crime-Fraud Reality Show, right?

 

The New Investigation into Bannon and Boris Buried Under Bannon’s Bluster

For at least six years — from Rick Gates sharing stuff with Maggie as a way to share it with Roger Stone, to Stefan Passantino sharing Cassidy Hutchinson’s damaging testimony because “Maggie’s friendly to us. We’ll be fine” — people in Trump’s camp explicitly state they go to Maggie Haberman because she’s useful to their goals. The results are obvious, such as the time when Maggie buried the news that Trump had spoken to Vladimir Putin about adoptions immediately before crafting a bullshit cover story for the June 9 meeting that claimed it was all about adoptions; Maggie buried the story by repeating Trump’s threats to fire Jeff Sessions first.

That’s why it’s useful to look at two damaging details Maggie buried in what purports to be a profile of Boris Epshteyn, the non-Breaking News parts of which I covered here and other parts that WaPo covered in November.

First, NYT buried the news that SDNY has opened an investigation into the crypto currency scam Epshteyn and Steve Bannon grifted loyal Trump supporters with beneath not one, not two, but three flashy quotes about Epshteyn from Bannon himself, followed by 22 paragraphs, many focused on how Boris charged campaigns for keeping them on Trump’s good side, then one  paragraph that included 17 words of tortured Enhanced Euphemism Techniques in an 83 word paragraph, only then to reveal that Bannon is under investigation for the crypto currency scheme, too.

A cryptocurrency with which [Epshteyn] is involved has drawn scrutiny from federal prosecutors.

[snip]

“Boris is a pair of heavy hands — he’s not Louis Brandeis,” said Stephen K. Bannon, a close ally of Mr. Epshteyn and former adviser to Mr. Trump, referring to the renowned Supreme Court justice. But Mr. Trump, he said, “doesn’t need Louis Brandeis.”

“You need to be a killer, and he’s a killer,” Mr. Bannon added.

But Mr. Epshteyn’s attacking style grates on other people in Mr. Trump’s circle, and he has encouraged ideas and civil lawsuits that have frustrated some of Mr. Trump’s lawyers, like suits against the journalist Bob Woodward and the Pulitzer Prize committee. His detractors see him as more of a political operative with a law license than as a provider of valuable legal advice.

“As soon as anybody starts making anything happen for Trump overall, the knives come out,” Mr. Bannon said. He described Mr. Epshteyn as “a wartime consigliere.”

[21 paragraphs, many focused on Epshteyn’s dodgy consulting gig]

[This paragraph, in which 17 tortured words out of 83 are Enhanced Euphemism Techniques:

]

More recently, a pro-Trump cryptocurrency that Mr. Epshteyn and Mr. Bannon are involved with managing is facing an inquiry from federal prosecutors in the Southern District of New York, according to a person familiar with the matter.

Breaking: A key source for this story, Steve Bannon, is under investigation for the shameless grift of printing pro-Trump money, then bilking Trump supporters every time they bought it.

Compare how ABC reported the same story when they covered it a few hours later:

A cryptocurrency linked to former Trump White House strategist Steve Bannon and Trump adviser Boris Epshteyn has caught the attention of federal prosecutors in New York, who have started looking into it, sources familiar with the matter told ABC News.

News of federal prosecutors’ interest in the Bannon and Epshteyn-fronted cryptocurrency comes on the heels of an ABC News investigation into the cryptocurrency, which looked at allegations of internal chaos and mismanagement by the two high-profile Trump associates over the past year, including accusations that they’ve failed in their commitment to continue to donate portions of the coin’s proceeds to charities.

The New York Times was the first to report the news of the inquiry from federal prosecutors.

MORE: Internal chaos plagues Bannon-fronted $FJB cryptocurrency, critics say
The cryptocurrency — dubbed $FJB from the shorthand version of the vulgar MAGA expression “F— Joe Biden” and now officially said to stand for Freedom Jobs and Business — has lost 95% of its value amid internal turmoil, at least in part due to an industry-wide downturn.

Critics say $FJB represents the latest in a string of ill-fated efforts to leverage MAGA support for financial returns — particularly on the part of Bannon, who in September pleaded not guilty to unrelated charges that he defrauded donors with the promise of building a wall on the U.S.-Mexico border.

Acquired by Bannon and Epshteyn from original lead creator Grant Tragni and two other co-founders in late 2021, $FJB was promoted as a rejection of President Joe Biden and an alternative financial institution for conservatives by the two MAGA influencers — who also emphasized that part of the currency’s 8% transaction fee would go to charities including the Wounded Warriors Project, Tunnels To Towers, Semper Fi and Patriot Freedom Project.

But according to a spokesperson for the Wounded Warriors Project, as of January this year, no donations had been made by $FJB to the organization since Bannon and Epshteyn took over in December 2021. Wounded Warriors told ABC News that they had only received the one donation from $FJB in November 2021 — prior to Bannon and Epshteyn’s involvement.

