Ponder this: The Washington Post deems an investigation that fully exploited a high profile media figure’s phone as overly cautious.

To be sure, when WaPo wrote 8,000 words about the January 6 investigation, they exhibited not a shred of awareness that had happened.

But according to an exchange in a June 23, 2022 status hearing in Owen Shroyer’s prosecution, FBI case agents had just obtained the content of Shroyer’s phone and were just beginning to scope it (that is, post-privilege review, to isolate any content that complied with whatever warrant was used to access the phone). Within days after that, Alex Jones lawyer Norm Pattis joined Joe Biggs’ defense team.

As a reminder, in August 2021, DOJ used a pre-existing Deferred Prosecution Agreement with Jones’ sidekick as means to bypass any First Amendment concerns behind arresting Shroyer.

On Friday, Shroyer entered into the standard plea agreement for the more serious of two misdemeanors, requiring that he share his social media activity but not requiring an interview (though sometimes silence about an interview in these standard pleas reflects a prior interview), much less real cooperation. Particularly because of two 2011 DWI-related charges, Shroyer might face a sentence of some weeks or months of jail time, which if he did, would be a sentence imposed by Trump appointee Tim Kelly. While Shroyer’s Statement of Offense mentions Jones as Person One (which DOJ already had in November 2021), it is coy about any knowledge on Shroyer’s part that he and Jones were asked to lead Trump’s mob to the Capitol.

On January 6, 2021, the defendant attended the speeches at the Ellipse in downtown Washington, D.C., as part of the Stop the Steal rally. Early that afternoon, crowds of people began to gather and head towards the Capitol perimeter. The defendant took to a megaphone in front of one of those crowds on Pennsylvania Avenue:

In 1776, the American patriots sent a loud messages to the entire world: Tyranny will not exist in the West. And so now the Democrats are posing as communists, but we know what they really are: they’re just tyrants, they’re tyrants. And so today, January 6, we declare death to tyranny! Death to tyrants! Death to tyrants! Death to tyrants!

En route to the U.S. Capitol, the defendant continued shouting to the crowd walking behind and around him through his megaphone.

Even a declaration Shroyer submitted a year ago said more about his expectations that Trump would lead the march to the Capitol.

Nor does the Statement of Offense say anything about the texts Shroyer exchanged with the Proud Boys in the days and minutes before the attack on the Capitol.

Records for Enrique Tarrio’s phone show that while the attack on the Capitol was ongoing, he texted with Jones three times and Shroyer five times.124 Ethan Nordean’s phone records reflect that he exchanged 23 text messages with Shroyer between January 4th and 5th, and that he had one call with him on each of those days.125 Records of Joseph Biggs’s communications show that he texted with Shroyer eight times on January 4th and called him at approximately 11:15 a.m. on January 6th, while Biggs and his fellow Proud Boys were marching at and around the Capitol.126

Shroyer’s plea agreement was initialed by someone other than Jocelyn Ballantine, the AUSA overseeing complex conspiracy prosecutions.

Shroyer’s treatment, like Brandon Straka’s, may be a sign that DOJ continues to shy away from obstruction charges with the people who, like other rioters, broke the law and exhibited premeditation to obstruct the vote certification, but who might raise more vigorous defenses against obstruction charges.

But whatever else Shroyer’s prosecution represents, it is an instance where DOJ used the arrest of someone who fits solidly within DOJ’s media guidelines to obtain and exploit his phone. All with nary a peep from other journalists.

WaPo’s cavalier attitude towards the First Amendment considerations in this investigation extends into the details that they do provide. Consider how it presents a key showdown in late February 2021. As WaPo describes, JP Cooney pitched a plan to take investigative steps against Roger Stone, Alex Jones, and Ali Alexander directly — precisely the people whose activities might have been captured on Shroyer’s phone.

But a group of prosecutors led by J.P. Cooney, the head of the fraud and public corruption section at the U.S. attorney’s office, argued that the existing structure of the probe overlooked a key investigative angle. They sought to open a new front, based partly on publicly available evidence, including from social media, that linked some extremists involved in the riot to people in Trump’s orbit — including Roger Stone, Trump’s longest-serving political adviser; Ali Alexander, an organizer of the “Stop the Steal” rally that preceded the riot; and Alex Jones, the Infowars host.

[snip]

In February 2021, Cooney took his proposal to investigate the ties with people in Trump’s orbit directly to a group of senior agents in the FBI’s public corruption division, a group he’d worked with over the years and who were enmeshed in some of the most sensitive Jan. 6 cases underway.

According to three people who either viewed or were briefed on Cooney’s plan, it called for a task force to embark on a wide-ranging effort, including seeking phone records for Stone, as well as Alexander. Cooney wanted investigators to follow the money — to trace who had financed the false claims of a stolen election and paid for the travel of rallygoers-turned-rioters. He was urging investigators to probe the connection between Stone and members of the Oath Keepers, who were photographed together outside the Willard hotel in downtown Washington on the morning of Jan. 6. [my emphasis]

This entire section seems reliant on three people familiar with this discussion; there’s no claim it relies on people who actually participated in it (though Michael Sherwin and either Steve D’Antuono directly or via his HJC transcript appear to be key sources for this story).

The description of the plan seems muddled.

JP Cooney, who would have known of Roger Stone’s past incitement of violence with the Proud Boys, couldn’t possibly have focused exclusively on Stone’s ties to the Oath Keepers to the exclusion of the Proud Boys, could he?

Plus, much of the rest of the discussion seems to ignore parts of this plan — such as following the money — that did go forward in 2021, in however curtailed a way. Indeed, in one place WaPo suggests that Garland, in a speech in which he said they were “follow[ing] the money,” had chosen to “start[] with ‘the people on the ground’ and work[] up,” a description that ignores the investigation into Sidney Powell’s grifting that was overt by September 2021. So it’s not clear whether Axelrod vetoed the entire plan, or just those two parts of it.

In any case, FBI agents balked and got two men with clear conflicts in the investigation, D’Antuono and Sherwin, to review and elevate concerns about Cooney’s plans.

Inside the FBI’s Washington Field Office, agents recognized Cooney’s presentation for the major course change that it presented. Investigators were already looking for evidence that might bubble up from rioter cases to implicate Stone and others. Cooney’s plan would have started agents looking from the top down as well, including directly investigating a senior Trump ally. They alerted D’Antuono to their concerns, according to people familiar with the discussions.

D’Antuono called Sherwin. The two agreed Cooney did not provide evidence that Stone had likely committed a crime — the standard they considered appropriate for looking at a political figure. Investigating Stone simply because he spent time with Oath Keepers could expose the department to accusations that it had politicized the probe, they told colleagues.

D’Antuono took the matter to Abbate, Wray’s newly named deputy director. Abbate agreed the plan was premature.

Sherwin similarly went up his chain of command, alerting Matt Axelrod, one of the senior-most officials Biden installed on his landing team at “Main Justice,” as the DOJ headquarters on Pennsylvania Avenue NW is known. Axelrod, a top Justice Department official during the Obama administration, had been tapped by Biden’s transition committee to help run the department day-to-day until Garland and Monaco could be confirmed.

This led to a meeting among top people, not all of whom are named. As described, Obama DOJ veteran Matt Axelrod objected primarily to two parts of the plan: to obtain membership rolls for the Oath Keepers (again, this story is silent about the Proud Boys) and information on permits for rallies.

Axelrod called a meeting for the last week of February with Sherwin, D’Antuono, Abbate and other top deputies. Cooney wasn’t there to defend his plan, according to three people familiar with the discussion, but Axelrod and Abbate reacted allergically to one aspect of it: Cooney wanted membership rolls for Oath Keepers as well as groups that had obtained permits for rallies on Jan. 6, looking for possible links and witnesses. The two saw those steps as treading on First Amendment-protected activities, the people said.

