Even Trump supporters are beginning to call on him to release the warrant used to search Mar-a-Lago Monday. In spite of serving as a source for multiple outlets yesterday, the lawyer who received the warrant, Christina Bobb, has refused to turn it over.

She’s probably refusing for several reasons. First, it’s likely that 18 USC 793 is among the suspected crimes cited on the warrant. If Trump admitted he’s under investigation for part of the Espionage Act, his supporters might be less likely to prepare for civil war, as they currently are doing. Plus, given the inconsistent numbers of boxes seized in Bobb-sourced stories (the WSJ reported at least 10 boxes were seized, Politico and WaPo reported that 12 were), it suggests the search warrant return is far more detailed than just listing boxes of stolen documents, but instead lists individual documents.

If the return looked something like, [and to be clear, this is strictly hypothetical, and my “yaddayadda” is a fake compartment name] …

1. Single existing copy of transcript of phone call between President Donald Trump and Ukrainian President Volodymyr Zelenskyy, July 25, 2019, TS/SCI/SAR-YADDAYADDA/NF
2. Single existing copy of hand-written notes of meeting between President Donald Trump and Russian President Vladimir Putin, July 16, 2018, TS/SCI/SAR-YADDAYADDA/NF
3. Transcript of NSA intercept of Saudi intelligence official in advance of Turkey operation involving Jamal Khashoggi, September 29, 2018, TS/SCI/SAR-YADDAYADDA/NF
4. NSA targeting list for Russia, dated January 15, 2021, TS/SCI/SAR-YADDAYADDA/NF (see this post)

…Then the gravity of Trump’s crime would become immediately apparent.

Plus, Bobb didn’t receive the most interesting part of it, the affidavit the FBI used to obtain the search warrant.

So I wanted to write up what an affidavit would likely include, based on the public understanding of the investigation.

For comparison, here are the warrants for Reality Winner and Josh Schulte, both of which were also, at least in part, warrants for a 793 investigation. Here are warrants to search Roger Stone and Oath Keeper Jeremy Brown’s houses, both Federal searches in Florida related to investigations conducted in DC (the search of Brown’s house even found allegedly classified documents, albeit only at the Secret level). Here’s the warrant Robert Mueller’s team used to get Michael Cohen’s Trump Organization emails from Microsoft.

Cover Page

The cover page would include the address to be searched, 1100 S. Ocean Blvd, Palm Beach, FL. It would name the magistrate docket for the warrant, 9:22-mj-08332, references to Attachment A describing the premises to be searched, and Attachment B, the description of things to search for, as well as the Affidavit.

It would have checkboxes checked, listing that the search was for evidence of a crime and to retrieve contraband.

It would list the crimes under investigation — according to public reports, probably 40 USC 2201-2209, 18 USC 2071, and 18 USC 793.

It would be dated and signed by Magistrate Judge Bruce Reinhart.

Attachment A

Attachment A would include a description of Mar-a-Lago, probably with a nifty picture of the garish resort, possibly also pictures of the basement storage area that investigators saw in their June visit. It would likely mention Trump’s hotel safe in the bridal suite.

Attachment B

Attachment B would authorize seizure of all documents relating to violations of the statutes in question, so probably 40 USC 2201 and 18 USC 793, with bullet points stemming from what is covered under the PRA and what is covered — defense information — under the Espionage Act.

No computer files were described to have been seized, so it would consistent entirely of paper seizures.

Affidavit

This would include:

• Several paragraphs describing the affiant’s background and training
• An assertion that the affiant believed there was probable cause for the subject offenses
• The statutory language, basically a cut-and-paste describing the elements of the offense
• Language about classification, including the various levels of classification
• Language about Presidential Records
• Language about 32 CFR sections 2001 and 2003, which cover the storage of classified information

Then there’d be a probable cause section that would include:

• A description of who is under investigation (whether it’s just Trump, or whether his staffers are as well)
• A reference to the Archive’s February 2022 request that DOJ investigate Trump’s document theft
• Background on the year-long effort leading up to the Archives’ request to get Trump to return stolen documents, including the specific records the Archives identified that Trump had withheld (CNN has a timeline here)
• Other evidence of Trump’s refusal to abide by Presidential Records Act
• Other evidence of Trump’s failures to protect classified information (particularly if FBI knows of any instances from after he left the presidency)
• The outcome of the investigation into Mike Ellis’ efforts to retain highly sensitive NSA documents at the White House as staffers were packing boxes
• The Archives’ three statements on the effort to obtain the documents
• A description of what aides told the FBI in interviews about the stolen documents in April and May
• Testimony about efforts to keep uncleared staffers from accessing boxes that included classified information
• A description of the May subpoena to the Archives for the classified documents stolen
• A summary of the classified documents found in the 15 boxes turned over last year, possibly with examples of the most sensitive documents
• Some explanation of why DOJ believes that these documents weren’t actually declassified by Trump before he stole them
• A description of the June 3 meeting at Mar-a-Lago, which show three really key parts of the probable cause:
  • Acknowledgement from Trump lawyers that he remained in possession of stolen documents
  • A description of things the lawyers said that proved Trump was treating these as classified documents
  • A description of the storage location in the basement, including why it did not meet the standards for storage of classified documents
  • Possibly a description of documents seen on that visit that would qualify as potentially classified Presidential Records
• A description of the letter asking Trump to better secure the documents
• A description of the subpoena for surveillance footage from Mar-a-Lago, including anything suspicious on it
• A list of known Presidential Records that had not yet been shared with the Archives

The affidavit would explain why the items being searched for are necessary to investigate the crime, which would explain:

• FBI needed to obtain the documents to see if they were Presidential Records not otherwise shared with the Archives
• FBI needed to obtain the documents to see if they were defense information
• DOJ needed to secure the documents because they are all the property of the Archives

Finally, the affidavit would include a conclusion stating that all this amounts to probable cause that Trump was in possession of documents that were covered by the PRA, some subset of which were believed to be classified.

The Ranking Member of the Senate Intelligence Committee went on a four tweet rant yesterday, complaining that the FBI is conducting an investigation into the suspected large-scale theft of highly-classified materials.

The House Minority Leader used the instance of a lawfully executed warrant in support of a national security investigation to call for an investigation not into the man suspected of stealing code word documents, but instead, of Attorney General Merrick Garland for authorizing this investigation into a classified breach.