NYT, apparently, thought it more important to string out a bunch of quotes from a suspected serial fraudster — “heavy hands — he’s not Louis Brandeis,” … “You need to be a killer, and he’s a killer,” … “a wartime consigliere” — rather than ask the serial fraudster if he had knowingly defrauded a bunch of MAGAts or at least describe how he exploited Trump’s loyal followers. (Note, this scam is also covered in Denver Riggelman’s The Breach, which is better than I thought it’d be.)

The other thing buried twelve paragraphs into a story covering stuff many people have already covered is that Ephsteyn tried to retroactively claim he was providing legal advice after the search of Mar-a-Lago.

After the search last summer of Mar-a-Lago by F.B.I. agents looking for classified documents still in Mr. Trump’s possession, Mr. Epshteyn retroactively changed his agreement with the political action committee. The agreement, which had been primarily for communications strategy, was updated to include legal work, and to say it covered legal work since the spring of last year, a campaign official said. His monthly retainer doubled to $30,000.

But he dropped a separate effort to have Mr. Trump sign a letter retroactively designating him as a lawyer for Mr. Trump personally, dating to March of last year, soon after Mr. Trump’s post-presidency handling of classified documents became an issue. The letter specifically stated that their communications would be covered by attorney-client privilege, multiple people familiar with the request said.

Now, credit where credit is due. As I noted when I described Maggie’s recent solo foray into campaign finance journalism, after a slew of stories in which Maggie called Epshteyn Trump’s “in-house counsel,” once she looked at the FEC documents, she described that Boris had billed all this as strategic consulting.

NYT has, in various stories including Maggie in the byline, described Epshteyn’s role in the stolen documents case as “an in-house counsel who helps coordinate Mr. Trump’s legal efforts,” “in-house counsel for the former president who has become one of his most trusted advisers,” and “who has played a central role in coordinating lawyers on several of the investigations involving Mr. Trump.” Another even describes that Epshteyn “act[ed] as [a] lawyer [] for the Trump campaign.” The other day, Maggie described his role instead as “broader strategic consulting.”

In this story, the story that reveals that after the search of MAL Epshteyn attempted to retroactively declare that he had been providing legal advice all along, Maggie calls him the, “self-described in-house counsel.”

I guess we know who was describing him as “in-house counsel” for all those stories stating as fact that he was the in-house counsel?

Epshteyn’s attempted retroactive claim that he had been providing legal services is not a minor detail.

Effectively what Epshteyn did was, after playing a key role in Trump’s coup attempt followed by a year of grifting off his access to Trump, he swooped back into Trump’s orbit when it became public that Trump had been fighting to withhold documents from the government; who knows what more details Ephsteyn had about all the highly sensitive documents stored in a leatherbound box in his office when he swooped in. And over the course of the next five months, Ephsteyn brought in a group of lawyers who are highly inappropriate to advise on a classified documents case, including Evan Corcoran, who treated a potential Espionage Act case as an 18 USC 1924 case, Chris Kise, fresh off his work for the Maduro regime, and, for a bit part playing the fall gal, former OAN host Christina Bobb. Some of these people are accomplished lawyers, but they’re not remotely appropriate to this investigation.

It’s unclear whether Epshteyn assembled such an inappropriate team because he wants Trump to go down, with all the chaos that will cause, because he’s stupid and wildly unsuited to this role, or because Trump was desperate. But after ensuring there was no one who could be called an adult in the terms of Espionage Act investigations left in the room, Epshteyn then reportedly masterminded a shell game on June 3 in which Trump boarded his jet to Bedminster at the moment that Corcoran handed over a packet of documents that Bobb claimed, with no way of knowing, constituted everything Trump had left.

“Wartime consiglieres,” as Bannon called his brother in cryptocurrency scam, don’t orchestrate such transparently stupid schemes.

And then after DOJ called Trump’s bluff with a search of Mar-a-Lago on August 8, according to this story, Epshteyn attempted to make all the conversations he had in the run-up to that search privileged, retroactively. Epshteyn appears not to have considered this legal advice until the moment it became clear his shell game had failed.

And given that some of Maggie’s best sources — including some of the sources who’ve long had the knives out for Epshteyn — have chatted with prosecutors since the search, prosecutors likely know that Epshteyn only belatedly decided he had been playing a lawyer all along. Maybe they even found it out before they seized Ephsteyn’s phone in early September under a January 6 warrant. Or maybe some of the recent activity in the stolen documents case, including the effort to get crime-fraud testimony from Corcoran, aims to shore up a warrant for stolen documents-related Epshteyn phone content that the FBI already has in its possession.

Indeed, this new detail explains something else in the story, something that NYT and others have already covered. Among the questions that Bobb and Corcoran and others have gotten from prosecutors pertains to Epshteyn’s attempt to set up a common-interest agreement.

Prosecutors investigating Mr. Trump’s handling of classified material have looked at whether Mr. Epshteyn improperly sought a common-interest agreement among witnesses as a shield against the investigation, the people familiar with the matter said.

Til now, this detail has always been reported without explanation of why it would be wrong — why it would deviate from normal white collar practice. The line of questioning didn’t make sense to me. It makes far more sense, however, if Epshteyn did so after his shell game blew up on him. It makes more sense if Epshteyn was trying to shield his own behavior, just as retroactively declaring his advice legal advice would do.

