May 20, 2024 / by 

 

Exp[o]rt Reports: When David Weiss Claimed Keith Ablow’s Sawdust Was Hunter Biden’s Cocaine

As Garrett Ziegler was confessing, again, to have accessed a password-protected phone backup (for which Hunter Biden is suing him), he described that this is a photo of a photo in the office of then-still licensed psychiatrist Keith Ablow, which Ablow sent Hunter Biden, explaining that the photo came from an expert carpenter who was trying to kick a coke habit.

Ziegler was even kind enough to include the June 2, 2022 extract date of the iPhone XS iTunes backup where he found the picture, even while bitching of the dishonor and incompetence of David Weiss and his team.

David Weiss says the picture isn’t one of sawdust passed on by Keith Ablow. He says it’s a picture that Hunter Biden took himself of “apparent cocaine” sometime in late 2018.

During November and December 2018, the defendant took multiple photographs of videos apparent cocaine, crack cocaine, and drug paraphernalia.

Weiss doesn’t provide a date for the photo. But he says it came from an iPhone 11 backup stored to iTunes, though he’s not telling whether he found it in an iTunes backup in Hunter’s iCloud account obtained in September 2019, or an iTunes backup found on a laptop attributed to Hunter Biden obtained in December 2019.

iTunes Backup (iPhone 11) – Production 1

Now, perhaps it’s a good thing that David Weiss didn’t know he was (at least per Ziegler, who — bizarrely — has more credibility than the people who have a stack of warrants and lots more metadata) falsely claiming that this picture depicted cocaine. Perhaps that means he didn’t breach Hunter’s privileged communications with Ablow and read what the then still-licensed psychiatrist had to say to his client.

But he has just made the competence of his team’s forensic analysis an issue, and done so in a filing in which Derek Hines appears to be claiming they don’t need any expert forensic reports.

In the motion to compel to which Hines was responding, Abbe Lowell had claimed that Weiss had not turned over any expert reports.

Mr. Biden requested the ongoing production of all materials subject to disclosure under FRCP 16(a)(1)(A), (B), and (D). (See DE 65.) Mr. Biden notes that his October 2023 Rule 16 requests also cover any expert reports that the prosecution intends to rely upon at trial; to date, however, no expert reports or materials have been identified or produced to defense counsel.

The prosecution produced a Delaware state police case file, which includes a summary of an interview Mr. Biden gave police in October 2018 and other information about the purchase, discard, and recovery of the firearm, as well as evidence photos from its case file. The prosecution also produced an ATF case file that has additional information about the firearm and statements about its purchase. Mr. Biden asks the Court to order the prosecution to either (1) confirm no further responsive documents or communications exists in its possession (which includes material in the possession of all relevant government agencies and officials), or (2) produce the requested documents (including any expert reports) and, if the prosecution believes any responsive documents are protected from disclosure, identify those documents and the reasons why the prosecution believes they need not be disclosed.

Not true!, responded Hines in the filing where he appears to have claimed a photo of sawdust taken by a Keith Ablow client was instead a photo of cocaine taken by Hunter Biden.

Hines described that the prosecution has provided two expert reports: that of the FBI chemist who — five years after the gun was seized — found cocaine residue in the pouch in which the gun was found, but didn’t look for fingerprints or try to date the cocaine.

The defendant does not allege any Rule 16 materials are missing from the productions other than one assertion that, “to date, however, no expert reports or materials have been identified or produced to defense counsel.” ECF 83 at p 6. He is incorrect. On November 7, 2023, the government produced to the defendant an expert report prepared by an FBI chemist who analyzed the cocaine discovered on the defendant’s brown leather pouch that had contained his gun.1 In this same production, the government also produced an expert report prepared by an agent related to the interstate nexus of the gun charged in the indictment.2 In addition to these reports, the government produced other materials for these two experts, including CVs, as well as a CV for an additional expert.3 By contrast, the defendant has failed to provide any discovery, including any expert discovery.