Axelrod saw an uncomfortable analogy to Black Lives Matter protests that had ended in vandalism in D.C. and elsewhere a year earlier. “Imagine if we had requested membership lists for BLM” in the middle of the George Floyd protests, he would say later, people said. [my emphasis]

It’s not even clear that obtaining the membership lists would be constitutional under NAACP v. Alabama. Plus, given the in-fighting within the Oath Keepers (and the Proud Boys) it’s also not clear it would be that useful. Ultimately, prosecutors worked from the content seized from arrestees’ phones and other evidence of ties between actual co-conspirators. That caused a significant part of the delay before charging both Stewart Rhodes and Enrique Tarrio, but in the latter’s case, that was a year-long delay to access evidence seized before January 6!

In both militia leader prosecutions, only content that would have been viewed by charged co-conspirators came in as evidence — but even there, defendants in both trials argued this exceeded the First Amendment.

Which is to say that Axelrod’s concerns about membership lists were not only right from a legal and civil liberties perspective, but possibly even from an efficacy one as well.

That’s far less clear with regards to information on people who had permits for rallies on January 6. That’s especially true given WaPo’s silence about Brandon Straka’s so-called cooperation, without consideration of which this story is incomplete.

Brandon Straka, recall, is one of the key “influencers” behind Stop the Steal; he played a key role in the TCF protest in Michigan. He attended the January 6 rally as a VIP, sitting right next to Mike Flynn. He stopped at the Willard between the time he left the rally and took the Metro to the Capitol, expecting to speak. He was initially charged with civil disorder and — based on the standards applied to other rioters — could easily have been charged with obstruction. Instead, he was given credit for cooperating in two early FBI interviews, and ultimately pled only to the less serious trespassing charge, to be sentenced to three years of probation.

According to his cooperation memo, Straka provided information on Alexander, Cindy Chafian, and the Kremers (as well as the Stop the Steal DM list) starting on February 11, in advance of the late February meeting discussing Cooney’s plan. That makes it likely that Cooney’s plan was partly a response to Straka’s first interview. My view — and that of everyone I know who has followed Straka’s prosecution closely — is that FBI agents who interviewed Straka were wildly credulous about his answers. FBI investigators bought stories that January 6 Committee investigators later poked big holes in. And neither the FBI nor the DOJ adequately investigated Straka’s role in inciting violence earlier, though DOJ may have revisited it after Probation discovered how he profited off his false claims.

If Cooney’s plan was an attempt to capitalize on Straka’s so-called cooperation, the failure started with the FBI agents getting bulldozed by Straka’s claims, not more senior decision-makers (though by all reports, D’Antuono would certainly have protected such investigative ineptitude).

Whatever the merit of Axelrod’s decision, WaPo describes it to be a decision about the First Amendment, not one about politics.

It then uses a decision it describes to arise from First Amendment concerns, describes that “some” of the half dozen or so present — at least two of whom had clear conflicts — also had political concerns.

Axelrod later told colleagues that he knew Jan. 6 was an unprecedented attack, but he feared deviating from the standard investigative playbook — doing so had landed the DOJ in hot water before. Former FBI director James B. Comey’s controversial decision to break protocol — by publicly announcing he was reopening the investigation into Clinton’s emails days before the 2016 presidential election — was widely viewed as swinging the contest in Trump’s favor.

Some in the group also acknowledged the political risks during the meeting or in subsequent conversations, according to people familiar with the discussions. Seeking the communications of a high-profile Trump ally such as Stone could trigger a social media post from Trump decrying yet another FBI investigation as a “witch hunt.” And what if the probe turned up nothing? Some were mindful, too, that investigating public figures demanded a high degree of confidence, because even a probe that finds no crime can unfairly impugn them.

All who assembled for the late February meeting were in agreement, with Axelrod making the final call: Cooney’s plan would not go forward.

Aspects of the proposal were reported in 2021 by The Post and the New York Times. But the identity of the prosecutor who pushed for the plan, several of its details and the full story of how it galvanized the Justice Department’s approach to the Jan. 6 investigation have not been previously revealed.

Inside the FBI’s Washington Field Office, buzz about who might join the task force to investigate those around Trump dissipated as word spread that plans for the team had been shelved. In the U.S. attorney’s office, budding investigative work around the finances of Trump backers was halted, an internal record shows, including into Jones, who had boasted of paying a half-million dollars for the president’s Jan. 6 rally and claimed the White House had asked him to lead the march to the Capitol. [my emphasis]

WaPo then appears to apply the political squeamishness it attributes to just “some” participants in a meeting attended mostly by people who’ve moved on, to all of DOJ’s subsequent decisions, dropping consideration of the very real First Amendment concerns that have been an issue at virtually every prosecution to date to say nothing of evidentiary concerns that the Rhodes prosecution bore out.

A Washington Post investigation found that more than a year would pass before prosecutors and FBI agents jointly embarked on a formal probe of actions directed from the White House to try to steal the election. Even then, the FBI stopped short of identifying the former president as a focus of that investigation.

A wariness about appearing partisan, institutional caution, and clashes over how much evidence was sufficient to investigate the actions of Trump and those around him all contributed to the slow pace. Garland and the deputy attorney general, Lisa Monaco, charted a cautious course aimed at restoring public trust in the department while some prosecutors below them chafed, feeling top officials were shying away from looking at evidence of potential crimes by Trump and those close to him, The Post found.

[snip]

The Justice Department’s painstaking approach to investigating Trump can be traced to Garland’s desire to turn the page from missteps, bruising attacks and allegations of partisanship in the department’s recent investigations of both Russia’s interference in the 2016 presidential election and Hillary Clinton’s use of a private email server.
Inside Justice, however, some lawyers have complained that the attorney general’s determination to steer clear of any claims of political motive has chilled efforts to investigate the former president. “You couldn’t use the T word,” said one former Justice official briefed on prosecutors’ discussions. [my emphasis]

Within two months after DOJ, prior to Garland’s confirmation, halted the investigation into Jones, FBI arrested his videographer Sam Montoya, followed four months later by the Shroyer arrest. Magistrate Judge Zia Faruqui was so skeptical that Shroyer’s arrest met DOJ’s own media guidelines that he demanded additional briefing before approving the arrest warrant; and in approving it, he suggested that Shroyer had the intent of obstructing the vote certification.

Shroyer’s arrest, in particular, was an opportunistic step, one that used his prior DPA to take a step that otherwise would have — and did, from Faruqui — elicit objections, in order to pursue evidence that might have (and still might!) substantiate the ties between Jones and the assault on the Capitol.

That makes his treatment similar to the treatment DOJ used with Rudy Giuliani — another investigative angle about which WaPo was not just unaware but affirmatively mistaken.

Approving the seizure of Rudy Giuliani’s phones on her first day on the job and taking subsequent steps to ensure all the content on them, including the January 6 content, got a privilege review from the start was not cautious. Using Shroyer’s prior DPA as a means to arrest a key pivot between the crime scene and the Willard was not cautious.

They were steps designed to obtain key evidence without attracting undue attention. And the steps themselves, at least, succeeded so well, the WaPo wrote an 8,000 word story purporting to describe the investigation, yet missed both of them.

The government has submitted materials in support of a requested continuance until December in Trump’s stolen documents case:

• Motion to Implement Special Conditions
• Motion for Continuance
  • Jay Bratt Declaration
  • Proposed Schedule
  • Proposed Scheduling Order

The Motion to Implement Special Conditions is basically a bid to get a list of 84 witnesses submitted, via sealed filing, to docket, and so subject to Judge Aileen Cannon’s discipline. Under the order issued by Magistrate Judge Jonathan Goodman, both Trump and Walt Nauta will be prohibited from speaking about the facts of the case with any of the 84 witnesses — a great many of whom are Trump employees — except through counsel.

Even at the arraignment, Todd Blanche balked at this condition, which Goodman imposed without DOJ requesting it. In particular, I think Blanche wants people to be able to discuss the case without counsel present so long as counsel has advised about that.

But per the filing, defense attorneys may yet object to the condition itself.

2 The government has conferred with counsel for Defendant Trump and Defendant Nauta about this motion. They have authorized government counsel to represent the following: “Defense counsel takes no position on the government’s motion to seal the list of witnesses, but the defense reserves the right to object to the special condition and the manner in which it was implemented by the government by providing a list of 84 witnesses in purported compliance with the court’s order.” Counsel for defendant Nauta, Stanley Woodward, has not yet been admitted pro hac vice or entered an appearance, but the government is providing him a courtesy copy of this pleading.