The question is why. Why Epshteyn advised Trump to take such a catastrophically stupid approach to stolen classified documents. By embedding this breaking news in a profile about the way Epshteyn monetized access to Trump, NYT seems to suggest that’s the motive (and I’ve heard similar descriptions from others): Epshteyn was just giving Trump what he wanted when no one else would as a way to make sure his other grift could continue.

That’s not the only possible motive, though: there are other more obvious reasons someone who failed to get clearance, even in Trump’s White House, might want to help Trump hoard highly classified documents (NYT reports that “the issue has been resolved”).

The question of why Epshteyn did all this has likely become closely intertwined with prosecutors’ attempts to assess why Trump withheld the documents in the first place, as well as attempts to understand why two separate searches found 47 empty classified document folders.

Tim Parlatore — another lawyer who is woefully ill-suited for a stolen documents case — is quoted by the NYT stating that the rest of the lawyers Epshteyn has assembled will be good so long as Epshteyn, himself, doesn’t become a target, as if the seizure of his phone is not some kind of tip off.

“Boris has access to information and a network that is useful to us,” said one of the team’s lawyers, Timothy Parlatore, whom Mr. Epshteyn hired. “It’s good to have someone who’s a lawyer who is also inside the palace gates.”

Mr. Parlatore suggested that he was not worried that Mr. Epshteyn, like a substantial number of other Trump lawyers, had become at least tangentially embroiled in some of the same investigations on which he was helping to defend Mr. Trump.

“Absent any solid indication that Boris is a target here, I don’t think it affects us,” Mr. Parlatore said.

I don’t even know what to make of Parlatore’s quote explaining that Boris’ network “is useful to us.” To do what? Isn’t the goal to keep Trump out of prison?

But I do know that none of these people seem to be sufficiently worried about 18 USC 793(g), the built-in conspiracy clause in the Espionage Act. Even if Epshteyn’s motives are no more ignoble than attempting to monetize his access to Trump — and, again, his motives are likely as much a focus as Trump’s at this point — that doesn’t exempt him from exposure to conspiracy charges himself if he agreed to help Trump hoard the classified documents. Indeed, adding Epshteyn as a co-conspirator might have several advantages for prosecutors.

Epshteyn is, as this profile and others have laid out, someone monetizing access to Trump. The more salient detail, for the investigation, is why Epshteyn only retroactively tried to protect his own involvement in the alleged attempt to withhold classified documents.

How Tucker Carlson Duped the People His Producer Called “Dumb … Cousin-Fucking … Terrorists”

In response to Tucker Carlson’s misleading propaganda claiming that Jacob Chansley was just a peaceful tourist escorted at all times by his own dedicated cop, a number of January 6 defendants are demanding mistrials because of claimed Brady violations.

Dominic Pezzola’s attorneys, for example, argued that the video released by Tucker shows that the Senate never had to recess, which (they claim) undermines the government’s obstruction claim against the Proud Boys.

Never during this trial has there been any evidence of any raucous or extremely disruptive or violent demonstration in the Senate chamber. (There have been a few images of demonstrators sitting on chairs or standing in the well of the Senate.)

Then came the Tucker Carlson show on the evening of March 6, 2023.

On March 6, Tucker Carlson released shocking footage from January 6th, 2021 that showed “QAnon Shaman” Jacob Chansley walking calmly through the halls of the Capitol with two Capitol Police officers. At one point, one of the officers appears to try opening a door or elevator, and then turns and leads Chansley in another direction. Later in the video clips, Chansley is seen walking past nine police officers gathered in a hallway intersection. Chansley and his police escorts walk right past the nine officers without any resistance.

And then the Tucker Carlson show presented footage of officers calmly escorting Chansley (and apparently other protestors) into the Senate chamber. The Washington Post wrote that Albert Watkins, Chansley’s attorney through sentencing in November 2021, said he had been provided many hours of video by prosecutors, but not the footage which Carlson aired Monday night. He said he had not seen video of Chansley walking through Capitol hallways with multiple Capitol Police officers.

“What’s deeply troubling,” Watkins said Tuesday, “Is the fact that I have to watch Tucker Carlson to find video footage which the government has, but chose not to disclose, despite the absolute duty to do so. Despite being requested in writing to do so, multiple times.” [emphasis original]

The government’s response lays out that, in fact, both Chansley’s attorneys and Pezzola’s received this video in global discovery (there was a 10-second segment not released until January that was not exculpatory, which likely shows a Senator fleeing even as Pezzola stands just feet away — see below).

Pezzola’s motion describes “shocking footage” of Chansley “walking calmly through the halls of the Capitol” with two police officers who purportedly “escort[] Chansley (and apparently other protestors) into the Senate chamber.” ECF 679, at 4. Pezzola quotes Chansley’s former attorney for the proposition that the government “withheld” this footage from discovery in Chansley’s and Pezzola’s cases. Id. The footage is not shocking, and it was not withheld from Pezzola (or Chansley, in any material respect, for that matter).