In addition, prosecutors provided the CV for the witness who’ll attest the gun had a nexus to interstate commerce and the CV for … Hines isn’t describing what kind of witness that is.

But there are at least four reports I expected to see that are missing:

  • The FBI agent John Paul Mac Isaac calls “Matt” who (at least per JPMI, who like Ziegler might be as reliable as Weiss at this point) described trying to boot up the laptop on December 9, 2019, four days before the known warrant to access the laptop
  • The FBI Computer Analysis and Response Team analyst named Mike Waski, from whom Josh Wilson claims to have obtained the laptop after he had already obtained the laptop four days earlier from JPMI
  • The FBI CART analyst, Eric Overly, who actually imaged the hard drive, which Gary Shapley notes happened after December 13; there may be a different CART analyst who imaged the laptop itself who would be on the hook for another expert report
  • A March 31, 2020 email about the completeness of the disk image that JPMI had done, which prosecutors were withholding from any agents who might testify at trial but which Shapley has kindly informed us exists
  • Any analysis “computer guy” did after October 22, 2020, which is when the FBI realized they had never bothered to check when files had been added to the laptop they had been using for ten months

Those kinds of expert reports are precisely what might have spared poor Senior Assistant Special Counsel Derek Hines from apparently claiming that a photo of a photo of sawdust taken by Keith Ablow is instead a photo of cocaine taken by Hunter Biden.

For example, here’s how Gus Dimitrelos used EXIF data — EXIF data he says he found on most or all of the photos Hunter took — to validate photos to Hunter on the laptop attributed to him.

In this case, Dimitrelos matched the photo to a known iPhone Hunter used and a known location he was at on a particular date and time.

To use photographs to attribute to Hunter Biden cocaine use, those photos are not only going to need to depict cocaine rather than sawdust, but they’re going to need to be accompanied by the kind of forensic data that could prove that a particular phone taking a picture was in Hunter’s hand at the time a picture was taken.

That’s particularly true in this case. Ziegler shows that Ablow texted this photo to Hunter on November 20, 2018.

That happens to be the day when someone first accessed Hunter’s droidhunter account — the one via which his digital life would be packaged up two months later — from a Mac device for the first time after the laptop ultimately shared with the FBI was first logged into Hunter Biden’s iCloud account.

But based on what is available on the public emails, after someone logged into Hunter’s iCloud account with a new laptop on October 21, 2018, it was weeks before a new Mac device logged into his Gmail accounts, starting with a November 16 attempt to log into Rosemont Seneca that was rejected by Google, followed by a reset of the droidhunter account and a login into that on November 20, followed by a login into Rosemont Seneca on November 24. Not only did those attempts come in the midst of a bunch of attempts to get into Hunter Biden’s Twitter account from a Mac. But on November 27, someone appears to have gotten into his iCloud account from Troutdale, OR.

That is, because this text was sent during a period when some crucially important anomalies were happening on Hunter Biden’s digital accounts, you’d need to ensure that whatever device with which Hunter seemingly engaged in this exchange with Ablow was actually in his hand in Newburyport, MA, and not in someone else’s hand in Troutdale, OR. That’s especially important with any conversation with Ablow, because in at least two known conversations — one in which he created the illusion for Hunter that he was speaking to some orthopedic surgeons, and another in which he entirely rewrote a Hunter comment subsequently published in Vanity FairAblow presented as Hunter.

And by claiming a photo of sawdust taken by an Ablow client is instead a photo of cocaine taken by Hunter Biden, Derek Hines may have spoiled his effort to sand-bag Abbe Lowell and avoid a suppression challenge to all this digital evidence. Sure, Hines is claiming that Lowell missed his window to file a motion to suppress by December 11, 2023. But he apparently just claimed that he hasn’t validated the data he’s submitting, as an officer of the court, in filings before Judge Maryellen Noreika. And with this apparent flub, Hines has definitely made the importance of expert forensic reports an issue.