I would love to see briefing on this, because I think Blanche has specific concerns about preserving the nesting gatekeeping that has existed from the start of this. But this condition, if upheld, will also stymie Trump’s efforts to fundraise by lying about this case.

The other request is a motion to delay the trial — which Aileen Cannon initially scheduled for August — until December, largely for CIPA to play out. This is totally normal, and given Cannon’s past history in criminal cases — which Kyle Cheney reviewed here — there’s no reason to expect she would object (indeed, legally, CIPA requires her to work through this process).

The proposed schedule would envision a trial before the first primary, but it triggers everything to Trump (and Nauta’s) responsiveness. I suspect it was crafted to undermine any claims from Trump that DOJ is responsible for a trial as people are voting, but some of these deadlines are really aggressive.

Most interesting, though, is DOJ’s treatment of clearances. According to Jay Bratt’s declaration, once defense attorneys get their SF-86 filing in, the Litigation Security Group has committed to turning around their initial clearances unbelievably quickly: two days. And it has likewise committed to sharing SIGINT documents based just off that interim clearance.

To be granted an interim security clearance, defense counsel must submit a Standard Form 86 – Questionnaire for National Security (“SF-86”) and supporting documentation. To date, not all of the defense counsel have submitted their SF-86s. Once an SF-86 and supporting documentation are submitted, absent complicating circumstances, an interim clearance may be granted within a matter of days. In this case, LSG has committed to reaching an eligibility determination within 24-48 hours of the completed submission. Once defense counsel are granted interim security clearances, the government will be able to provide the vast majority of classified discovery, consisting of documents marked CONFIDENTIAL, SECRET, and TOP SECRET, including documents within the following Sensitive Compartmented Information Compartments: SI, SI-G, and TK. [my emphasis]

You can see from the list of charged documents, that would encompass many of the charged documents (some of the redacted classifications are probably SI-G).

But there are others that require further read-in.

However, interim security clearances are not sufficient for the government to provide in classified discovery a small number of documents-including some documents whose unauthorized retention is charged in the indictment-that contain restricted compartments for which a final security clearance and additional read-ins are required. LSG estimates that final clearances may be granted within 45 to 60 days of submission of the SF-86 and related documentation, depending upon the content of the applicant’s SF-86. The additional read-ins can be conducted promptly upon access approval. [my emphasis]

Among the unredacted classification marks not included among those Bratt listed are FR (Formerly Restricted, a nuclear designation under the Atomic Energy Act and one Presidents can’t declassify alone) and HCS-P (HUMINT product). The bolded language suggests that DOJ is planning to share all classified documents Trump stole; based on the redaction marks in the May 11 subpoena, I would be unsurprised if there were HCS-C, HUMINT collection, documents included as well.

This is an incredibly aggressive approach. As I’ve said, I think DOJ would prefer to find a way to get Trump to plead out, however unlikely that would be. The sooner they share documents with Trump and Nauta’s lawyers, the sooner they might be in a position to persuade Trump how bad this will look if he goes to trial.

But note the two caveats: At least one of three known defense attorneys has not yet submitted his SF-86, the list of foreign contacts needed to obtain clearance. At least one of them — Chris Kise, who worked for Venezuela’s government — may not be eligible.

So one other underlying context to this is that until Trump can find cleared attorneys, he may be responsible for delays that would result in a trial during the primary season.

DOJ has turned over the first tranche of unclassified discovery in the Trump stolen documents case. It includes recordings, plural, of interviews Trump did, complete copies of the surveillance footage DOJ obtained, and pictures even beyond those included in the indictment.

The second part includes a reproduction of “key” documents and photographs included in Production 1 that are referenced in the Indictment and others determined by the government to be pertinent to the case. The third part consists of complete copies of closed-circuit television (CCTV) footage obtained by the government in its investigation. To facilitate review, the government also identified and separately produced for the defense “key” excerpts from the CCTV footage, including excerpts referenced in the Indictment or otherwise determined by the government to be pertinent to the case.

As I’ve suggested, DOJ would prefer to get Trump to plead out. It’s possible there is discovery that will make him decide going to trial will be more damaging for him than pleading out.

The discovery memo also reveals that Walt Nauta testified to the grand jury on June 21 of last year.

The June 21, 2022 grand jury testimony of Defendant Nauta.

This was days before DOJ subpoenaed surveillance footage on June 24. That puts the alleged conflict between Jay Bratt and Nauta’s attorney, Stan Woodward, in different light.

Nauta was not charged with perjury for that appearance, suggesting he already fixed his testimony before DOJ obtained the surveillance footage.

But not before his alleged lies in May helped Trump abscond to Bedminster with more classified documents.

Judge Aileen Cannon set Donald Trump’s trial for hoarding 31 highly classified documents for August 14, 2023.

The trial won’t happen that quickly. This is, instead, an order stemming from Speedy Trial Act (and in any case, the trial would be set back a few weeks once Walt Nauta is arraigned, because barring a plea or other unforeseen developments, they will be tried together). Per the boilerplate, the two sides have to file Speedy Trial notices every 21 days from here on out.

Other parts of the boilerplate order are more interesting. For example, Judge Cannon ordered that each side can propose no more than 10 voir dire questions to be used in jury selection. This suggests that Cannon plans to conduct the questioning of the jury (again, this is routine in many places) and that she doesn’t envision the kind of 200 word questionnaire I would have envisioned to weed out bias.

Counsel shall be prepared to conduct limited voir dire following the Court’s questioning of the panel. Prior to Calendar Call, each party may file no more than 10 proposed voir dire questions (including any sub-parts) for the Court to consider asking of the venire. The Court will not permit the backstriking of jurors.

As I understand it, the reference to “backstriking” means that the two sides must issue peremptory challenges against jurors in real time, rather than seeing everyone who is qualified and picking the most disfavorable to kick off the jury.

This part of the order, more than anything else in this filing, could determine Donald J. Trump’s fate before a SDFL jury, because it would limit the degree to which both sides could hand pick a jury.

Another part of the order that may matter pertains to Rule 404(b) notices.

All responses pursuant to the Standing Discovery Order and/or Local Rule 88.10 shall be provided in a timely fashion in accordance with the dates scheduled by the magistrate judge. Noncompliance with the Standing Discovery Order, the Local Rules, or the Federal Rules of Criminal Procedure may result in sanctions. Any notice submitted pursuant to Federal Rule of Evidence 404(b) must be filed as a motion—not as a notice—and must identify with particularity the evidence to be introduced and the factual and legal basis supporting admission. Responses to such motions are due in accordance with the standard timing requirements set forth in Local Rule 7.1(c).

404(b) notices pertain to related conduct that is not itself part of the charges. Often it pertains to events that happened before the crime in question that show a predisposition to commit a crime (but character evidence is prohibited).

In the indictment, for example, the incident in which Trump leaked details of an Iran document may need to be introduced as Rule 404(b), because while it is itself a crime, it is not the crime charged in the indictment. Similarly, DOJ could try to introduce evidence that Trump selectively spilled classified information even as President.

Cannon will have discretion to exclude such information as prejudicial, among other things. And because the Milley incident is key to proving that Trump knew he could no longer declassify information, it could harm the case.

But we honestly don’t know whether she would do that! This order is boilerplate, and all it shows is that Cannon is, thus far, treating the trial of a former President as she would any other trial.

Update: This piece from Kyle Cheney is a useful review of how Judge Cannon has treated the few trials over which she has presided.

The WaPo has a story that many Merrick Garland attackers claim confirms their fears about the DOJ investigation. Except the story has really important gaps, most importantly in its portrayal of the fake electors investigation, which is the damning part of the story about Garland or Lisa Monaco’s direct decisions (as opposed to those of FBI).