The footage in question comes from the Capitol’s video surveillance system, commonly referred to as “CCTV” (for “closed-circuit television”). The Court will be familiar with the numerous CCTV clips that have been introduced as exhibits during this trial. The CCTV footage is core evidence in nearly every January 6 case, and it was produced en masse, labeled by camera number and by time, to all defense counsel in all cases.3 With the exception of one CCTV camera (where said footage totaled approximately 10 seconds and implicated an evacuation route), all of the footage played on television was disclosed to defendant Pezzola (and defendant Chansley) by September 24, 2021.4 The final 10 seconds of footage was produced in global discovery to all defense counsel on January 23, 2023. Pezzola’s Brady claim therefore fails at the threshold, because nothing has been suppressed. United States v. Blackley, 986 F. Supp. 600, 603 (D.D.C. 1997) (“For an item to be Brady, it must be something that is being ‘suppress[ed] by the prosecution.’”) (quoting Brady v. Maryland, 373 U.S. 83, 87 (1963)).

While discovery in this case is voluminous, the government has provided defense counsel with the necessary tools to readily identify relevant cameras within the CCTV to determine whether footage was produced or not. Accordingly, the volume of discovery does not excuse defense counsel from making reasonable efforts to ascertain whether an item has been produced before making representations about what was and was not produced, let alone before filing inaccurate and inflammatory allegations of discovery failures.

3 The productions excluded a limited set of footage that the Capitol Police designated as security information, such as X-Ray machine feeds and views of evacuation routes and Sensitive Compartmented Information Facility (“SCIF”) office lobbies.

4 The remaining CCTV was disclosed in global discovery on January 23, 2023. It similarly – as with other CCTV – depicts defendant Chansley outside of the Senate Chamber with law enforcement, after his initial breach of the Chamber.

It’s hard to overstate how much this exchange vindicates DOJ’s decision to make all the January 6 video available to all defendants, which delayed trials for probably six months, but which ensured that at the moment defendants like Chansley and Pezzola started claiming they didn’t get something, DOJ could point to when they in fact did receive it.

DOJ rebuts Pezzola’s argument that any of this is exculpatory, relying, in part, on former Army Staff Sergeant Joe Biggs’ description of overwhelming the Capitol.

Pezzola’s argument seems to be that the snippets of Chansley’s movements that were televised by Carlson establish that there was no emergency necessitating the suspension of proceedings. The televised footage lacks the context of what occurred before and after the footage. Chansley entered the building as part of a violent crowd that gained access as a result of Pezzola’s destruction of a window and he traveled with Pezzola during the initial breach. And just as Defendant Biggs had recounted in a recorded statement after January 6, 2021, by the time Pezzola forcibly breached the Capitol and Chansley rode his coattails, the mob—through the sheer force of its size and the violence of those within it—had wrested control of portions of the Capitol grounds and the Capitol itself from a vastly outnumbered U.S. Capitol Police force. 5 As a result, for a period that afternoon, those defending the Capitol were in triage mode—trying to deal with the most violent element of those unlawfully present, holding those portions of the Capitol that had not yet been seized by rioters, and protecting those Members and staffers who were still trapped in the Capitol.

5 Biggs stated, in part: “When you’re holding a position, like a fort, and you’re being overrun, if there’s three of you or four of you, and you’re outnumbered a hundred to one, are you gonna sit there and just go, ‘I’m holding the door’? No, you’re just gonna get your ass beat. That’s already gone. if that many people show up to your house, there’s nothing you can do about it.” Gov’t Ex. 611B. Biggs later continued, “You’re gonna stand up to [] tens of thousands of people storming that? No, that’s stupid. You step [] aside. That puts less chance of anyone getting hurt or anything like that, and you allow it to happen.” Id.

DOJ also lays out specifically how Tucker chose to release only video from after the damage — in the form of the violent breach of the Capitol and the decision to flee the Senate — had been done.

Chansley piggybacking on Pezzola’s violent breach of the Capitol provides more than enough evidence of his corrupt intent to interfere with Congress that day. But there is much more evidence of his and others’ conduct. The televised footage shows Chansley’s movements only from approximately 2:56 p.m. to 3:00 p.m. Prior to that time, Chansley had, amongst other acts, breached a police line at 2:09 p.m. with the mob, entered the Capitol less than one minute behind Pezzola during the initial breach of the building, and faced off with members of the U.S. Capitol Police for more than thirty minutes in front of the Senate Chamber doors while elected officials, including the Vice President of the United States, were fleeing from the chamber. Chansley then entered the Senate Gallery, where he proceeded to scream obscenities while other rioters rifled through the desks of U.S. Senators on the floor below. All these actions were captured by Senate floor and/or CCTV cameras. In sum, Chansley was not some passive, chaperoned observer of events for the roughly hour that he was unlawfully inside the Capitol. He was part of the initial breach of the building; he confronted law enforcement for roughly 30 minutes just outside the Senate Chamber; he gained access to the gallery of the Senate along with other members of the mob (obviously, precluding any Senate business from occurring); and he gained access to and later left the Senate floor only after law enforcement was able to arrive en masse to remove him. It is true that a sole officer, who was trying to de-escalate the situation, was with Chansley as he made his way to the Senate floor after initially breaching the Chamber, as the televised footage reflects.6 But the televised footage fails to show that Chansley subsequently refused to be escorted out by this lone officer and instead left the Capitol only after additional officers arrived and forcibly escorted him out.