It appears increasingly likely that before Jim Jordan demanded a prosecution of Hunter Biden and before David Weiss started to worry about threats to his family, Weiss or someone who knew better realized that any prosecution that would rely on this digital evidence would be rife with these kinds of embarrassments. But then Weiss decided he’d go forward anyway, he’d bring in experts in prosecutorial dickishness to try to sandbag their way through the difficulties posed by the laptop.

Don’t get me wrong: Hines and Leo Wise have well earned their reputation for prosecutorial dickishness. This effort to avoid any suppression challenge relating to the laptop might yet succeed!

But without the least little understanding of digital forensics, that may not be enough to sustain this case.

Update: According to someone familiar with Ablow’s office in this period, the photo does appear to match one that was in the office. That’s important because the FBI and DEA would have photos of Ablow’s office from the 2020 raid.

Update: We’ve literally come full circle. Fox News is in a tizzy because of these photos, though they appear more careful than DOJ to claim the sawdust is Hunter’s.

 


David Weiss Claims to Have Plain Viewed Hunter Biden’s Dick Pics for Years

In response to Hunter Biden’s notice of the schedule in California submitted in his Delaware case, Judge Maryellen Noreika asked what was up with Biden’s motion to compel submitted more recently.

ORAL ORDER re 84 Status Report – Having reviewed Defendant’s status report, which states that his motions to dismiss are fully briefed but is silent as to his most recently filed motion to compel discovery (D.I. 83), IT IS HEREBY ORDERED that, on or before February 14, 2024, the parties shall notify the Court whether the parties have reached an agreed-upon briefing schedule for the recent motion to compel or whether briefing will proceed pursuant to the Court’s Standing Order Regarding Responses to Defense Motions in Criminal Cases. ORDERED by Judge Maryellen Noreika on 2/13/2024.

David Weiss responded by explaining his legal basis for accessing Hunter Biden’s dick pics and claiming that Abbe Lowell has forfeited any ability to challenge evidence thus seized. It reveals how Weiss plans to introduce evidence from stolen data that was originally accessed without a warrant in a case against the son of the President of the United States.

It is breathtaking in sheer ethical shoddiness.

And, it may work.

Derek Hines describes that he provided Abbe Lowell the tax warrants to access the iCloud, the laptop, and backups in October, and that because those warrants permitted the search for the what the warrant claims was the email account owner’s state of mind, then searching for evidence of addiction was fair game.

Relevant to this case, investigators were authorized by these warrants to seize “evidence indicating the email account owner’s state of mind as it relates to the crimes under investigation.” Evidence that showed the defendant’s addiction to and use of narcotics indicates “the email account owner’s state of mind as it relates” to the tax crimes enumerated in the warrant. In addition, investigators were also permitted to seize evidence relevant to this case under the plain view doctrine, which they did. This evidence, from the defendant’s backups of his devices to his iCloud account, was produced with the warrants in Production 1 in an easily searchable format. The primary source of electronic evidence in this case is from the defendant’s iCloud account, which investigators were authorized to seize because it showed “the email account owner’s state of mind as it relates to the crimes under investigation” as well as under the plain view doctrine.

Production 1 also included the contract the defendant signed when he dropped off his laptop and hard drive at the computer repair store in which he agreed that, “[e]quipment left with the Mac Shop after 90 days of notification of completed service will be treated as abandoned.” Investigators also obtained a search warrant authorizing them to search the laptop and hard drive that was obtained from the computer repair store. See District of Delaware Case No. 19-309M, issued on December 13, 2019. The warrant authorized investigators to search for the same violations referenced in the previous paragraph, that is, violations of 26 U.S.C. § 7201, Tax Evasion, 26 U.S.C. § 7203, Willful Failure to File Tax Returns or Pay Taxes, and 26 U.S.C. § 7206(1), False Tax Returns. Relevant to this case, this warrant also authorized investigators to seize “evidence indicating the state of mind of the owner and user of the TARGET MACBOOKPRO and TARGET EXTERNAL HARD DRIVE as it relates to the crimes under investigation.” Again, evidence that showed the defendant’s addiction to controlled substances indicates “the state of mind of the owner and user of the TARGET MACBOOK PRO and TARGET EXTERNAL HARD DRIVE as it relates” to the to the tax crimes enumerated in the warrant. In addition, investigators were also permitted to seize evidence relevant to this case under the plain view doctrine. Evidence seized pursuant to this warrant was produced to the defendant in the specific format that he requested. Many of the same messages, photographs, and information that were obtained from the iCloud warrants were also located on the defendant’s laptop. [my emphasis]