The Ranking Member of the House Intelligence Committee, Mike Turner, more appropriately asked for a briefing, but even after admitting he hadn’t had one yet and claiming (dubiously) that he didn’t know of the suspected massive theft of highly classified information, scoffed at the seriousness that such a large-scale compromise of classified information might cause.

Mitch McConnell weighed in, belatedly, to demand transparency about an investigation into stolen secrets.

The country deserves a thorough and immediate explanation of what led to the events of Monday. Attorney General Garland and the Department of Justice should already have provided answers to the American people and must do so immediately

These men are all entrusted with the protection of Americans intelligence secrets. But when faced with a choice of putting party or America’s security first, they immediately rushed to protect their party, even while admitting they don’t know the facts of the underlying investigation.

And in spite of the fact that these men have all engaged in minimizing the large-scale compromise of classified information with their rants, virtually every press outlet has reported their comments as more horse race journalism, one side against the other, as if top Republicans attacking the FBI for trying to protect classified secrets is not itself newsworthy.

The lazy-ass press couldn’t even be bothered to show how all these men, especially Marco Rubio, made wildly inconsistent statements when Jim Comey or Hillary Clinton were suspected of mishandling far less sensitive intelligence. Nor did the press bother asking these men about the destruction of DHS (including Secret Service) and DOD records that Congress itself had already asked for before magnifying their comments.

They just let these men turn this into a partisan fight rather than a serious legal investigation, all for free!

Update, 8/10PM: Included Mitch McConnell’s statement.

From the start of the reporting on Trump’s theft of classified documents, commentators have suggested that Trump was only under investigation for violations of the Presidential Records Act or 18 USC 2071.

Reports that in June, one of the four people who met with Trump’s lawyers on this issue was Jay Bratt, head of Counterintelligence & Export Control Section at DOJ, which investigates Espionage, makes it highly unlikely that those are the only things under investigation.

In early June, a handful of investigators made a rare visit to the property seeking more information about potentially classified material from Trump’s time in the White House that had been taken to Florida. The four investigators, including Jay Bratt, the chief of the counterintelligence and export control section at the Justice Department, sat down with two of Trump’s attorneys, Bobb and Evan Corcoran, according to a source present for the meeting.

At the beginning of the meeting, Trump stopped by and greeted the investigators near a dining room. After he left, without answering any questions, the investigators asked the attorneys if they could see where Trump was storing the documents. The attorneys took the investigators to the basement room where the boxes of materials were being stored, and the investigators looked around the room before eventually leaving, according to the source.

Even 18 USC 1924, which prohibits unlawfully taking classified information, would involve complications if the person who stole the materials were the former President. Admittedly, the fact that DOJ had an in-person meeting with Trump before conducting a search might mitigate those complications; Trump may be refusing to return documents rather than just not turning them over.

Still, it’s possible — likely even — that there are exacerbating factors that led DOJ to search Mar-a-Lago rather than just (as they did with Peter Navarro) suing to get the documents back.

Remember, this process started when the Archives came looking for things they knew must exist. Since then, they’ve had cause to look for known or expected Trump records in (at least) the January 6 investigation, the Tom Barrack prosecution, and the Peter Strzok lawsuit. The investigation into Rudy Giuliani’s influence peddling is another that might obviously lead to a search of Trump’s presidential records, not least because the Archives would know to look for things pertaining to Trump’s impeachments.

With that as background, Trump would be apt to take classified documents pertaining to the following topics:

• The transcript of the “perfect phone call” with Volodymyr Zelenskyy and other documents pertaining to his first impeachment
• Notes on his meetings with other foreign leaders, especially Vladimir Putin and Saudi royals, including Trump’s July 16, 2018 meeting with Putin in Helsinki
• Information surrounding the Jamal Khashoggi execution (and other materials that make Jared Kushner’s current ties to Mohammed bin Salman suspect)
• Policy discussions surrounding Qatar, which tie to other influence peddling investigations (for which Barrack asked specifically)
• Intelligence reports on Russian influence operations
• Details pertaining to security efforts in the lead-up to and during January 6
• Intelligence reports adjacent to Trump’s false claims of election fraud (for example, pertaining to Venezuelan spying)
• Highly sensitive NSA documents pertaining to a specific foreign country that Mike Ellis was trying to hoard as boxes were being packed in January 2021

For many if not most of these documents, if Trump were refusing to turn them over, it might amount to obstruction of known investigations or prosecutions — Barrack’s, Rudy’s, or Trump’s own, among others. Thus, refusing to turn them over, by itself, might constitute an additional crime, particularly if the stolen documents were particularly damning.

One more point about timing: An early CNN report on these stolen documents describes that a Deputy White House Counsel who had represented Trump in his first impeachment was liaising with the Archives on this point.

Longtime Archives lawyer Gary Stern first reached out to a person from the White House counsel’s office who had been designated as the President Records Act point of contact about the record-keeping issue, hoping to locate the missing items and initiate their swift transfer back to NARA, said multiple sources familiar with the matter. The person had served as one of Trump’s impeachment defense attorneys months earlier and, as deputy counsel, was among the White House officials typically involved in ensuring records were properly preserved during the transfer of power and Trump’s departure from office.

By description, this is likely either John Eisenberg (who hid the full transcript of the perfect phone call but who was not obviously involved in Trump’s first impeachment defense) or Pat Philbin (who was the titular Deputy White House Counsel and was overtly involved in that defense). If it’s the latter, then Philbin recently got a DOJ subpoena, albeit reportedly in conjunction with January 6. If so, DOJ might have recent testimony about documents that Trump was knowingly withholding from the Archives.

Less than an hour ago, a local Florida reporter, Peter Schorsch reported that FBI Agents had just left Mar-a-Lago.

Scoop — The Federal Bureau of Investigation @FBI today executed a search warrant at Mar-a-Lago, two sources confirm to @Fla_Pol. “They just left,” one source said. Not sure what the search warrant was about. TBH, Im not a strong enough reporter to hunt this down, but its real.

Scott Stedman, virtually alone of everyone hearing this, got confirmation that the FBI had conducted “court-authorized law enforcement activity” at 1100 S Ocean Blvd, Palm Beach, FL 33480.

Virtually everyone else — starting with Maggie Haberman — cited the resident’s inflammatory press release.

You’re all competent enough to find that yourselves.