6 Notably, this officer’s statement regarding these events was also disclosed in discovery to Chansley’s attorney on May 19, 2021.

It’s a classic lesson in how propaganda is made, by focusing on the least damning part of a story and suppressing the rest. It happens to have been released in the same period where the Dominion lawsuit revealed that Tucker’s then investigative producer, Alex Pfeiffer, likened Tucker’s own viewers to “dumb,” “cousin-fucking” “terrorists.”

“Might wanna address this, but this stuff is so f—— insane. Vote rigging to the tune of millions? C’mon,” Shah wrote.

Carlson’s producer, Alex Pfeiffer, responded: “It is so insane but our viewers believe it so addressing again how her stupid Venezuela affidavit isn’t proof might insult them.”

Shah advised that Carlson should mention the affidavit noting it was “not new info, not proof” but then quickly “pivot to being deferential.”

Pfeiffer, who has since left the network, answered that the delicate dance was “surreal.”

“Like negotiating with terrorists,” he added, “but especially dumb ones. Cousin f—– types not saudi royalty.”

The kerfuffle also gave journalists an opportunity to go back and ask for the video used in the Chansley case to be released to journalists.

One of the videos newly released to journalists shows the mob closing in on the Senate and — I suspect this may be the 10-second clip that was originally withheld — one or more Senators fleeing as a single cop holds off the mob by yelling “back off” repeatedly.

Kyle Cheney, who first pointed to this segment, suspects the fleeing Senator may be Chuck Grassley.

In other words, what we’ve learned from this incident is that Tucker is the one lying about what happened. DOJ, in fact, had been withholding some of the most damning video from the public but not defense attorneys, and Tucker’s propaganda effort has provided yet another glimpse of how many close calls the police managed to avert on January 6.

Matt Taibbi Declares John Podesta’s Risotto Recipe Was “True”

The Democrats on Jim Jordan’s insurrection protection committee were really unprepared for Matt Taibbi and Michael Shellenberger yesterday, failing to call out their repeated false claims.

One of the most interesting details came when Taibbi described that someone besides Elon Musk invited him to have unfettered access to a company under a consent decree. Given the likelihood that this person was not even a Twitter employee, it gives the FTC far more reason to want to know why a company under a consent decree made information on individual users available to journalists.

But the hearing was nevertheless useful for the way it revealed that Taibbi doesn’t know the difference between “authentic” and “true.” In an exchange with Stephen Lynch about whether Russia interfered in the 2016 election (in which Lynch falsely claimed that the intelligence report attributing the Russian campaign to Russia involved 18 intelligence agencies, instead of three, and mispronounced both Shellenberger’s and Yevgeniy Prigozhin’s name), Taibbi professed to be uncertain whether Russia conducted a hack-and-dump campaign.

Lynch: Do you believe that Russia engaged in a hack-and-release campaign damaging to the Clinton campaign, back in 2016?

Taibbi: I don’t know and I would say it’s irrelevant.

[snip]

Lynch: Mr. Shellenbech [sic] do you believe that the Russians engaged in a hack-and-release campaign with respect to the damaging information they released regarding the Clinton campaign?

Shellenberger: To the best of my awareness, that is what happened, yes.

Lynch: Okay, fair enough.

Shellenberger: That’s not the same thing as influence campaign.

Lynch: I understand.

Taibbi: Also that material was true. That is not a legitimate predicate for censorship.

Taibbi obviously thought he was being very clever, justifying publishing material stolen from an American because it was “true.” (And Shellenberger was being equally clever, not understanding that a hack-and-leak campaign is, indeed, part of an information operation.)

But instead, he betrayed something that is obvious from his propaganda efforts: Taibbi doesn’t understand the difference between “authentic” and “true.” When someone makes false claims about authentic material, it is a lie.

For example, Taibbi has repeatedly claimed that the FBI was not building cases on the suspected voter suppression accounts they turned over to Twitter, even though he included a screen cap showing the FBI taking steps — asking in what venue they needed to serve legal process and seeking a preservation order — that allows them to conduct an investigation.

The email is authentic. His claims about FBI’s efforts to investigate voter suppression are — he himself proved — a lie.

He also betrays that he doesn’t understand some of the material released in 2016 was neither “true” nor “authentic.” Not only were the Guccifer 2.0 documents altered, but the persona repeatedly falsely claimed they were something they were not, most obviously when the persona claimed he was releasing Clinton Foundation documents and I had to explain that that’s not what they were to Glenn Greenwald.

That persona did just what Taibbi has done with the Twitter files, wow credulous people (like Greenwald) with “authentic” files, while making false claims about them.

#MattyDickPic’s confusion about the difference between “true” and “authentic” became more obvious later in the hearing.