In other words, for months, they were claiming that they had found evidence of addiction in the name of searching for tax crimes and if not that, then plain view and that’s all they were relying on while searching Hunter Biden’s dick pics for five years.

Plain view is the concept that if you see evidence of a crime while looking for other crimes, you can use that evidence at trial (usually, after getting another warrant).

Derek Hines described (there are ways to prove this is false, if Lowell gets his shot to do that, but Hines claims he has forfeited that chance) sniffing Hunter Biden’d dick pics for years, all in the name of tax crimes.

Then, Hines described, he got the December 4 warrant for the very same information, and Abbe Lowell acknowledged seeing it on December 5, which gave them another legal authority to sniff Hunter Biden’s dick pics.

On December 4, 2023, investigators obtained an additional search warrant for the defendant’s iCloud account, the backup data associated with his iCloud account, his MacBook Pro laptop, and the hard drive. See District of Delaware Case No. 23-507M, issued on December 4, 2023. This warrant authorized investigators to search for violations of 18 U.S.C. § 924(a)(6) and 924(a)(2) related to making a false statement during a background check to deceive a firearms dealer, violations of 18 U.S.C. § 924(a)(1)(A) related to making a false statement during a background check on records that the firearms dealer was required to maintain, and violations of 18 U.S.C. 922(g)(3). Among other items, the warrant authorized investigators to seize “all evidence relating to addiction, substance use, and controlled substances, to include conversations, message communications, photographs, documents, and videos.” The December 4, 2023, warrant provided yet another legal basis for investigators to seize information relevant to this case from the defendant’s iCloud account, his iCloud backup files, his laptop, and his external hard drive. The warrant was produced to the defendant that same day, December 4, 2023. The following day, December 5, 2023, defense counsel sent the government a letter that acknowledged it had reviewed this search warrant. Because the actual evidence relevant to this case that was previously seized from the laptop, hard drive, and iCloud backup files had already been produced to the defendant on October 12, 2023, there was no additional evidence produced in response to this warrant.

Effectively, Weiss is saying that because Lowell did not immediately move to suppress the laptop and its progeny with just six day’s notice, that claim has been mooted.

The defendant’s pretrial motions were due on December 11, 2023. ECF 57. The defendant did not file any motions seeking to suppress evidence related to the search warrants and evidence produced to him on October 12, 2023, in Production 1. The December 4, 2023, warrant does not entitle him to file any now. In fact, the December 4, 2023 warrant moots any issues that could have been raised by the defendant had he filed a motion to suppress those warrants, and, in any event, he did not elect to file motions to suppress the evidence from the August 29, 2019, December 13, 2019, or July 10, 2020 warrants that were produced to him on October 12, 2023.

As I will show, the places where they obtained communications are themselves problematic, but if this claim that the December 4 warrant moots any suppression claim works, then Lowell will have no opportunity to challenge the fact that David Weiss wants to use stolen data to prosecute the son of the President except by challenging individual communications at trial.

I’ve literally never seen something this ethically brazen. Ever. (Though admittedly, I only cover federal trials; this kind of stuff goes on in state cases all the time.)

And they’re doing it to get away with investigating Joe Biden’s son for years using stolen data.


How Robert Hur Ghosted Joe Biden’s Ghost Writer

As I’ve shown, Robert Hur only seriously considered charging two sets of documents with classified information found at Joe Biden’s home.