Moreover, the one thing it proves definitively is that former FBI Washington Field Office head Steve D’Antuono repeatedly shot down investigative prongs of this investigation, just like he did the stolen documents investigation. That the head of the WFO was running interference for Trump raises key questions about FBI missteps with people like Brandon Straka, someone arrested early who had direct ties to the scheme in the Willard, to say nothing about WFO’s ineptitude in advance of the attack.

Here are the main disclosures.

Steve D’Antuono shot down an effort by JP Cooney early

The story describes that — after such time as Brandon Straka was being treated as a cooperative witness — JP Cooney pitched an idea to get to Stone through the Oath Keepers, not the Proud Boys.

But a group of prosecutors led by J.P. Cooney, the head of the fraud and public corruption section at the U.S. attorney’s office, argued that the existing structure of the probe overlooked a key investigative angle. They sought to open a new front, based partly on publicly available evidence, including from social media, that linked some extremists involved in the riot to people in Trump’s orbit — including Roger Stone, Trump’s longest-serving political adviser; Ali Alexander, an organizer of the “Stop the Steal” rally that preceded the riot; and Alex Jones, the Infowars host.

[snip]

According to three people who either viewed or were briefed on Cooney’s plan, it called for a task force to embark on a wide-ranging effort, including seeking phone records for Stone as well as Alexander. Cooney wanted investigators to follow the money — to trace who had financed the false claims of a stolen election and paid for the travel of rallygoers-turned-rioters. He was urging investigators to probe the connection between Stone and members of the Oath Keepers, who were photographed together outside the Willard hotel in downtown Washington on the morning of Jan. 6.

[snip]

D’Antuono called Sherwin. The two agreed Cooney did not provide evidence that Stone had likely committed a crime — the standard they considered appropriate for looking at a political figure. Investigating Stone simply because he spent time with Oath Keepers could expose the department to accusations that it had politicized the probe, they told colleagues.

D’Antuono took the matter to Abbate, Wray’s newly named deputy director. Abbate agreed the plan was premature.

It’s genuinely hard to believe this was the plan. To be sure, FBI did investigate Stone’s ties to the Oath Keepers, starting no later than March 2021. But that wasn’t the obvious route to get to Trump.

The route to get there, importantly, was via a route that Bill Barr had affirmatively dismissed in advance of the attack: through the Proud Boys, not the Oath Keepers. Stone’s ties to the Oath Keepers was not obviously criminal; it still may not be. His ties to the Proud Boys are central.

In any case, Steve D’Antuono — who stalled the stolen documents case investigation last summer — shot down this angle of the investigation early on.

The initial decision to exclude Trump came from a guy who had presided over a politicized DOJ

Michael Sherwin — who as US Attorney played a role in killing investigations into Trump’s people in summer 2020 — did not include Trump in his summary of the investigation in March 2021.

[A]ccording to a copy of the briefing document, absent from Sherwin’s 11-page presentation to Garland on March 11, 2021, was any reference to Trump or his advisers — those who did not go to the Capitol riot but orchestrated events that led to it.

[snip]

Sherwin, senior Justice Department officials and Paul Abbate, the top deputy to FBI Director Christopher A. Wray, quashed a plan by prosecutors in the U.S. attorney’s office to directly investigate Trump associates for any links to the riot, deeming it premature, according to five individuals familiar with the decision. Instead, they insisted on a methodical approach — focusing first on rioters and going up the ladder.

The strategy was embraced by Garland, Monaco and Wray.

This may or may not have been the right decision — but WaPo only mentions Sherwin’s role in Barr’s sabotage of ongoing Trump cases in passing.

Whether certain FBI decisions came from Steve D’Antuono or Chris Wray is unclear

Chris Wray absolutely comes off as gun-shy in this story, which is perfectly consistent with the way he threw his own agents under the bus in the wake of the DOJ IG Report on Carter Page.

Wray and his team sought to avoid even an appearance of top-down influence by having local field offices run investigations and make day-to-day decisions. In fact, when it came to the Jan. 6 investigation, agents noticed that Wray did not travel the five blocks from FBI headquarters to the bureau’s Washington field office running the investigation for more than 21 months after the attack. In that time, people familiar with the investigation said, he had never received a detailed briefing on the topic directly from the assistant director in charge of the office, Steven D’Antuono.

[snip]

D’Antuono, who was interacting with lawmakers and reporters, told colleagues: “Everybody keeps asking, ‘Where the hell is the FBI?’”

The answer they heard did not instill confidence. Top FBI aides told D’Antuono and Sherwin that Wray wanted to stay on as Biden’s FBI director. They said they would not put the top boss “out there” — in the public eye — because they feared any public comments might spur Trump to unceremoniously fire him.

I’m more concerned about Wray’s later actions — but the later timidity is described to have come from Steve D’Antuono, not Wray (and on the stolen documents investigation, Wray pushed for a more aggressive investigation, whereas D’Antuono pushed the slow it).

D’Antuono shot down an effort to pursue the Willard

In November 2021, when Thomas Windom asked to pursue the plotting in the Willard in November 2021, D’Antuono refused, and tried to get Windom to pursue militia ties instead.

At a meeting in November 2021, Windom asked D’Antuono to assist in a grand jury investigation, which would include subpoenaing the Willard hotel for billing information from the time when Trump lawyer Rudy Giuliani was working with Stephen K. Bannon, Boris Epshteyn and other Trump associates in their “war room.” Stone was staying there around Jan. 6 as well, in a different suite.

D’Antuono was skeptical. The investigative track sounded eerily similar to the Cooney proposal that had been shot down in February, he later confided to colleagues.

“I’m not serving subpoenas on the friggin’ Willard,” D’Antuono told Windom, according to a person familiar with their discussions. “You don’t have enough to issue subpoenas.”

This was absolutely the wrong decision, but it is yet another case where D’Antuono was thwarting the investigation. His refusal to investigate the Williard also should focus more attention on the treatment of Brandon Straka and others, because if the FBI hadn’t been so credulous months earlier, they would have had more evidence on the Willard.

800 words of this story pertain to Michael Sherwin’s firing

Sherwin’s firing for trying to force sedition charges is a distraction. Yet 800 words of this story focus on it.

While the story does show that under Chandler Phillips, there was uncertainty about direction of the investigation (Lisa Monaco’s office was micro-managing at that point, partly in an attempt to enforce consistency across hundreds of defendants, partly to ensure that more deliberate rioters were charged with felonies). But it does seem that the delay in getting Matthew Graves in place did delay a renewed focus on Trump. That’s Joe Biden’s fault.

The focus on Stewart Rhodes is a distraction

Similarly, the focus on Stewart Rhodes, as opposed to Enrique Tarrio, is a distraction.

The outstanding issue of whether to charge Rhodes and other militia leaders with seditious conspiracy quickly rose to the top of to-do lists for the two new appointees. It had been eight months since Sherwin directed his deputies to raise the idea in a memo to the office of the deputy attorney general.

A long story in which the Proud Boys investigation is treated as “other militia leaders” is a long story that doesn’t understand the most basic things about January 6.

Details about the decision not to pursue the fake electors are vague and at times inaccurate

The WaPo described that the original decision not to pursue the fake electors plot happened “about the same time,” as D’Antuono’s decision to shoot down Cooney’s Stone investigation without presenting a date.

About the same time, attorneys at Main Justice declined another proposal that would have squarely focused prosecutors on documents that Trump used to pressure Pence not to certify the election for Biden, The Post found.

Officials at the National Archives had discovered similarities in fraudulent slates of electors for Trump that his Republican allies had submitted to Congress and the Archives. The National Archives inspector general’s office asked the Justice Department’s election crimes branch to consider investigating the seemingly coordinated effort in swing states. Citing its prosecutors’ discretion, the department told the Archives it would not pursue the topic, according to two people with knowledge of the decision.

If that decision happened before Garland came in (as it appears to have), then the story is about how Garland chose to revisit and reopen the fake electors decision, not why he chose not to pursue it.

The story describes that when Lisa Monaco did publicly confirm DOJ was pursuing fake electors in January 2022, people were surprised to hear that.

Law enforcement officers, including some who would be called upon to join the investigation in ensuing months, were taken aback by Monaco’s comments because they had not been told work was beginning, and it was extremely rare for Justice Department officials to comment on ongoing investigations.