Goldman: Are you aware that there was an analysis of the hard drive that was done by the Washington Post at a later date?

Shellenberger: My awareness is that multiple media organizations have done an analyses, including CBS, and found that it was indeed, the laptop was authentic, and that nothing had been changed on it.

Goldman: Let’s just get something clear. The laptop that the FBI had is different than the hard drive that Rudy Giuliani gave to the New York Post. A hard drive, you will agree with this, is a copy of a laptop, right?

Shellenberger: Yes.

Goldman: And you are aware that hard drives can be altered, are you not?

Shellenberger: Of course.

Goldman: So are you aware that the Washington Post analysis of the hard drive showed that it had been altered?

Shellenberger: I have heard that, but I’m also saying that CBS verified —

Taibbi: Politico …

Shellenberger: and other media organizations have verified…

Never mind that Shellenberger seems to have no fucking clue that the laptop CBS analyzed is not the same hard drive that Rudy gave to the Post, and therefore is not the “laptop” on which the story that Twitter throttled was based. Never mind that CBS’ analysis is inconsistent with John Paul Mac Isaac’s claims that the process by which he made his own copy of the laptop was repeatedly interrupted, a problem that would make it difficult to distinguish from an iCloud hack and a real laptop (who puts voice mail messages on a laptop hard drive, for example?), a detail consistent with what I know of the Washington Post analysis (which was conducted by two different people).

But the cutest was little #MattyDickPics chiming in to claim that Politico had authenticated “the laptop.”

They claim no such thing! They authenticated some files (and not forensically, but instead by a witness who couldn’t even confirm the emails hadn’t been altered).

Shreckinger’s source remembered viewing both emails but was not able to compare the text leaked to the Post with the original emails. Other emails from the leaked files matched a cache of emails released by a Swedish government agency, two people who communicated with Hunter Biden said.

This kind of “authentication,” when the claims of someone with a bias like Tony Bobulinski can supplant forensic authentication, is precisely the problem with hack-and-leak reporting, regardless of whether Russian hackers or Matt Taibbi’s buddies do the hacking.

And neither Michael Shellenberger nor Matt Taibbi understand that.

Matt Taibbi does not know the difference between “true” and “authentic,” and it shows in his propaganda.

Jenna Ellis Lied and Lied and Lied and Lied and Lied and Lied and Lied and Lied and Lied and Lied

In an attempt to settle the Colorado challenge to her law license, Jenna Ellis stipulated that she made ten “misrepresentations” in public statements she made about the election in 2020.

Those, um, lies were:

  • On November 13, 2020, Respondent claimed that “Hillary Clinton still has not conceded the 2016 election.”
  • On November 20, 2020, Respondent appeared on Mornings with Maria on Fox Business and stated: “We have affidavits from witnesses, we have voter intimidation, we have the ballots that were manipulated, we have all kinds of statistics that show that this was a coordinated effort in all of these states to transfer votes either from Trump to Biden, to manipulate the ballots, to count them in secret . . .”
  • On November 20, 2020, Respondent appeared on Spicer & Co. and stated, “with all those states [Nevada, Michigan, Pennsylvania, Wisconsin, Georgia] combined we know that the election was stolen from President Trump and we can prove that.”
  • On November 21, 2020, Respondent stated on Twitter under her handle @JennaEllisEsq., “ . . . SECOND, we will present testimonial and other evidence IN COURT to show how this election was STOLEN!”
  • On November 23, 2020, Respondent appeared on The Ari Melber Show on MSNBC and stated, “The election was stolen and Trump won by a landslide.”
  • On November 30, 2020, Respondent appeared on Mornings with Maria on Fox Business and stated, “President Trump is right that there was widespread fraud in this election, we have at least six states that were corrupted, if not more, through their voting systems. . . We know that President Trump won in a landslide.” She also stated, “The outcome of this election is actually fraudulent it’s wrong, and we understand than when we subtract all the illegal ballots, you can see that President Trump actually won in a landslide.”
  • On December 3, 2020, Respondent appeared on Mornings with Maria on Fox Business and stated, “The outcome of this election is actually fraudulent it’s wrong, and we understand than when we subtract all the illegal ballots, you can see that President Trump actually won in a landslide.”
  • On December 5, 2020, Respondent appeared on Justice with Judge Jeanine on Fox News and stated, “We have over 500,000 votes [in Arizona] that were cast illegally . . .”
  • On December 15, 2020, Respondent appeared on Greg Kelly Reports on Newsmax and stated, “The proper and true victor, which is Donald Trump . . .”
  • On December 22, 2020, Respondent stated on Twitter, through her handle @JennaEllisEsq, “I spent an hour with @DanCaplis for an in-depth discussion about President @realDonaldTrump’s fight for election integrity, the overwhelming evidence proving this was stolen, and why fact-finding and truth—not politics—matters!” [my emphasis]

Remarkably, Ellis told four of these lies on Fox, the same shows that feature prominently in the Dominion lawsuit against Fox. But because the lies Ellis was telling weren’t about Dominion, they don’t show up in the Dominion lawsuit. They’re just more instances of lies that Fox broadcast unchallenged.