First, classified entries in “diaries” that Hur persistently called “notebooks” to obscure the fact that the Presidential Records Act affirmatively excludes diaries from the statute and, presumably, to provide himself license to read through them all.

(3) The term “personal records” means all documentary materials, or any reasonably segregable portion thereof, of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term includes–

(A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business;

Hur couldn’t charge those documents because DOJ didn’t charge Ronald Reagan for the classified entries in his diaries, which Hur always called diaries.

Then, two folders of documents pertaining to Afghanistan found in a ratty box in Biden’s garage. There was no direct evidence that Biden wilfully retained these documents, only to store them in a mostly-destroyed box collecting dust. Hur’s imagined motive for why Biden would — vindication that he was right about Afghanistan — is nonsensical, given that Biden had better vindication inside a desk drawer in his house, the 40-page memo Biden sent President Obama warning him it’d be a mistake to surge troops in Afghanistan.

To make the claim Biden did willfully retain them, Hur isolated a 66-word exchange Biden had with his ghostwriter in early 2017, Dan Zwonitzer, in which Biden mentioned “classified stuff.”

So this was – I, early on, in ’09-I just found all the classified stuff downstairs-I wrote the President a handwritten 40-page memorandum arguing against deploying additional troops to Iraq-I mean, to Afghanistan-on the grounds that it wouldn’t matter, that the day we left would be like the day before we arrived. And I made the same argument … I wrote that piece 11 or 12 years ago. [my emphasis]

Then he (by his own confession) read into eight words stripped from the context of the explicit reference to that 40-page memorandum that better vindicated Biden’s judgement, repeating that “8-word utterance” over and over and over. Hur even invented an attorney-client privileged conversation that Biden’s attorneys insist didn’t happen to imagine that Biden knew the box was there.

But to even get to the place where Hur was reading into eight words of a 66-word utterance, he first had to get to Biden’s ghost writer, Zwonitzer.

Nowhere in his 388-page report does Hur describe how — or just as importantly, when — that happened. Zwonitzer is not mentioned in the section that purports to provide an overview of the investigation. With the exception of a description of the five month search (though June 2023) of Biden’s Speech and Debate protected records at University of Delaware, the last date included in that overview is January 20, 2023, eight days after Merrick Garland appointed Hur. Aside from the search of those Senate documents, that section provides few details of how Hur spent over $3 million in investigative expenses or what he did during the 384 days between January 20, 2023 and when he released the report: just the numbers of interviews he did and documents he obtained, not when those things happened. Worse still, Hur deviated from the practice set by Robert Mueller and John Durham by only providing dates for witness interviews if a given witness sat for more than one interview, which obscures his investigation still further.

Hur doesn’t provide an overview of the investigation, he provides an overview of the discovery of classified documents, followed by a description of the classification review of them.

And in spite of the fact that Hur engaged in an 11-page declination discussion regarding Zwonitzer’s attempted deletion of the audio recordings of his interviews with Joe Biden (which he did in part because he was afraid of being hacked), Hur didn’t provide any dates there, except in footnotes.

FBI agents contacted Zwonitzer to request an interview and to seek records related to his work ghostwriting two of Mr. Biden’s memoirs, Promise Me, Dad and Promises to Keep. Zwonitzer provided investigators records that included near-verbatim transcripts and some audio recordings. When reviewing these materials, investigators noticed that there were some transcripts for which there was no corresponding audio recording. They then learned from Zwonitzer’s attorneys that, before the FBI contacted Zwonitzer, he deleted the recordings of his conversations with Mr. Biden. Zwonitzer then provided all electronic devices that contained or were used to create the recordings and transcripts related to Promise Me, Dad.