Shit’s about to get real, because in a matter of minutes, virtually every reporter in the country subjugated themselves to Trump propaganda.

Update: Several outlets are reporting that this pertains to Trump’s suspected theft of classified information.

Per multiple sources speaking with CBS News, the search at Mar-a-Lago is related to the missing White House documents

I first published this post on the revelations about Brandon Straka’s misdemeanor plea on August 5 at 2:10PM ET.

I posted it about 29 hours after Judge Dabney Friedrich ordered the Probation Office to provide a report by September 30 about Straka’s compliance with probation; during a status hearing a day earlier, Friedrich admonished Straka about saying things publicly that conflicted with what he had said to the FBI in interviews and said to her at his plea colloquy.

I posted it about 28 hours after FBI Director Christopher Wray responded to one of the only questions raised in an SJC oversight hearing about January 6 that, “And then, of course, I have to be a little bit careful about what I say here but we are continuing to develop some of the more complicated parts of the investigation in terms of conspiracy charges and that sort of thing.”

I posted it minutes before a CPAC panel (sponsored, in part, by a Viktor Orbán-tied NGO) featuring Andy Biggs, Straka, and Kash Patel warning that  “Soros prosecutors” were instituting a “Democrat Gulag.”

Straka spent most of the rest of that day, Friday — the day after the judge overseeing his probation ordered more scrutiny into the sincerity of claims he made under oath and to the FBI — in a cage, performing the role of a jailed January 6 defendant counting the days until his release, crying.

Some spectators wept. Some threw money into the cage. Others came up close to mutter words of comfort and support to the emotionally distraught man inside, who was alternating sitting on a bare cot with his head in his hands, and writing sad slogans on a blackboard like “Where is Everyone?” Among those in the audience was Zuny Duarte, mother of Enrique Tarrio, the jailed ex-chairman of the Proud Boys facing seditious conspiracy charges for his role in the Capitol. One man, wearing a T-shirt saying “Correctional Officers for Trump 2020” pointed at his chest, making sure the “jailed” activist saw, and said “”I know how it works, man.”

During Thursday’s performance in the J6 cage, the man in the prison had been an actor. But on Friday, the man was none other than Brandon Straka, a self-proclaimed former liberal who founded #WalkAway, a social media campaign encouraging Democrats to ditch their party for the GOP. Straka was a vocal Stop the Steal proponent and activist, and landed in hot water with the feds when he filmed himself from the steps of the Capitol building on Jan. 6.

All of which makes me really glad that, in that post, I reiterated all the concerns I’ve raised in the past about Straka’s treatment, including that the deal given to Straka would backfire.

Plus, it’s not entirely clear whether such pleas will backfire down the road, given that prosecutors have little ongoing means to ensure cooperation, as they would with felony cooperators hoping to benefit from 5K letters supporting leniency at sentencing.

[snip]

At the time, it looked like a shitty deal by the government, and multiple researchers I know grumbled that the government simply didn’t know what a central role Straka had when they interviewed him just weeks after the riot.

Even in December, there was good reason to question whether DOJ had made a decent deal when it traded information about Stop the Steal organizers in exchange for a misdemeanor plea, rather than building their case, including Straka in a conspiracy to obstruct the vote certification, and then flipping him.

Now, with Straka openly mocking the entire DOJ investigation, there should be real questions at DOJ whether Straka is replaying the Mike Flynn or Jerome Corsi play, reneging on purported cooperation to sabotage the investigation into Trump and his associates.

As a reminder, in Corsi’s case, in an initial interview with Mueller’s prosecutors, they caught him making claims that conflicted with communications records DOJ already obtained. Then, they got him to admit to a grand jury that Stone had asked him to establish a cover story for his “Podesta time in a barrel” tweet in real time, just days after Stone tweeted it. But then — at a time when, Corsi claimed, he was in communication with Trump’s attorney Jay Sekulow, Corsi went on his podcast and amid a dramatic meltdown not dissimilar from the drama we’ve seen from Straka, revealed that prosecutors were trying to force him into a cooperation plea deal with the government. After that point, his interviews with Mueller were a conflicting mishmash that, whatever else they were, made his prior testimony largely useless in any prosecution. It’s likely that an investigation against him was among those referred by Mueller. But he’s also such a batshit crazy person, it’d be hard to hold him accountable for deliberately blowing up interviews with the government.

In Mike Flynn’s case, his competent Covington lawyers negotiated a ridiculously lenient plea deal (in my opinion, one of Mueller’s three greatest mistakes), one that would have gotten the retired General no jail time. During the period he was supposed to be cooperating, he remained in touch with SJC staffer Barbara Ledeen and her husband Michael and Nunes aide Derek Harvey, all of whom kept him apprised of Sara Carter-backed propaganda efforts and Republican Congressional efforts to discredit the investigation. In 2018, Flynn even sent Matt Gaetz a text pushing for more pressure on Mueller. Then, once Bill Barr was confirmed, Flynn fired his competent lawyers and replaced them with Sidney Powell, who with Barr’s collusion, invented a slew of reasons that undermined the investigation against Flynn (in the process, protecting Trump from any Flynn-related obstruction charges). The outcome for Flynn was probably worse. But in the process, Flynn convinced a lot of people who only too late came to understand that both he and Sidney Powell are completely unhinged when they claim that the investigation against him was not a sweetheart deal, but instead a gross abuse of prosecutorial authority.

In both cases, Trump associates or movement operatives identified a cooperating witness and instead turned them into a chaos agent undermining an ongoing investigation. Here, Straka is appearing on a panel with suspected participants in the coup attempt, Andy Biggs and Kash Patel, and cozying up with someone who called for “Marshall Law,” all at a time when DOJ seems to be working on charges arising out of his so-called cooperation.

Given Straka’s recent trajectory, two details of his case from after the time his limited cooperation was made public are noteworthy. First, while Stuart Dornan, a former FBI Agent located (like Straka) in Nebraska remains on Straka’s team, in January, Straka added Bilal Essayli to his legal team, who appears to have taken the lead since, with it striking a far more confrontational tone.

Additionally, Straka’s team specifically — and successfully — objected to the Probation Office’s recommendation that Straka’s social media be monitored.