Behind the scenes, federal prosecutors in Michigan who received Nessel’s referral were waiting to hear from Monaco’s office about how Main Justice wanted to proceed. National Archives officials were dumbstruck; the Justice Department was suddenly interested in the fake electors evidence it had declined to pursue a year earlier.

One person directly familiar with the department’s new interest in the case said it felt as though the department was reacting to the House committee’s work as well as heightened media coverage and commentary. “Only after they were embarrassed did they start looking,” the person said.

In the weeks and days before Monaco’s announcement, DOJ had finalized exploiting Rudy’s phone (as I note below, the WaPo story doesn’t focus on Rudy). The DOJ pursuit of the fake electors plot included aspects and subjects the January 6 Committee never pursued. So it is virtually certain that Rudy’s phone, not just J6C, drove at least part of the renewed focus on this.

It took two months after this for the FBI — for D’Antuono and Wray — to open the investigation, and they did not open the investigation against Trump at first.

In April 2022, more than 15 months after the attack, Wray signed off on the authorization opening a criminal investigation into the fake electors plot.

Still, the FBI was tentative: Internally, some of the ex-president’s advisers and his reelection campaign were identified as the focus of the bureau’s probe, but not Trump.

Note, this is still two months before Cassidy Hutchinson’s public testimony, which had publicly been viewed as the first focus on Trump.

WaPo suggests that the first subpoenas in the fake elector plot went out on June 21, 2022 (which in any case would still be proof DOJ acted before the public hearing).

On June 21, 2022, the House select committee held a nationally televised hearing on fake electors — a topic the committee had, in contrast to the Justice Department, identified early on as a major target for investigation. Testimony revealed what the committee had learned in nine months: The Trump campaign had requested that fake elector documents be flown to D.C. in time to help pressure Pence.

[snip]

That day, FBI agents delivered subpoenas about electors for Trump to state lawmakers in Arizona. The next day, agents served subpoenas to people who signed documents claiming to be Trump electors in Georgia and Michigan.

But as I note below, the first fake electors subpoenas went out a month earlier, by May 25. This part of the narrative is misleading at best.

WaPo suggests there was an inordinate delay in interviewing fake electors.

In several cases, before the special counsel’s office got in touch, witnesses in the fake electors scheme hadn’t heard from the FBI in almost a year and thought the case was dead. Similarly, firsthand witnesses to Trump’s Jan. 2, 2021, call to Georgia Secretary of State Brad Raffensperger — in which Trump asked him to “find” enough votes to win that state — were not interviewed by the Justice Department until this year, after Smith’s team contacted them.

It’s not clear whether this is true at all. It has persistently taken 6 months or more to exploit cell phones. The Boris Epshteyn interviews in April took place on that schedule, even with complications of claiming work product with Rudy.

This is, rather, consistent with much of the January 6 investigation, or any investigation. All the more so given increasing signs that the January 6 and stolen documents case is intersecting at Trump’s PAC, which is not discussed in the article.

The most damning part of this story for DOJ leaves out the Rudy phones and the May subpoena. Including those two things, though, really undermines the narrative about that prong of the investigation.

The gaps in the WaPo story

There are many things not mentioned in this story, which betray real blind spots in the sourcing. Those include:

• The failure by WFO under Steve D’Antuono to prevent January 6. D’Antuono is good at playing the press, and some quotes in here suggest that he was pushing for more aggressive investigation and Wray was resisting. Tellingly, then, this story doesn’t even mention — much less attempt to explain — why the FBI under D’Antuono failed to act on intelligence predicting January 6 (and indeed, kept Proud Boys on as informants targeting “Antifa” even as they were planning to come to DC for January 6). That’s where this story begins, yet it’s not included here.
• Brandon Straka and similarly other well-connected VIPs. Brandon Straka got credit for cooperating in February and March 2021 interviews; he was in a position (and did) provide evidence about ties to the Stop the Steel investigation and the Willard. But the FBI — led by Steve D’Antuono, who also obstructed the investigation into the stolen documents — proved remarkably credulous with Straka and similar witnesses. A different treatment of Straka may well have led to far different results. Yet Straka is not mentioned here.
• The Proud Boys’ history of teaming with Roger Stone to sow violence. According to the story, Michael Sherwin set his sights on the Oath Keepers and that initiative led to the sedition conviction of Stewart Rhodes and others. At sentencing, the sedition conviction proved important only for Rhodes and Kelly Meggs; everyone else was treated similarly as obstruction defendants, even with terrorist enhancements. But the more obvious starting point to understand Trump’s ties to January 6 — and an absolutely critical one given how bodies led by Alex Jones made the attack successful — is the Proud Boys. Given DC USAO’s treatment of the threats Stone made with Enrique Tarrio against Amy Berman Jackson in 2019, the focus on the Oath Keepers as distinct from the Proud Boys is inexcusable.
• Rudy Giuliani’s phone. In September 2021, DOJ made a decision to do a privilege review on Rudy Giuliani’s phone that would access all information on his phones, not just the Ukraine-related topics the warrants to obtain the phones targeted in April 2021. Rudy has since confirmed that this included all the January 6 related material he admits to have had in his possession when the phones were seized in Lisa Monaco’s first week. It is absolutely certain that this should have produced information on the fake elector plot, starting in November 2021, yet WaPo doesn’t mention it.
• The May 2022 Fake Electors subpoenas. The story implies DOJ first sent out subpoenas in the fake elector plot in June 2022. That’s false: the first subpoenas went out in May 2022. Importantly, there were names on those subpoenas that weren’t the focus of J6C’s public investigation (and in any case, preceded the public hearings). [Update: As Kyle Cheney noted, DOJ also obtained the email accounts of John Eastman and others, three of four lawyers.] That suggests that some of this investigation came from DOJ’s own work, not J6C’s.
• Sidney Powell. The investigation into Sidney Powell, started no later than September 2021, is not mentioned in this piece. It’s unclear what became of that investigation, but DOJ did pursue it as a prong of the investigation at a time when, the story suggests, DOJ was not pursuing any Public Integrity prong of the investigation.
• January 6 Committee’s delayed sharing. Some of this story is told from the perspective of the January 6 Committee. Yet it doesn’t mention that the committee’s decision to delay sharing of its transcripts did real and predictable damage to the Proud Boys case, and withheld tools from DOJ they could have used to flip witnesses six months earlier than they did.

Ultimately, this is a story first and foremost about Steve D’Antuono, who left the FBI in November. And I suspect it is just scratching the surface on the story about him.

The government has asked for — and Trump and Walt Nauta’s lawyers have not objected — to a protective order in the stolen documents case. That’s utterly routine — though sometimes there is a stink about the terms of a protective order, which didn’t happen here.

The actual protective order itself does not include extra restrictions to prevent Trump from tweeting shit out — as his Alvin Bragg protective order did — but it does require the defense to make everyone who reviews discovery to sign a protective order as well (sometimes defendants unsuccessfully object to this on Sixth Amendment grounds because it provides a way to track a defendant’s own investigation).

The motion itself has attracted a good deal of attention because of this language, describing why they need to keep the discovery confidential: There’s an ongoing investigation.

The materials also include information pertaining to ongoing investigations, the disclosure of which could compromise those investigations and identify uncharged individuals

This makes more explicit what a description of needing to send this indictment back to a grand jury in DC, in the motion to seal the indictment, already implied. DOJ needed to tell grand jurors in DC a story about how much work Donald Trump and Walt Nauta did to withhold documents from the FBI and the Archives, in part so they could load them on a plane to Bedminster.

Which is why I want to look more closely at what else — besides information on an ongoing investigation — DOJ is trying to protect.

• personal identifiable information covered by Rule 49.1 of the Federal Rules of Criminal Procedure
• information that reveals sensitive but unclassified investigative techniques
• non-public information relating to potential witnesses and other third parties (including grand jury transcripts and exhibits and recordings of witness interviews)
• financial information of third parties
• third-party location information
• personal information contained on electronic devices and accounts

The first and second are routine — things like social security numbers and FBI techniques. The last, personal information on devices and accounts, is a nod to a great deal of content obtained in this investigation (including the pictures of stolen documents that appear in the indictment). Maggie Haberman reported that Trump hated those pictures in the indictment. A review of the pictures yet to come may prove sobering to Trump.