[snip]

Zwonitzer gave two consensual interviews during which he provided relevant information without seeking immunity or any protections or assurances (such as a proffer agreement). Zwonitzer was forthright that he had deleted recordings. 1353 In his words, “I simply took the audio files subfolder from both the G drive and my laptop and slid them into the trash. I saved all the transcripts …”1354 Zwonitzer believed he did this at some point during the period between the end of January 2023 and the end of February 2023. 1355 He took this action before the FBI contacted him about the investigation and requested that he produce evidence. 1356 Zwonitzer explained that at the time he did so, he was “aware” of the Department of ,Justice investigation of Mr. Biden’s potential mishandling of classified materials. 1357

Hur describes that Zwonitzer didn’t expect he’d get sucked into the investigation and when the FBI contacted him, they had no idea he had had recordings.

Zwonitzer also explained that at the time he deleted the recordings, he did not expect the investigation to involve him.1369 and he did not think the audio recordings contained information relevant to classified information.1370

[snip]

[W]hen FBI agents contacted Zwonitzer, they were unaware that audio recordings existed or where Zwonitzer’s electronic devices were located.

The date Hur reached out to Zwonitzer is important. Hur had no basis to even consider that Biden willfully retained those Afghanistan documents until he read through Zwonitzer’s transcripts. He describes that Zwonitzer’s “cooperation was uniquely valuable as the evidence that he provided was highly probative and not otherwise obtainable.” But he doesn’t explicitly describe when or why that happened.

Hur interviewed Zwonitzer on July 31, 2023 and again on January 4, 2024.

The biggest hint of when he decided to call up Joe Biden’s ghost writer comes in the appendix, where he reveals that he first obtained Zwonitzer’s laptop and hard drive on June 29, 2023.

The evidence Hur obtained from Zwonitzer was the last but one piece of evidence Hur describes collecting. The last? The ratty box, which by description sat in the President’s house for a year because it wasn’t deemed all that important until Hur decided to do some unconvincing photo analysis to claim the box was moved to Biden’s office from the house in Virginia in 2019.

There’s no evidence that Robert Hur reached out to Zwonitzer (who by that point couldn’t remember whether he attempted to delete the recordings in January or February) until after Jack Smith had already charged Trump for stolen documents on June 8, 2023, an indictment Hur cites repeatedly (and inaccurately) in his own report.

Perhaps just as telling, Robert Hur didn’t interview Zwonitzer until after CNN first reported about the role of Mark Meadows’ ghost writer in that investigation on May 31, 2023.

To be clear, Hur might have decided to find Zwonitzer independently. There’s a folder with materials relating to the ghost writer in that tatty box, that may explain that investigative decision. There are Vice Presidential records that mention him and even consider making him an official historian. Hur chased a theory that he could match the marked classified records found in Biden’s home with passages in Biden’s two books, a theory that totally failed with regards to the book Zwonitzer and Biden worked on in 2017.

But on the record Hur chooses to provide in his 388-page report, it’s not clear whether he reached out to Biden’s ghost writer because obvious investigative leads led there or because Jack Smith indicted Donald Trump so Hur decided to redouble his efforts to try to find a similar crime he could pin on Biden.


Rod Rosenstein’s Baltimore Club of Men Gunning for the Bidens

In an interview yesterday with Jake Tapper (transcript), Rod Rosenstein exhibited more familiarity with the Robert Hur report, which had been public for just three days, than he was about the Mueller investigation that he oversaw for two years, during ten months of which, Hur played a key role.

Tapper: He was your deputy at the Justice Department. Do you agree with his decision that Biden should not be charged, it was not a prosecutable case?

Rosenstein: Yes, Jake.

And it’s — most people haven’t read the entire report. And I don’t blame them. It’s 345 pages, about 1,400 footnotes. It’s very dense and well-reasoned. And I think, if you read the whole report, you will conclude that Rob reached a reasonable decision that, given all the circumstances, that prosecution is not warranted.

After all, Rod Rosenstein was personally involved in drafting (though did not sign) the Barr Memo making a prosecution declination for Trump for his obstruction-related actions. Yet not even Rosenstein, who had been involved in the investigation from the start, thought to address the pardon dangles — a key focus of Volume II of the Mueller Report — that continued to undermine ongoing investigations.