Brandon also objects to the recommendation by the Probation Officer that he be subjected to a discretionary condition of Probation that monitors his electronic communications service accounts, including email accounts, social media accounts, and cloud storage accounts. Brandon also objects to his financial activity being monitored by the Probation Office. These discretionary conditions of Probation are not sufficiently relevant to the offense committed. In United States v. Taylor, 796 F.3d 788 (7th Cir. 2015), the Seventh Circuit reversed a restriction on the defendant’s computer ownership and internet access in a bank larceny case, stating that the restriction was not reasonably related to his prior conviction for incest. In Brandon’s case, emailing, using social media, and using cloud storage has nothing to do with his offense.

Thus, while Dabney Friedrich ordered the Probation Office to conduct a review of what Straka has been up to while he has been engaging in deceitful performance art attacking the case, when she sentenced Straka, she specifically declined to include review of Straka’s social media. Straka has spent the last six months making a mockery of what he said to Friedrich back in January, most often on social media.

Mike Flynn, especially, has become a movement hero for tanking his own case to create havoc for any case against Trump. And Straka seems intent on pursuing just that kind of notoriety.

And it’s not clear what tools DOJ has retained to prevent that from happening.

I’ve written a fair amount about the way DOJ is using misdemeanor cooperation deals with the January 6 defendants. The vast majority of misdemeanor plea deals, most often for parading, require the defendant to share their social media and sit down for an interview with the FBI. To the extent such interviews get described in sentencing documents, some result in the defendant lying more (DOJ has yet to charge anyone for doing so), some seem to provide the FBI a deeper sense of the organizing networks that contributed to convincing people to travel to DC and participate in a riot, and some seem to provide insight about what transpired in offices or other locations that weren’t well-surveilled. Every defendant was also a firsthand witness, and so some of these interviews appear to have been really important for a larger understanding of the event.

There’s another kind of misdemeanor plea offered to key defendants who could be charged with a felony (usually obstruction or civil disorder), but who instead get charged with one of the misdemeanor charges, often after a long delay. The understanding is that such defendants offer some cooperation on the front end, effectively working their way into a misdemeanor plea. There are two people who we can say, with high confidence, have received one: Brandon Straka and Anthime “Baked Alaska” Gionet. Some Proud Boys appear to have either received one or be working on them, with Zach Rehl co-traveler Jeff Finley the most prominent. I’ve got suspicions that maybe ten other defendants got such pleas. But beyond that, it is virtually impossible to distinguish someone who benefitted from really good lawyering from someone who got such a plea.

I’m sure the government loves that part of such plea deals: it accords their investigation extra secrecy and may provide cooperation sooner rather than later.

However, particularly given that there are just a handful of people tracking the cases who have a sense of the relative importance of some of these defendants, such plea deals likely add to the distrust of DOJ’s investigation. To those who know about important movement operatives getting misdemeanors, it looks like conspirators in a larger plot aren’t getting charged; to those who have no clue that movement operatives were arrested for their role in the attack, it feeds the mistaken belief that DOJ isn’t investigating anyone but trespassers. Plus, it’s not entirely clear whether such pleas will backfire down the road, given that prosecutors have little ongoing means to ensure cooperation, as they would with felony cooperators hoping to benefit from 5K letters supporting leniency at sentencing.

That’s why I’m interested in what transpired with Brandon Straka’s cooperation in recent weeks.

Straka, as I’ve covered in the past, was a key player in the Stop the Steal movement, most famously in his role riling up the crowd outside the Wayne County vote count in Michigan. He was a speaker at one the January 5 events, got stripped of his January 6 speaking spot as Katrina Pierson tried to cut out the crazies, and then watched Trump’s speech from his VIP seat right next to Mike Flynn. Straka stopped off at the Willard Hotel on his way to what he claims to have believed was another speaking slot on the East side of the Capitol, where he joined in the mob. He was originally charged with civil disorder for his role in encouraging others to steal a shield. But by the time he was first formally charged in September, he was charged just with the less serious parading count. His plea agreement — the standard misdemeanor one — lacked the standard cooperation paragraph (which has at times reflected such an interview already took place), though that in no way confirmed that his was a cooperation misdemeanor. It wasn’t until December, with a joint motion to continue the sentencing citing new information provided by Straka, that it was clear something more was going on.

On December 8, 2021, the defendant provided counsel for the government with information that may impact the government’s sentencing recommendation. Additionally, the government is requesting additional time to investigate information provided in the Final PreSentence Report.

That was the first mistake; a recently unsealed filing revealed a belated request to put the filing under seal. After Judge Dabney Friedrich denied that request, the government tried again, citing contacts Straka had gotten in response to reports of his cooperation and concerns about his safety.

The government respectfully requests sealing because the motion to continue referenced the fact that the government was requesting a continuance of the sentence to evaluate newly discovered information provided by the defendant. Since the filing of the joint motion to continue, the defendant has been contacted by individuals who believe that he is cooperating with the government. Additionally, media outlets have also reported that the defendant is indeed cooperating with the government. The government has attached exhibits that have been provided to the government by defense counsel.

The United States respectfully submits that filing this pleading under seal is necessary because it references sensitive information related to sentencing. The request for sealing is based on the government’s desire to maintain the integrity of this investigation and protect the safety of the defendant.

The court filings associated with the delayed sentencing, in January, similarly requested sealing. The government’s public sentencing memo described three cooperative interviews — with the initial ones on February 17 and March 25, 2021 — and cited a sealed cooperation memo.

Straka was arrested on January 25, 2021. Straka voluntarily agreed to be interviewed by FBI. Straka’s initial interview occurred on February 17, 2021. Straka recounted what occurred on January 6. Straka denied seeing any police officers as he walked to the U.S. Capitol. He also denied seeing any barriers or signage indicating that the U.S. Capitol was closed. Straka denied removing the posts out of fear of getting arrested. Instead, he explained that he removed the videos because he felt “ashamed.” He denied knowing that people were “attacking, hurting, and killing people.”

Straka described seeing people “clustered” and “packed in” near the entrance to the U.S. Capitol. He admitted to video recording the event and later posting and removing the videos from Twitter. He also admitted knowing that the rioters were entering the U.S. Capitol without authorization and with the intent to interfere with Congress. Straka provided additional information to the FBI regarding the events leading up to and during January 6.

After this initial interview, the FBI met with Straka a second time on March 25, 2021 with follow-up questions. Straka was cooperative during the interviews.