DOJ is, from the start, providing grand jury transcripts, but that’s likely a testament to the number of people who testified under a subpoena (normally, there would be more interview reports and DOJ might provide grand jury transcripts closer to trial).

It’s the remaining two I find interesting: financial information, and location data, particularly given the documents that went to Bedminster, never to be heard from again, and the gaps in surveillance footage.

Location data showing that someone was standing in front of a known surveillance camera at a particular time might help to fill the gaps that currently exist in the footage. Their bank account might provide more context.

These details may give Trump’s attorneys — and perhaps more importantly, Nauta’s — a sense of where DOJ thinks this investigation might head. In other circumstances, DOJ might try to obscure that an Espionage Act indictment charging 31 different highly sensitive documents is just the appetizer in a larger investigation. But in this case, they want Trump — and perhaps more importantly, Nauta — to know that from the start.

Aileen Cannon just issued an order for attorneys for Trump or Walt Nauta to contact DOJ’s Litigation Security Group to start the process of applying for security clearances by tomorrow.

This is just one order. It likely came as a result of DOJ contacting the Litigation Security Group, probably asking that a Court Security Officer be appointed, for this case, and alerting them that lawyers will need clearances. The Court Security Officer will be entrusted with the classified information that will, one day, be submitted at trial, including by ensuring that any filings to the docket are properly redacted. Possibly, it was Litigation Security Group, and not prosecutors, who contacted Judge Cannon and told her she needs to issue an order.

In other words, someone probably nudged her and told her this is the normal thing to do, and she did it.

It’s a bit awkward, because Nauta won’t even be arraigned until June 27, so he may not have any Florida lawyers file an appearance before then. But they are on notice that — if they don’t already hold clearance — they need to get their clearances stat.

Still, it happened. It is the normal thing that should happen. Cannon set short deadlines for things to happen, suggesting that she’s not starting out by helping Trump delay.

So, amid widespread concern, but also given evidence that DOJ is treating Trump with great deference, Cannon did something normal.

Today, SCOTUS ruled that the government can retry someone in the proper venue if the original case is thrown out on venue grounds without violating double jeopardy.

The decision matters for Vladislav Klyushin, “Putin’s pen-tester,” whose sole post-trial challenge to his Boston insider trading conviction was on venue grounds. The decision makes it more likely he’ll just move to sentencing and maybe decide to make his life easier by cooperating with the US government.

Contrary to what a bunch of TV lawyers are saying — who adopted this challenge as their favorite explanation for why Jack Smith would charge Trump under 18 USC 793(e) in Southern District of Florida rather than DC — the decision would never have mattered for Donald Trump.

I can’t tell you whether Smith charged Trump in Florida because he knew Trump would have successfully challenged venue elsewhere, because he has a larger strategy in mind, or because he just believes you don’t look for easy wins if you’re going to charge the former President of the United States. I suspect it is all of those things, plus a decision to do as much as possible to convince Republicans that this prosecution is legitimate, not merely an attempt to get Donald Trump.

I know that when Smith spoke publicly for all of three minutes, he mentioned the Florida venue twice.

Frankly, all the hand-wringing about venue in SDFL plays into the Republican doubters’ hands, because it sure makes it sound like you are trying to get Trump rather than prosecute a crime.

I can tell you those who think DC would have worked misunderstand the charge and misunderstand the only way an 18 USC 793(e) charge was going to be viable against the former President.

As a reminder, these are the elements of offense of 18 USC 793(e), taken from the very same jury instructions that a jury in SDFL one day may receive. As I showed in August, there was already abundant evidence that Trump met the elements of offense.

There are five elements:

• Unauthorized possession (proof he had the documents after such time as he was no longer permitted to have them)
• National Defense Information (NDI) (reasons a jury would agree that these documents were closely held and important to keeping the US safe)
• Damage to the US (some kind of proof that Trump knew both that these documents could damage the US and that classified information could generally)
• Willful (proof that he knew he had the documents, as distinct from — like Pence and probably Biden — he just accidentally removed them from his office along with other papers)
• Refusal (some proof that he didn’t just not return the documents, but refused to do so)

To charge a former President — as distinct from someone who had clearance and brought stuff home from work — you have to prove two things: One, he knew he had  documents that remained classified after he left the Presidency, and two, that after such time as he realized he still had classified documents, he refused to give them back.

Biden and Pence discovered they had unauthorized possession of classified documents and they rushed to give them back.

By July 2021 — when Trump bragged about having documents that remained classified to a ghost writer — Trump knew he had unauthorized possession of classified documents. The Archives, Trump’s lawyers, and DOJ told him over and over that he had to give them back.

And then, in two different incidents, he took classified documents and removed them from a set of other documents that he did give back. That’s the refusal.

You do not have a crime with which you can charge a former President — as distinct from someone whose possession of classified documents would be unauthorized once he brought them outside the SCIF he had agreed to hold them in — until such time as he realizes he has them, someone asks for them back, and he refuses.

It is the refusing to give the documents back that is the provable crime, not the possession per se.

And Trump’s two big refusals — the two times he went to great efforts to sort through boxes personally to cull out documents he wanted to keep rather than return — were both in Florida, both long after he left the White House.

According to the indictment, Trump committed the act of refusing to give documents back under 18 USC 793(e) twice: once, from November 2021 until January 2022, when having been convinced he had to return documents, he went through box after box and carefully curated the boxes he returned on January 18, 2022 to keep some. The proof that he refused to give everything back in January 2022 is that there were still 38 classified documents when Evan Corcoran conducted a search in June, ten of which are charged as separate counts.

Trump refused again in May and June 2022, when he duped Evan Corcoran into claiming he had done a diligent search when in fact Trump had made sure that Corcoran would only search 30 of the 64 boxes Trump knew he still possessed. The proof that he withheld classified documents in June are the 100-some classified documents that the FBI found him to still have in his possession on August 8 of last year, 21 of which are charged as separate counts.

Jack Smith’s decision to charge this case in Florida — knowing full well he might face Aileen Cannon — was a decision about whether he could prove the elements of the offense of a crime that happened in Florida.

He is provably still considering charging crimes that happened in DC. He might even be contemplating charges for crimes that happened in New Jersey. Or maybe he is contemplating charging crimes that started in DC and ended in New Jersey.

I suspect we’re going to be surprised with the crimes he does charge, as virtually all the people saying this could have been charged in DC were surprised that he did choose to charge 18 USC 793(e), rather than just obstruction.

I wasn’t surprised. I laid out exactly how it would look last August; the big surprise to me are the pretty pictures proving Trump’s possession of these documents in Florida.

I also think virtually everyone is imagining that Smith is searching for the one trial to take Trump down, rather than making decisions about a package of conduct about which he might be able to reach a just resolution for the public interest.

I personally doubt an 18 USC 793(e) trial will happen in Florida (or elsewhere), because 793 prosecutions rarely go to trial.

They plead out.

And I promise you that Jack Smith would prefer to get a plea agreement with Donald Trump — however improbable that may seem to us now — than air 31 of the country’s most classified documents at trial.

The only prosecutorial decision Jack Smith has made public thus far is to charge a crime in Florida that happened in Florida. And none of us know how that decision fits in with the other prosecutorial decisions Smith might make or may already have made.

When I first read this WaPo article yesterday, I was struck by two things: first, the revelation that when Judicial Watch’s Tom Fitton appeared before a Jack Smith grand jury early this year, he was asked both about his central role in convincing Donald Trump he could rely on a case he, Fitton, lost, to justify stealing thousands of government documents (that’s the testimony we knew about), but also his role in January 6.

Fitton, who appeared before the grand jury and was questioned about his role in both the Mar-a-Lago documents case and the investigation into the Jan. 6, 2021, attack on the U.S. Capitol, acknowledged he gave the advice to Trump but declined to discuss the details of their conversations.