Then, over a year later and under pressure from Lindsey Graham for having signed the worst of the Carter Page FISA applications, Rosenstein agreed with Graham’s false portrayal of the investigation as it existed on August 1, 2017, when Rosenstein expanded the scope of the investigation.

Lindsey Graham: (35:02) I am saying in January the 4th, 2017, the FBI had discounted Flynn, there was no evidence that Carter Page worked with the Russians, the dossier was a bunch of garbage and Papadopoulos is all over the place, not knowing he’s being recorded, denying working with the Russians, nobody’s ever been prosecuted for working with the Russians. The point is the whole concept that the campaign was colluding with the Russians, there was no there there in August, 2017. Do you agree with that general statement or not?

Rod Rosenstein: (35:39) I agree with that general statement.

Rosenstein’s endorsement of Lindsey’s statement about the evidence as it existed in August 2017 was egregiously wrong. Mueller had just acquired a great deal of evidence of conspiracy, including several details implicating Roger Stone and Paul Manafort that were never conclusively resolved. Crazier still, George Papadopoulos had just been arrested for lying to cover up when he learned that Russia planned to help Trump, an arrest of which Rosenstein would have personally had advance notice.

By comparison, days after its release, Rosenstein exhibited great confidence in his knowledge of the 1,400 footnotes his former deputy included in the report.

To be sure, Rosenstein’s defense of Hur did not honestly present the content of the Report. For example, the only other reason  he provides for why Hur didn’t charge Biden, besides Hur’s opinion that Biden is a forgetful old geezer, involved the tradition of Presidents taking things home.

ROSENSTEIN: I think so, Jake.

And you identified the controversial elements of the special counsel’s report. It’s a very long report, 345 pages, and has a lot of information in there, other reasons why prosecution would not be warranted. And one of them is the history and experience of prior presidents and potentially vice presidents as well taking home classified documents.

This is simply a misrepresentation of the evidence.

Even if you ignore Hur’s misstatement of DOJ’s application of 18 USC 793(e) in cases where there is no other exposure (in something like a leak) or the challenges in applying it to someone who, like both Biden and Trump, didn’t hold clearance, for the primary set of documents he examined — the two folders of Afghanistan documents found in Biden’s garage — Hur admitted he couldn’t prove his already inventive theory of the case. He couldn’t even prove that the documents in question had been in Biden’s Virginia home when Biden made a comment about something classified in his home.

Rosenstein is, as Hur already did, emphasizing the most unflattering part of the declination decision, not the fact that after blowing  over $3M and reading through Joe Biden’s most personal thoughts, Hur simply didn’t find evidence to support a charge.

Twice, Rosenstein disputed that Hur’s focus on Biden’s age was the kind of gratuitous attack for which he had made the case for firing Jim Comey, the second time in direct response to a question about the memo he wrote.

Tapper: I want to read from a memo you wrote in 2017 in which you criticized James Comey’s infamous press conference in which he criticized Hillary Clinton’s handling of classified e-mails, even as he declined to prosecute her, a similar circumstance, although he wasn’t a special counsel — quote — “Derogatory information” — this is you writing — “Derogatory information sometimes is disclosed in the course of criminal investigations and prosecutions, but we never release it gratuitously.

“The FBI director laid out his version of the facts for the news media as if it were a closing argument, but without a trial, it is a textbook example of what federal prosecutors and agents are taught not to do” — unquote. By going to the lengths he did to critique Biden’s age and memory, even as he was clearing him of a crime, how do you differentiate between what Robert Hur did that you say is OK from what James Comey did that you say is not?

ROSENSTEIN: Jake, there are several significant differences between those two examples.

One is, most fundamentally, that Jim Comey wasn’t the prosecutor. He was the head of the FBI. His job was to ensure the police collected the proper evidence, submitted it to the prosecutors. And, ultimately, it’s up to the prosecutors in the Justice Department and the attorney general to make a decision about what information is released.