On January 5, 2022, Straka met with prosecutors from the United States Attorney’s Office and the FBI a third time. The purpose of the interview was for the government to ask Straka folloup questions. Consistent with his previous interviews, Straka was cooperative. The interviews were conducted in anticipation of the plea agreement that defendant would later enter.7

7 The government will supplement this filing with a sealed addendum that will provide this Court with information related to Brandon Straka’s interviews.

At the time, it looked like a shitty deal by the government, and multiple researchers I know grumbled that the government simply didn’t know what a central role Straka had when they interviewed him just weeks after the riot.

On July 26, the press coalition that does these things moved to have Straka’s sentencing records unsealed. That day, Judge Friedrich issued an order to unseal the motions to seal, but (we subsequently learned) an error in the clerk’s office led Straka’s memo supporting substantial cooperation to be filed briefly in unsealed form.

At first, Judge Friedrich set a hearing to further unseal the docket, but what must be further sealed filings informed her the parties need to further delay any unsealing — the kind of thing that reflects ongoing cooperation or upcoming charges. At a hearing on Wednesday, Judge Friedrich (having already ceded to the request to delay further discussions of unsealing) worked out that the Straka filing had been released accidentally, then she basically blamed all parties — the government, Straka, herself, the clerks — for not taking better care of sensitive records describing cooperation.

She did, however, read Straka the riot act for comments he continues to make publicly that directly conflict with his comments to her at sentencing; she ordered semiannual reports from the Probation office on whether Straka continues to say things that might merit a False Statements charge.

In short, even a judge who presided over one of the most obvious of these pleas was pretty oblivious to the difference between the normal misdemeanor cooperation and this “substantial cooperation” one. And all the people complaining that DOJ wasn’t investigating organizers — they would know, the TV lawyers said — had absolutely no idea that FBI was getting information on key organizers with advance knowledge of Trump’s plans within weeks of the riot.

The one person who caught and wrote about the accidentally unsealed cooperation memo, Jordan Fischer, described what it said here (wayback version for those behind the GDPR wall).

In the memo, Dornan said Straka provided “significant information” to federal investigators over three interviews with the FBI following his arrest. In one interview on March 5, 2021, Straka, according to Dornan, provided information about “individuals who were inside of Nancy Pelosi’s office; individuals who were inciters at the Capitol; and organizers of the Stop the Steal movement.” He also listed the names of individuals Straka spoke to the FBI about. Those names include rally organizers Amy and Kylie Kremer, Cindy Chafian and Ali Alexander — who Dornan described as the “preeminent leader of the Stop the Steal movement.”

[snip]

Straka also gave contact information and other details about members of a “Stop the Steal” text thread that included, according to Dornan’s memo, Alexander and other right-wing personalities with large social media followings. As well, Dornan said, Straka provided unspecified information about Tea Party Patriots co-founder Jenny Beth Martin and anti-vax Dr. Simone Gold, who are both affiliated with America’s Frontline Doctors. Gold, like Straka, was charged in connection with the riot and pleaded guilty to a misdemeanor count of entering and remaining in a restricted building. She was sentenced in June to 60 days in jail and a $9,500 fine. Martin posted a picture of herself on social media in the audience of the “Save America March” on Jan. 6 and public video shows her using a megaphone on the west lawn of the Capitol later in the day urging protestors not to climb on scaffolding. She has not been charged in connection with the riot.

As Fischer noted, the Kremers, Alexander, and Chafian were the key organizers for the parts of the rally that fostered violence; the January 6 Committee has quoted especially the Kremers for their foreknowledge of Trump’s plans to march to the Capitol.

In short, Straka’s attorneys at least claimed that he offered details — in March 2021 — about precisely the Stop the Steal and rally organizers and other influencers whom virtually all TV commentators claim DOJ hadn’t been investigating.

While we know that Baked Alaska got one of these deals because he blathered his mouth, from the outside, these deals are presumably supposed to look like just another trespasser plea.

One more comment about this: Perhaps a quarter of the overt cooperating plea deals came with witness protection language. The concerns about Straka’s safety are not hypothetical. The riot was created by people who already had threatened violence, including the militias Roger Stone cooperated with and QAnoners like the Mike Flynn fan who threatened DC judges presiding over earlier Trump-related cases.

Consider, Randy Credico’s first contact with the FBI in 2018, before he was interviewed by agents, was a Duty to Warn contact because they had learned the militias associated with Roger Stone — the same ones that have both been charged with seditious conspiracy in relation to January 6 — were discussing action against him.

Here, someone closely networked into the same crowd like Straka threatened to expose the literal overlap between those militias and some of the most powerful people in the country.

I’m still not sure whether Straka is a liar who provided limited cooperation to avoid prison time or whether his information was as useful as the government claimed at sentencing.

What I am sure is that my assertions that such misdemeanor plea deals exist has been confirmed, even if the government has learned how costly sealing mistakes can be for the secrecy of such cooperation.

Update: As Sandwichman suggests, there are reports that Straka is doing a performance of being a Jan6er in jail. This feels a lot like Jerome Corsi’s apparently successful efforts during the Mueller investigation to make his testimony useless.

Yesterday, DOJ filed suit against Peter Navarro for violating the Presidential Records Act by failing to provide the National Archives with the contents of his personal ProtonMail account on which he did official business.

It’s a nifty lawsuit. After laying out that he’s a Covered Person under the Presidential Records Act for the entirety of the Trump Administration, then laying out the requirement that copies of any presidential business conducted on non-official accounts be shared with the Archives, it then describes how Navarro didn’t comply with the PRA specifically as regards (at least) a ProtonMail account he used.

6. While serving in the White House, Mr. Navarro used at least one non-official email account—an account hosted by the non-official service ProtonMail—to send and receive messages constituting Presidential records.

7. Mr. Navarro did not copy each email or message constituting Presidential records that was sent or received on his non-official account or accounts to his official government email account.

8. Following the end of the Trump Administration, the Archivist, through the General Counsel of the NARA, attempted to contact Mr. Navarro to secure the Presidential records that Mr. Navarro had not copied to his government email account. Mr. Navarro did not respond to NARA’s communications.

9. Prior to filing this suit, in an effort to avoid litigation, Department of Justice counsel contacted Mr. Navarro by email and United States mail to secure the Presidential records that Mr. Navarro had not copied to his government email account. Discussions with Mr. Navarro’s counsel to secure the return of Presidential records ultimately proved unsuccessful. Mr. Navarro has refused to return any Presidential records that he retained absent a grant of immunity for the act of returning such documents.