The presiding disciplinary judge in the case, Byron Large, only censured Ellis in response to her admitted lies, because she didn’t tell those lies in her function as lawyer. (Politico reported on the decision here.) She didn’t stipulate to making these false claims to Trump or as the attorney of record in any of the lawsuits that Trump filed, and so, according to a standard adopted by the CO Supreme Court, she should only be censured, not disbarred.

Although ABA Standard 7.2 seemingly fits the fact pattern at hand, the Colorado Supreme Court’s opinion in In re Rosen counsels against relying on that Standard outside the context of lawyers’ misrepresentations while executing their professional duties. Rosen further counsels against imposing a sanction in the gap left between ABA Standards 5.11(b) and 5.13. Indeed, the Rosen court addressed at length the appropriate Standards to apply when faced with instances of lawyer misrepresentation:

Unless deceit or misrepresentation is directed toward a client, see ABA Standard 4.6, a tribunal, see ABA Standard 6.1, or the legal profession itself (as, for example, by making false representations in applying for admission to the bar), see ABA Standard 7.0, it is considered by the ABA Standards to be the violation of a duty owed to the public, see ABA Standard 5.0. As the violation of a duty owed to the public (as distinguished from a client, a court, or the profession), even conduct involving dishonesty, fraud, deceit, or misrepresentation, as long as it falls short of actual criminality or comparable intentional conduct seriously adversely reflecting on one’s fitness to practice law, should generally be sanctioned only by reprimand, or censure. [emphasis original; citations omitted]

So long as Ellis is not found to have committed a crime with her lies, she can keep her law license.

Therein lies the rub.

Also as part of the stipulation, Ellis described her role on the Trump campaign this way:

From February 2019 to January 15, 2021, Respondent was a senior legal advisor to the then-serving President of the United States. She “was a member of President Trump’s legal team . . . that made efforts to challenge President Biden’s victory in the 2020 Presidential Election.”1 Though Respondent “was part of the legal team . . . she was not counsel of record for any of the lawsuits challenging the election results.”2

As it is, there was actually some dispute among witnesses to the January 6 Committee about whether Ellis was playing a legal role or a media one.

For example, Alyssa Farrah described that at one point, Mark Meadows considered Ellis to become White House spokesperson.

[W]hen Meadows brought me to the White House — well, he physically brought me tothe West Wing to ask if I would come back. He asked me to be press secretary. I said no, I am not — I would not be a good face for Donald Trump, I cannot defend a lot of what he’s doing, but I can professionalize the comms operation.

He said, okay, if its not you, it’s between Kayleigh McEnany and Jenna Ellis, And said, I mean, that’s not an embarrassment of riches, but between the two, I would go with Kayleigh McEnany.

[snip]

Q When you interacted with Ms. Ellis, did it seem like she was exercising more of a communications function or a campaign surrogate for television?

A Campaign surrogate for television, yeah. I didn’t get the sense that she was particularly up to speed on what we were working on in the White House or even what the campaign was. She was just sort of floating around the broader Trump orbit.

Here, though, Ellis has invoked a legal role that would protect great swaths of her communications under attorney-client privilege.

But among the communications turned over to the J6C not covered by privilege are a number that show Ellis advocating for Pence to break the law — including one email sharing that strategy with Jeanine Pirro. She was involved in the pressure campaign in the fake elector plot. Ellis invoked the Fifth Amendment over and over in her testimony to J6C.

Those actions weren’t included in the complaint against Ellis. Large emphasized that his decision was based only on, “the limited information before the Court—which includes only the four corners of the parties’ stipulation and their arguments supporting this outcome at the hearing on March 1, 2023.”

But to get there — to get to a place where Ellis was censured rather than disbarred — she had to admit to knowingly lying when she made false claims that served actions she took that may be criminal, convincing both electors and Pence to violate their duty under the law.

This decision, by itself, will not affect Jenna Ellis much. But the admission, in addition to all the evidence that Jack Smith has in hand, could.

Judge Unseals Details on Cooperating Witness in Douglass Mackey Case

The government was just forced to reveal that it has a cooperating witness against Douglass Mackey, the far right troll who tried to help Trump win in 2016 by tricking Hillary voters into texting their vote instead of casting it legally. The cooperating witness will testify against Mackey, whose trial starts on March 16.

The documents were all made available today:

The charge against Mackey accuses him of conspiring with four other people. As Luke O’Brien laid out when Mackey was arrested in 2021, three of Mackey’s co-conspirators were readily identifiable.

HuffPost can report that one co-conspirator is a prominent alt-right botmaster who goes by “Microchip” and was instrumental in making pro-Trump and anti-Hillary Clinton hashtags and content go viral on Twitter during the 2016 election. A fascist accelerationist who has expressed admiration for Adolf Hitler and Nazism, Microchip claims to have been involved in the early spread of the QAnon conspiracy cult and repeatedly told this reporter that his goal was to destroy the United States.