I wasn’t aware that Fitton had much of a role in January 6.

I was also shocked that, in the spite of the grave damage Fitton’s crackpot advice had already done to Donald Trump’s future, he was nevertheless permitted to be there with the accused felon Monday night, dining on what was undoubtedly overcooked filet mignon, as Trump and his supporters discussed his plans for beating the rap.

In an interview Wednesday, Fitton said he dined with Trump on Monday night at his club, eating filet mignon with the former president one day before his first court appearance on the document charges. “I saw him last night; he’s in a good mood. He’s serious and ready to fight under the law.”

On top of the sheer stupidity of letting Fitton anywhere close to Trump in the wake of his indictment, Fitton’s presence presumably would breach any privilege claim lawyers present could make in the future.

The report that Fitton has been chatting with Trump this week explains some of the insanely stupid things Trump has said on his failing social media site, not to mention Trump’s deceit in claiming he would see everything presented to the grand jury, much less have already seen it before any protective order is signed and discovery is provided.

By invoking Clinton’s Socks, his term for Fitton’s failed lawsuit, Trump was falsely claiming to have inside knowledge of something that would have legal merit, presumably so his followers would believe Trump had some viable defense (that they would send him money to fund).

I was not, however, surprised by the sheer stupidity of the opinions Fitton expressed to WaPo.

“I think what is lacking is the lawyers saying, ‘I took this to be obstruction,’” said Fitton. “Where is the conspiracy? I don’t understand any of it. I think this is a trap. They had no business asking for the records … and they’ve manufactured an obstruction charge out of that. There are core constitutional issues that the indictment avoids, and the obstruction charge seems weak to me.”

Several other Trump advisers blamed Fitton for convincing Trump that he could keep the documents and repeatedly mentioning the “Clinton socks case” — a reference to tapes Bill Clinton stored in his sock drawer of his secret interviews with historian Taylor Branch that served as the basis of Branch’s 2009 book documenting the Clinton presidency.

Judicial Watch lost a lawsuit in 2012 that demanded the audio recordings be designated as presidential records and that the National Archives take custody of the recordings. A court opinion issued at the time stated that there was no legal mechanism for the Archives to force Clinton to turn over the recordings.

For his part, Fitton said Trump’s lawyers “should have been more aggressive in fighting the subpoenas and fighting for Trump.”

It’s not just that Fitton was allowed to share these legally incorrect opinions with Trump. It’s that he badly misunderstands how his own advice about the “Clinton Socks” case might be viewed as an agreement with Trump to enter into a conspiracy to withhold classified documents.

Remember, after Trump fucked up releasing the Crossfire Hurricane documents, Fitton went after them himself, only to reveal that the collection was just one dumbass binder.

Anyway, after puzzling through what role Tom Fitton might have had on January 6, I started reading through a motion to compel that Ruby Freeman’s attorneys served on pardoned felon Bernie Kerik last week. Bernie was the guy who mailed a key strategy document to Mark Meadows on December 28, 2020. In addition to making clear that Bernie was sharing the document to “move legislators,” not win court cases, it included exhibits laying out the claims about Freeman and her daughter Shaye Moss that Rudy Giuliani would subsequently make publicly — that Freeman counted suitcases of votes multiple times after kicking out poll watchers, using a false claim of a water main break as the excuse — claims that Freeman alleges amount to defamation.

To be clear: those claims about Freeman are false, as is the claim she was arrested for her actions. Thus the lawsuit.

Freeman’s lawyers filed a motion to compel because when Kerik first responded to their subpoena last year, his attorney — Tim Parlatore — simply provided a link to the stuff that Kerik had provided to the January 6 Committee. Since then, Freeman’s lawyers argue, Rudy has disclaimed any work privilege claim over materials prepared for legislatures, as opposed to lawsuits. But when Freeman’s lawyers have gone back to Kerik to get the materials he withheld from J6C under a work product privilege claim that (they argue) Rudy has since waived, Parlatore explained there had been a “technical glitch” that creates some difficulties in consulting with Rudy’s attorney on the issue.

Relations between Parlatore and Freeman’s team have been sour for some time. Around the same time in December when Parlatore was telling a DC grand jury that he had done a diligent search of Bedminster — where at least two and probably a bunch of classified records have been sent, never to be seen again — he was telling Freeman’s team that Kerik didn’t have some documents that Freeman had obtained from other sources.

After Plaintiffs spent months negotiating with Mr. Kerik’s counsel and made more than a dozen unsuccessful attempts to effectuate personal service on Mr. Kerik,5 counsel for Mr. Kerik accepted service of the First Kerik Subpoena on November 14, 2022. (See Houghton-Larsen Decl. ¶ 4.) On November 21, 2022, Plaintiffs agreed to narrow the requests and provided examples of emails produced during discovery that were sent to Mr. Kerik but were not present in his production to the Select Committee. (See id. ¶ 5.) On December 21, 2022, Mr. Parlatore responded that “Mr. Kerik has looked and we do not seem to have any additional responsive documents to provide.” (See id. ¶ 6.) Mr. Kerik has never explained why he does “not seem to have” any of the example communications Plaintiffs provided to him, on which he was copied, and which have been produced by other parties.

By the time former Trump attorney Parlatore claimed a “technical glitch” was creating delays on June 7, the day before Trump was indicted, he also explained that, “there are other more pressing matters that have taken priority.”

The motion to compel includes fragments of both Rudy’s and Kerik’s March depositions in this case. In Kerik’s, Parlatore made a series of dickish responses to Freeman attorney Annie Houghton-Larsen’s questions that Parlatore deemed to ask for work product information, precisely the privilege claim that has since started to collapse.

In Rudy’s, there are a slew of hilarious responses showing how dissolute Rudy has gotten, such as when, struggling to come up with Sidney Powell’s name, he called her the Wicked Witch of the East.

Q. I’ll ask you about who was on it, but the team that was assembled at that point in time, is that the team that Ms. Bobb is referring to as the “Giuliani legal team”?

A. Correct.

Q. Now you can tell me, who was on this team?

A. It was myself, Jenna Ellis, Victoria Toensing, Joe DiGenova, Boris Epshteyn, originally.

We added Christina after about two weeks, and we added — oh my goodness, of course, her name will escape me.

Come on guys, help me. The wicked witch of the east.

Q. It’s — really, in this forum, I’m interested in what you remember.

A. Oh, I remember who it is. I just can’t remember the name. I block it out.

Q. We can come back to it.

A. On purpose. Everybody knows who it is.

Q. We can come back to it.

Anyone else aside apart this —

A. Sidney.

Q. Sidney?

A. It was Sidney.

Q. Sidney who?

MR COSTELLO: How could you forget that?

Q. Are you referring to Sidney Powell?

A. Sidney Powell, yeah.

Both men, however, struggled when asked about this passage of the strategy document, showing who, on December 28, its author considered key members of their team (Freedom Caucus members make the list on the following page), both struggled to remember who some of the members were.

There was little doubt that BK was Kerik and both ultimately decided that BE was Epshteyn.

But both simply couldn’t imagine what close Boris associate “SB” might be. Here’s Kerik’s epic struggle with the question:

Q. Okay. This might help you. Can we please turn to page 6.

Okay. So about two-thirds down the page it says, “Key team members. Rudy Giuliani.”

And then, “BK.” I’m assuming that’s you.

A. That’s probably me.

Q. Okay. “KF.” Do you know who that is?

A. Katherine Friess.

Q. And then, “Media advisors. SB.” Who do you think that is?

A. No idea. Well, I went through this before.

THE WITNESS: Who did I do this with? J6?

MR. PARLATORE: Probably.

THE WITNESS: Yeah. Boris Epshteyn would have been the BE. SB, I have no idea what that  is.

BY MS. HOUGHTON-LARSEN:

Q. Okay.

Sadly, Rudy dodged the TF question altogether and the excerpt cut off before Kerik was quizzed about the same question.

So we will have to wait to learn whether Tom Fitton is the TF who did influencer outreach on the effort to steal the election.