DOJ is very coy about the timing of all this. Possibly, when they asked Navarro to comply, they didn’t know about the ProtonMail account. But since then — and since the time Navarro very loudly lawyered up after being charged in contempt — DOJ asked Navarro for the material he hadn’t shared.

And Navarro, now represented by counsel, responded that he wouldn’t share the emails unless DOJ immunized him for any criming he did on ProtonMail. In response to which, DOJ very politely informed Navarro that by law, those ProtonMails, including any evidence of criming he did on them, are the property of the Federal Government.

The PRA is notoriously toothless for forcing your Navarro or Ivanka or Jared or Meadows types who refuse to use official accounts for Federal business. (Though Andrew McCabe made sure to apply some teeth to the PRA with Jared and Dan Scavino within days after the Biden inauguration; records were not archived properly for others, including Kellyanne Conway and Kayleigh McEnany.) It is toothless, that is, until such time as the affirmative refusal to comply with it could be deemed obstruction of a criminal investigation, the kind of criminal investigation that Navarro may have specifically in mind when he demanded immunity for giving what DOJ maintains is Federal property to the people who own it.

Maybe Navarro, now represented by counsel, thinks that whatever criming he did on his ProtonMail account carries a greater criminal penalty than obstruction would.

This lawsuit is similar to a lawsuit against Steve Wynn to get him to register under FARA, but one on which the legal issues are likely to be much clearer. If and when DOJ wins the lawsuit, they can then charge the person with violating the underlying law, which in the Wynn case might have real teeth.

But they may not have to wait that long with Navarro. They’ve laid a case that Navarro is withholding materials in an effort to withhold evidence of criming from NARA. Who knows? Perhaps his new lawyer will rethink the wisdom of demanding immunity.

As interesting as the fact that DOJ sued Navarro is, it is just as interesting that they have not, yet, sued Ivanka and Mark Meadows, both of whom had similarly failed to turn over the contents of their personal accounts to NARA by the time the January 6 Committee came looking for them. Unlike Navarro, though, both showed signs of trying to comply last year.

The fact that DOJ hasn’t sued Ivanka and Meadows may suggest that a great deal of incriminating data for DOJ’s investigation of January 6 has now been delivered to NARA, where DOJ can obtain it with covert warrants that shield its investigation.

Since April, the SDNY investigation into whether Rudy Giuliani worked as an unregistered foreign agent for Yuri Lutsenko has gone dark. I thought it possible that it had reached a dead end, but figured we’d learn if that were true when Rudy’s lawyer, Robert Costello, noisily announced that prosecutors told Rudy he was no longer a subject of the investigation.

Costello gave a version of that announcement yesterday to the NYT and at least one other outlet.

Only, he didn’t announce that prosecutors had told him Rudy was no longer a subject. On the contrary, Costello appears to confirm that Rudy remains a subject of investigation at SDNY. Costello used a different event — the return of Rudy’s seized devices — as his basis for saying he probably won’t be charged in the Lutsenko inquiry.

Because a broad swath of people routinely misrepresent what I have or am saying about Rudy, let me be very clear: I have no reason to doubt the NYT reporting or Costello’s claim that the investigation that Jeffrey Rosen intentionally circumscribed in 2020 into whether Rudy failed to register for his work for Ukrainian official Yuri Lutsenko will likely not result in charges.

But the specifics of what Costello said and did not say are of interest.

Before I look at what Costello said, a reminder that SDNY seized Rudy’s devices in April 2021. In September, they got Judge Paul Oetken to approve their preferred scope for a Special Master review of Rudy’s phones to include for review everything, regardless of subject, after January 1, 2018. In November and January, Special Master Barbara Jones turned over materials to the government. Half of the devices she reviewed covered just a focused period specific to the Ukraine investigation December 1, 2018 through May 31, 2019; the rest covered the entire period of review, January 1, 2018 through the April 2021 seizure. After Jones finished her privilege review, the material she turned over would be scoped (meaning, sorted for the material that matched the warrant(s) against Rudy) by the FBI. Jones’ last publicly posted report actually showed that the review of the single phone seized from Victoria Toensing’s phone was ongoing, with the involvement of Dmitry Firtash. Firtash had been represented by Toensing when the phone was seized but is now represented (again) by Lanny Davis. The last we heard from Jones in this case on January 21, she said, “I will confer with the Government and counsel for Mr. Giuliani and Ms. Toensing regarding additional review assignments.”

In March, in the related SDNY counts, Lev Parnas filed to change his plea on the remaining charge against him and pled guilty on March 29. At a sentencing hearing on June 29 where the government scoffed at Parnas’ claims of cooperation and associated media blitzes, Judge Oetken sentenced Rudy’s former associate to 20 months in prison. That’s relevant because one identifiable source for yesterday’s NYT story was Parnas, who in fact telegraphed something was coming the day before. Parnas, it seems, has reason to believe Rudy and he won’t be charged for his Lutsenko work (this work was actually included in Parnas’ original 2019 indictment, but was removed in 2020).

The day before Parnas telegraphed such a story was coming, DOJ asked to unseal a July 29, 2021 Oetken opinion finding that a communication describing efforts that Alexander Mikhalev was making to hide his role in influence-peddling relating to some cannabis businesses in the US was crime-fraud excepted.

I believe what’s left was for Igor and Lev to establish who is going to be shareholder(s) of the NewCo and could we all use LLC’s as our proxy’s in it. I am just trying to establish core structure and how transparent should Andrey be exposed for the benefits of NewCo Transparency, his Russian roots and current political paranoia about it.

My wildarse guess is DOJ wants this unsealed so a different Federal entity can use the email to sanction Mikhalev for foreign influence peddling, but that’s just a WAG. SDNY’s letter asking for the unsealing reflects having obtained permission from Parnas’ attorney before the unsealing, so even though SDNY believes Parnas unreliable for the way he blabs to the press, there was recent communication with him on this point.

Back to Rudy. When last we heard, in April, CNN reported that SDNY might soon reach a charging decision on Rudy’s case because he provided investigators some possible passwords for several (the numbers here are inconsistent with the Special Master’s numbers) of the phones FBI couldn’t unlock.

Federal prosecutors may soon reach a charging decision regarding Rudy Giuliani’s foreign lobbying efforts involving Ukraine, after he helped investigators unlock several electronic devices that were seized by the FBI, according to multiple sources familiar with the probe.