Another of Mackey’s co-conspirators is Anthime “Baked Alaska” Gionet, a pro-Trump white nationalist who was arrested on Jan. 16 for his involvement in storming the Capitol on Jan. 6. Gionet also participated in the deadly white nationalist “Unite the Right” rally in Charlottesville, Virginia, in 2017. (A New York Times story reported Wednesday afternoon that Gionet was a co-conspirator, citing a source close to the investigation, and HuffPost can confirm that reporting based on the Twitter ID cited in the complaint.)

HuffPost was able to link the Twitter IDs in the complaint to Gionet and Microchip through previously collected Twitter data, interviews and evidence left by both extremists on other websites. In direct messages with this reporter last year, Microchip also confirmed that he was using the Twitter account associated with the user ID listed in the complaint.

The user ID for a third co-conspirator belongs to a pro-Trump far-right activist who goes by “Nia” and has a long history of spreading disinformation on Twitter. HuffPost has not yet been able to identify the fourth co-conspirator.

The fourth was not.

As the government laid out in its motion, at some point, the cooperating witness pled guilty to the same crime charged against Mackey, a violation of the Ku Klux Klan Act. Since then, he has been cooperating with the government on other investigations, presumably targeting the far right.

The CW has pleaded guilty to a violation of 18 U.S.C. § 241 and entered into a cooperation agreement with the government. The government expects that the evidence at trial will show that the CW had communications with the defendant and other relevant persons over the internet through the use of Twitter, including communications discussing the creation and dissemination of deceptive images concerning the time, place, and manner by which voters could cast a vote in the 2016 presidential election. In particular, the CW participated in direct-message groups that included the defendant and others. In all instances, the CW used an online moniker for these communications and did not reveal his or her true identity, face, or likeness to the defendant or the other participants in the groups.

The government intends at trial to introduce the CW’s communications as exhibits and to question the CW concerning them and the CW’s understanding of the purpose of the deceptive images discussing the time, place, and manner of voting, among other related online activities. The CW has advised that apart from the CW’s family, a former girlfriend. and possibly one or two former business associates, no one is aware that the CW is in fact the user of the relevant internet monikers. As far as the government is aware, the CW’s true identity has never been publicly associated with any of the online monikers used by the CW on Twitter or other social media, notwithstanding the efforts of investigative journalists who have attempted to learn the CW’s identity.

In addition, since entering into the cooperation agreement, the CW has provided assistance to the FBI in other criminal investigations beyond the scope of this case. The CW is presently involved in multiple, ongoing investigations and other activities in which he or she is using assumed internet names and “handles” that do not reveal his or her true identity. The CW has not interacted with any witness, subject, or target in these investigations and activities on a face-to-face basis, and the government has no reason to think that the CW’s true identity has been compromised as a result of this work.

The government provides no other details about the CW (though Mackey’s reply refers to him as male), but it does go out of the way to note that the person had not flipped by 2016, I guess to avoid any possibility Republicans will claim this was part of Crossfire Hurricane.

For the avoidance of doubt, the CW was not cooperating with the government at any point before or during 2016.

The government noted in its reply, the technical proficiency of those who might suspect they were being investigated is such that revealing his identity might make him the target of harassment and cyber attacks.

The fact of the CW’s cooperation is sure to be seen by many in that community as a profound betrayal, with the result that, at a minimum, online harassment is bound to follow the CW should his or her identity become a matter of public record. That harassment can have negative consequences in and of itself. In addition, to claim that intense online attacks do not endanger a person’s physical safety is to ignore the reality of our current world, as evinced in common newspaper headlines. See, e.g., Sheera Frenkel, The Storming of Capitol Hill Was Organized on Social Media, N.Y. TIMES, Jan. 6, 2021, available at https://www.nytimes.com/2021/01/06/us/politics/protesters-storm-capitol-hillbuilding.html; Eric Lipton, Man Motivated by “Pizzagate” Conspiracy Theory Arrested in Washington Gunfire, N.Y. TIMES, Dec. 5, 2016, available at https://www.nytimes.com/2016/12/05/us/pizzagate-comet-ping-pong-edgar-maddisonwelch.html. It is simply (and regrettably) a fact of the times that many acts of politically motivated violence in current society arise from campaigns of online harassment.

Beyond the risk to the CW, the potential consequences include the disruption of the CW’s ongoing work with the FBI. It is certainly true that the nature of this work is online and anonymous, but, if the CW’s name and location were to become known, the CW would become a target for all who believe that they might be under investigation (whether they are or not). Given the technical proficiency of those with whom the CW associates, it is not difficult to envision multiple scenarios in which the CW’s online work could be jeopardized by way of a cyberattack (at a minimum).

While it doesn’t say so, those two past incidences in which online trolling led to violence — January 6 and PizzaGate — are both other instances in which Mackey’s other co-conspirators and those in the same network were involved. Indeed, co-conspirator Baked Alaska is currently serving time for his role in the January 6 attack.

Unsurprisingly, the government provides no details about how long this cooperation has been going on — but it presumably started before Mackey was arrested in 2021. Which is likely to make a lot of right wingers awfully nervous.

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