But it might help to explain why he was still welcome in the Boris Epshteyn-led effort to pursue political grievance rather than a sound legal defense.

Even before Trump’s Espionage Act indictment was made public, Trump was attempting to politicize his stolen documents prosecution by demanding — via a Truth Social post— a meeting with Merrick Garland, who is not overseeing the case. Virtually every journalist fell for Trump’s bait, reporting the demand without noting that Jack Smith is the prosecutor overseeing the investigation into Trump, not Merrick Garland.

Garland rightly refused the meeting.

Since then, paid propagandists have been chanting out “Joe Biden Merrick Garland Joe Biden Merrick Garland” talking points like wind-up toys, because repetition is how you get low-information Trump supporters and members of Congress to believe false claims.

This strand of propaganda has worked. The other day, WSJ’s Sadie Gurman, after reviewing how assiduously Merrick Garland remained out of the process, stated as fact that this is a political prosecution.

When a grand jury returned the first-ever federal indictment of a former president last week, Attorney General Merrick Garland made a point of suggesting he was nowhere near the team handling the case.

He strolled into Justice Department headquarters in downtown Washington with his deputy late Thursday afternoon amid intense speculation about charges against Donald Trump and told a Wall Street Journal reporter he had been out getting a Covid vaccine.

[snip]

In keeping with that philosophy, Garland kept details of the indictment and its timing secret from Biden, who said Friday, “I have not spoken to him at all, and I am not going to speak with him.”

The attorney general also declined to meet with Trump’s lawyers, who requested a sit-down in the days leading up to the indictment, leaving the gathering instead to Smith and other Justice Department officials.

[snip]

Yet Garland now presides over what may be the highest-profile political prosecution ever, which is certain to be a prominent factor in the 2024 election. [my emphasis]

Gurman also suggested that Garland somehow engaged in politics by letting Jack Smith unseal the indictment that was sealed to protect security, not to let Trump sow violence in a vacuum.

But Garland didn’t object to prosecutors asking a court to unseal the indictment on Friday, well before Trump’s Tuesday arraignment when it would normally be made public, a person familiar with the matter said.

Finally, Gurman immediately — and, possibly, falsely — suggested that Garland “faces a call” on whether DOJ should charge Hunter Biden.

Adding to the political overtones, Garland also faces a call on whether the Justice Department should file charges against Biden’s son, Hunter, who is under investigation related to his taxes and whether he made a false statement in connection with a gun purchase. Hunter Biden has said he acted legally and appropriately.

Garland only faces a call if he has to approve an indictment. If David Weiss chooses not to prosecute, Garland is not going to override the Trump-appointed US Attorney who has been retained to make this decision himself.

Since yesterday’s arraignment, the false claim that Joe Biden and Merrick Garland have pursued the prosecution of Biden’s rival has gotten crazier still, especially on Murdoch properties other than the one where Gurman invented a political prosecution where there is none. As Trump wailed about his plight at his club yesterday, for example, Fox’s chyron accused Biden of being a “wannabe dictator” because a process entirely insulated from Biden resulted in Trump’s arrest. (Natasha Korecki posted this screen cap.)

There’s something especially noxious about the degree to which actual journalists like Gurman are parroting this line (Jamison Fraser notes a similar example in polling coverage).

Donald Trump is being treated no differently than Biden himself, to say nothing of the targets of John Durham’s abusive four year investigation.

Consider how absurd it is that Trump, lashing out, promised to appoint “a real special ‘prosecutor’” to go after Biden and “the entire Biden crime family.”

The Biden Administration already did that, Bucko!!! It currently has two Trump appointed prosecutors, David Weiss and Robert Hur, conducting investigations into Biden’s son and Biden himself. You’re so inadequate you can’t even out-prosecute Biden than Biden himself is already doing!

Yet, in response to this tweet, almost no journalists noted that Joe Biden’s Administration already did that — retain or appoint two separate Trump-appointed prosecutors to investigate Biden himself.

And that’s a hint of what is affirmatively missing from the coverage of real journalists like Gurman.

It’s that Republicans, and Trump himself, have demanded what they’ve gotten with Merrick Garland’s distance from Jack Smith’s prosecution. Republicans, and Trump himself, have repeatedly demanded that Garland stay out of Weiss’ investigation. They even wailed that Biden was being treated specially after the discovery of classified documents at the Penn Biden Center, until it became clear a preliminary Special Counsel had been appointed within days, in Biden’s case, not months.

Most importantly, none of these Republicans wailing about Garland’s distance from the Jack Smith investigations (wailing because it demonstrates their claims that this is a political prosecution to be obvious bullshit) complained at all after John Durham used the independence Garland afforded him to engage in one after another instance of shocking prosecutorial abuse.

Republicans, and Trump himself, did not complain that Durham investigated for four years even though no crime predicated his investigation (a far worse abuse than Durham’s complaint that Crossfire Hurricane was opened as a Full rather than Preliminary investigation).

Republicans, and Trump himself, did not complain that Durham threatened witnesses and lawyers (and lawyers complained to Merrick Garland in real time; they didn’t wait until a target letter went out to try to excuse their own counterproductive legal advice).

Republicans, and Trump himself, did not complain that in both trials, first his lead prosecutor and then Durham himself, were caught scripting improbable or affirmatively misleading testimony from witnesses.

Republicans, and Trump himself, did not complain that Durham charged Michael Sussmann for coordinating with Hillary’s top staffers months before interviewing any of those staffers and discovering it wasn’t true.

Republicans, and Trump himself, did not complain that Durham charged Igor Danchenko relying, in significant part, on the rants Sergei Millian made on his Twitter feed, only to discover, months later, that Millian was unwilling to repeat the same claims at trial under oath.

Republicans, and Trump himself, did not complain that Durham prosecuted a man for making a literally true statement to the FBI.

Republicans, and Trump himself, did not complain when John Durham accused Sussmann and Danchenko anew of lying to the FBI after two juries told him he couldn’t prove that claim.

Republicans, and Trump himself, did not complain that John Durham fabricated a claim that even the Russians didn’t make against Hillary and used it as his excuse to continue his investigation for three more years.

Republicans, and Trump himself, did not complain when John Durham affirmatively misrepresented the YotaPhone white paper; instead, Trump used Durham’s misrepresentation to justify making death threats against Michael Sussmann.

Republicans, and Trump himself, knew how much independence Merrick Garland was giving Jack Smith, because Durham told them that he committed all that abuse and yet Garland let him continue unimpeded.

Finally, we want to thank you and your Office for permitting our inquiry to proceed independently and without interference as you assured the members of the Senate Judiciary Committee would be the case during your confirmation hearings to become Attorney General of the United States.

And long after it was clear that Garland had given Durham precisely the independence that Republicans, and Trump himself, had demanded, Trump is the one who forced the appointment of a Special Counsel by announcing his run six months ahead of his competitors. Trump took steps that led to someone completely independent investigating his suspected crimes, not Joe Biden, not Merrick Garland. And now he’s trying to pretend that he himself didn’t ensure someone independent would investigate his suspected crimes.

Jack Smith has been living by the rules Republicans demanded, and got, for John Durham.

I don’t expect Trump to care that Jack Smith has been operating under the same rules of independence that Garland gave Durham. Trump needs to claim this is political, to provide his boosters — and probably his own fragile ego — some explanation for this indictment other than that a grand jury of South Floridians determined there was probable cause he committed an unprecedented crime that made this country less safe. I expect Mike Davis to continue reeling out his knowingly false claims, Joe Biden Merrick Garland Joe Biden Merrick Garland. It’s what he is paid to do.

But journalists like Sadie Gurman should know better. Journalists like Sadie Gurman, after presenting proof that Jack Smith is operating with the same independence that John Durham did, owe their readers a description of what it means that this investigation has operated with independence. Journalists like Sadie Gurman should not be drawn in by attempts to delegitimize a prosecution only because Trump belatedly wants to change the rules he himself demanded.

Update: I’ve updated my stolen documents investigation resource page, with key documents, a bit of a timeline, all our posts on the case, plus other useful links (including to dockets of other 18 USC 793 cases).