Giuliani has also offered to appear for a separate interview to prove he has nothing to hide, his lawyer told CNN, renewing a proposal that federal prosecutors have previously rebuffed.

That, CNN’s sources claimed three months ago, could lead to a quick decision.

In recent weeks, Giuliani met with prosecutors and during the meeting he assisted them in unlocking three devices that investigators had been unable to open, according to people familiar with the investigation. It is unclear if Giuliani also answered questions from investigators during this meeting.

Giuliani provided a list of possible passwords to two other locked devices, the people said. Is it unknown if those passwords successfully unlocked those devices and how much relevant material is on the recently unlocked devices.

Now that several more devices are unlocked, that could speed up the review and ultimately lead to a quick decision over whether the former mayor of New York will face criminal charges. Unless new information comes to light that leads to new routes for authorities to pursue, federal prosecutors at the US Attorney’s Office in the Southern District of New York — which Giuliani led in the 1980s — are likely to decide whether to bring charges soon after the review, people familiar with the matter told CNN.

Even then, the anonymous sources talking about Rudy’s case suggested he would only be charged if new information came to light.

That claim showed up in yesterday’s NYT story, as well: DOJ had enough to seize Rudy’s devices, but found no smoking gun. Yesterday’s piece even linked the CNN story from April, which had suggested Rudy had met with prosecutors “in recent weeks,” but this time dating the meeting to February, so months before CNN reported that a recent event meant a decision was imminent and at least five months ago from today, and clarifying that Rudy had answered prosecutors’ questions.

One key new piece of news, however, was that DOJ had recently returned Rudy’s devices.

While prosecutors had enough evidence last year to persuade a judge to order the seizure of Mr. Giuliani’s electronic devices, they did not uncover a smoking gun in the records, said the people, who spoke on the condition of anonymity to discuss a federal investigation.

The prosecutors have not closed the investigation, and if new evidence were to emerge, they could still pursue Mr. Giuliani. But in a telling sign that the inquiry is close to wrapping up without an indictment, investigators recently returned the electronic devices to Mr. Giuliani, the people said. Mr. Giuliani also met with prosecutors and agents in February and answered their questions, a signal that his lawyers were confident he would not be charged.

We can assume that detail — that DOJ returned Rudy’s devices — likely came from Robert Costello because (as happens increasingly these days), another outlet — Reuters — quoted Costello on the record saying what NYT had granted someone anonymity to share.

FBI agents recently returned the cell phones and other electronic devices they had seized from Donald Trump’s former attorney Rudy Giuliani, in a possible sign the investigation into whether he failed to register as a foreign agent of Ukraine could be winding down, his attorney said on Wednesday.

Robert Costello, Giuliani’s lawyer, told Reuters he has not been officially notified yet whether federal prosecutors in Manhattan are closing the investigation.

But he said the return of the devices is a positive sign for his client.

“I have not been officially told that its [sic] over,” Costello said. “It is possible they could make some startling new discovery…but we have always been confident that he didn’t do anything wrong.”

The primary other new piece of news in the NYT story describes documents and texts — the likes of which have recently been returned to Robert Costello — detailing a purported review of Rudy’s contacts with Dmitry Firtash that started in June 2019.

Mr. Giuliani began contacting Mr. Firtash’s lawyers in June 2019 seeking information about corruption in Ukraine, around the time Mr. Trump was pressing Ukraine’s president, Volodymyr Zelensky, to investigate the Bidens. Mr. Firtash’s lawyers told Mr. Giuliani they did not know of anything relevant.

There is no indication Mr. Firtash assisted Mr. Giuliani in his attacks on the Bidens, and Mr. Davis said the oligarch “categorically denies ever helping Giuliani or anyone else in any effort to dig up dirt.”

Even so, in the summer of 2019, an associate of Mr. Giuliani, Lev Parnas, met with the oligarch and recommended he add new lawyers to his team, the husband and wife, who were helping Mr. Giuliani dig into the Bidens. Mr. Parnas was paid to serve as their interpreter, and Mr. Firtash agreed to pay for some of Mr. Parnas’s travel expenses.

The offer seemed ideal. Around this time, Mr. Giuliani was preparing to go to London, and wanted to determine who would cover his travel. “Running into money difficulties on trip to London,” Mr. Giuliani wrote to Mr. Parnas in a text message.

During the trip in late June, Mr. Giuliani met in a hotel conference room with some Firtash associates, including a banker whose cousin was a Burisma executive.

Mr. Davis said the purpose of the meeting was to discuss Mr. Firtash’s contention that his extradition was politically motivated, and his associates did not talk about Burisma. The oligarch’s associates did not seek Mr. Giuliani’s help, Mr. Davis added.

That day, Mr. Giuliani upgraded hotels to the Ritz London. Mr. Firtash’s company, Group DF, later covered the roughly $8,000 stay, interviews and records show. The next month, the company paid $36,000 for a private flight Mr. Giuliani took from the Dominican Republic to Washington. And that August, Mr. Giuliani traveled with a friend and a bodyguard to Spain at a cost of more than $30,000, an expense that was listed on an invoice to a Group DF assistant and a longtime adviser to Mr. Firtash.

Mr. Costello said that Mr. Giuliani “doesn’t know how it came about.”

Note: Much if not all of this activity pertaining to Firtash post-dates the temporal scope, which ended on May 31, 2019, of Jones’ prioritized reviews. For eight of Rudy’s phones, the privilege review would not (based on public records, anyway) have been complete on materials after that period when Rudy met with prosecutors in February. The material would be in the temporal scope of the known warrants, which extend through December 2019, but not the Special Master review of eight devices.

Firtash’s name also didn’t appear in Parnas’ description of the scope of the inquiry that he released via redaction fail last year.

In a chart, the Government identified that it had sought and seized a variety of undisclosed materials from multiple individuals, including: the iCloud and e-mail accounts of Rudolph Giuliani (11/04/19); the iCloud account of Victoria Toensing (11/04/19); an email account believed to belong to former Prosecutor General of Ukraine, Yuriy Lutsenko (11/6/19); an e-mail account believed to belong to the former head of the Ukrainian Fiscal Service, Roman Nasirov (12/10/19); the e-mail account of Victoria Toensing (12/13/19); the iPhone and iPad of pro-Trump Ukrainian businessman Alexander Levin (02/28/2020 and 3/02/2020); an iCloud account believed to belong to Roman Nasirov (03/03/2020); historical and prospective cell site information related to Rudolph Giuliani and Victoria Toensing (04/13/2021); electronic devices of Rudolph Giuliani and Giuliani Partners LLC (04/21/2021); and the iPhone of Victoria Toensing.

If there were any SDNY investigation into Firtash, you would expect to see warrants targeting his cloud content as well. It wasn’t in the warrants that Parnas had seen at the time of seizure.

So one thing this story (which also relies on Firtash lawyer Lanny Davis as a source) does is compare notes between suspects about the scope of SDNY’s interest in Rudy’s contact with Firtash. As NYT notes, it actually reveals that the investigation into Rudy was  broader than previously known, and broader than the scope of the known warrants as described by Parnas.

In any case, what Costello told Reuters and presumably told NYT is that 1) he recently got these phones (content from which likely contributed to this story) back and 2) SDNY has not told him that Rudy is no longer a subject.

Generally, if DOJ seizes items as part of a grand jury investigation, they can keep them:

• So long as the grand jury investigation in which the property was seized is ongoing
• Until such time as FBI fully exploits the devices (that is, until they crack passwords and identify deleted content)
• During the pendency of a Special Master review
• For use in a charged prosecution if the validity of an extraction might otherwise be challenged

This response to Project Veritas’ efforts to get their phones back in a different SDNY investigation lays out the precedents in the District.  If the grand jury investigation is closed, the subject of the investigation gets their property back, and Rudy has gotten his property back. So Costello fairly concludes that the known grand jury investigation into Rudy has been closed.

The thing is, if those materials are used for any other investigation — particularly now that they’ve been reviewed for privilege with kind of involvement from Costello that would amount to stipulation about the accuracy of the exploitation — would not be shared around DOJ as actual devices, some imaginary bag of Rudy Giuliani’s many phones passed from FBI agent to FBI agent. They’d be shared, via separate warrant from separate grand jury investigations, on hard drives of the post-privilege review content.

Costello can say with some confidence the grand jury investigation opened in 2019 won’t result in charges. But he doesn’t have a good explanation for why even SDNY has not told him Rudy is no longer a subject.

A more interesting part of the timing, to me, is that before Rudy got his devices back, a different part of DOJ obtained two rounds of subpoena returns from at least a dozen people asking (among other things) for all their post-October 1, 2020 communications to, from, or involving Rudy Giuliani or Victoria Toensing. Some of the people receiving those subpoenas would be hostile witnesses, themselves possible suspects of a crime. DOJ started, though, with people who had refused to take part of the fake elector scheme, who presumably could be expected to fully comply with the subpoena, including providing any Signal, WhatsApp, ProtonMail, or Telegram communications that might otherwise be unavailable.

The FBI likely has enough sets of subpoena returns including Rudy’s comms to know what content should be on his phones from when he was helping to plot a coup.

That’s the kind of thing FBI might have wanted to check before they released Rudy’s phones, to know how aggressively they had to look for potentially deleted content on the devices.

It was a remarkable day in the Alex Jones trial.

After getting Jones to repeat claims he made under oath about not using email and never texting about Sandy Hook, Plaintiff’s lawyer Mark Bankston told Jones he knew he wasn’t telling the truth.

Do you know where I got this. Mr. Jones, did you know 12 days ago your attorneys messed up and sent me an entire digital copy of your entire cell phone, with every text message you’ve sent for the past two years? And when informed, did not take any steps to identify it as privileged, or protected in any way? And as of two days ago, it fell free and clear into my possession. And that is how I know you lied to me when you said you didn’t have text messages about Sandy Hook. Did you know that?

Jones bullshitted for a while. Bankston got Jones to agree he knew what perjury was. Judge Maya Guerra Gamble clarified that these materials had not been shared in discovery (Bankston made sure to get Jones to agree the emails he was asking about had no Bates stamp).

Effectively, Jones not only got exposed in the Sandy Hook lawsuit as lying.

But at a break, one of the plaintiff’s lawyers suggested they were going to share the phone with prosecutors.

You know what nobody’s thought about yet? What happens when that phone goes to law enforcement.

Obviously, given the timing, Jones’ exposure for January 6 would be the most obvious interest (DOJ already has Owen Shroyer’s phone, but Jones would have direct contacts that Shroyer would not).

But during discovery in this case, Jones sent child porn to lawyers for Sandy Hook.

Update: According to Dan Solomon, a journalist covering the trial live, the phone got put into a Dropbox folder both sides were using to share files.

Also here is what happened with Alex Jones’s cell phone, according to Mark Bankston: the phone’s contents were put in a Dropbox folder the two parties had been to using to exchange materials roughly ten days ago.

ABC got the scoop yesterday that Pat Cipollone has been subpoenaed in the January 6 investigation. Remember: under grand jury secrecy rules, only the recipient can share details of a subpoena (or, if the FBI delivers it, their neighbors).

Which is why I’m interested that the ABC story makes it clear that Cipollone’s lawyers “are expected to engage in negotiations around any appearance.”

A federal grand jury has subpoenaed former Trump White House counsel Pat Cipollone in its investigation into the Jan. 6 assault on the U.S. Capitol and efforts to overturn the 2020 election, sources with direct knowledge of the matter told ABC News.

The sources told ABC News that attorneys for Cipollone — like they did with the House select committee investigating the Jan. 6 attack on the Capitol — are expected to engage in negotiations around any appearance, while weighing concerns regarding potential claims of executive privilege.

This confirms a point I made yesterday: Cipollone is no more a reliable witness than nutjob Sidney Powell or nutjob Rudy Giuliani.

That’s because he is using frivolous Executive Privilege claims — made even after the Supreme Court ruled that Trump doesn’t have privilege here, and made by the White House Counsel, not the President’s own lawyer — to avoid disclosing the content of things he said directly to the President.

And there’s no reason for a buttoned down lawyer like Cipollone to reveal his grand jury testimony, along with claims he’s going to sustain his frivolous privilege claims, unless he wants to reassure Trump.

I keep suggesting that Cipollone may know he has his own exposure. He would have been involved in all the pardons Trump gave save, perhaps, Steve Bannon’s last minute one. And there’s good reason to believe those pardons included quid pro quos that bought cooperation in the insurrection.