Rob Hur was the prosecutor. It was his job to make that decision, to make that recommendation to the attorney general, who, as you acknowledged, has previously committed to make this report public. That’s one difference.

The second difference is the special counsel regulation. In the ordinary case, Hillary Clinton was not investigated by a special counsel. There was no procedure to make those reasons public. Here, it’s baked into this regulation.

Now we sit, Jake, 25 years down the road. That regulation was passed by Attorney General Reno in 1999. Now we have 25 years of experience. I think it’s worthwhile to sit back and ask whether or not this is the right procedure. Do we really think that we ought to have prosecutors writing reports for public release of everything they discover and all the reasons for not prosecuting?

Or is there a better way to do that without having all the embarrassing information come to public light?

The big tell in Rosenstein’s defense of his former deputy, though, is his suggestion there’s a comparison between Hur’s attacks on Biden’s age with what Mueller — under the direction of Rosenstein and Hur — included in his report, which spent far fewer pages laying out the prosecutorial analysis for far more potential criminal exposure by Trump.

The second issue is what you release in the public. And the problem here with — that’s really baked in the special counsel model is that it’s not really the function of a prosecutor to publicly announce the reasons why they’re not prosecuting.

And so when you layer that into the process, it can result in unfortunate consequences. The Donald Trump report, I think, got people upset in the same way that this one did.

Given his inclusion of Independent Prosecutor Lawrence Walsh here, Rosenstein’s comparison is insane, because he left out the Ken Starr Report (to which investigation, he reminded Tapper, he contributed), which included the most gratuitous descriptions of the subject of the investigation of any of these reports.

Rosenstein’s likening of the Mueller and Hur report is odd for a number of reasons. The part of the Mueller Report focused on Trump was 200 pages, far shorter than the Hur Report yet covering far more overt acts.

Mueller made absolutely no complaint that both Trump and his failson refused to appear before a grand jury whereas Hur’s attacks arose out of Biden’s willingness to sit for several days of a voluntary interview. Mueller let Trump’s decision to invoke the Fifth stand without ascribing criminal motive; Hur made Biden’s cooperation into cause for attack.

But even in smaller details, the reports don’t compare. One thing Hur made up, for example, is that Biden might have alerted his attorneys that there were classified records (in a ratty beat up old box) in his garage, but his team couldn’t find out because if they asked, the answer would be privileged.

We considered the possibility that Mr. Biden alerted his counsel that classified documents were in the garage, but our investigation revealed no evidence of such a discussion because, it if happened, it would be protected by the attorney-client privilege.

This claim only appears in the Executive Summary, where lazy journalists might find it. It appears nowhere in the body of the report (which has to deal with the fact that if Biden had really brought these documents home, he wouldn’t have so willingly let his attorneys search for them). It’s one of the things Biden’s attorneys asked to be corrected.

There are a number of inaccuracies and misleading statements that could be corrected with minor changes:

  • ‘We considered the possibility that Mr. Biden alerted his counsel that classified documents were in the garage but our investigation revealed no evidence of such a discussion because if it happened, it would be protected by the attorney-client privilege.” Report at 22. In fact, your investigation revealed no evidence of such a discussion because it did not happen–not because of any privilege. The President testified he was unaware that there were any classified documents in his possession. Tr., Day II, at 2, 41-42. You did not ask him in his interview or in the additional written questions if he had “alerted his counsel” about classified documents; if you had, he would have forcefully told you that he did not.

Hur’s decision to fabricate the possibility of an attorney-client conversation that did not happen — and his obstinate refusal to correct it — is especially telling given Mueller’s hands-off treatment of attorney-client privilege.

For example, Mueller didn’t even try to ask Jay Sekulow about his role in drafting Michael Cohen’s false claims about the Moscow Trump Tower, even though Cohen said Sekulow was involved.

The President’s personal counsel declined to provide us with his account of his conversations with Cohen, and there is no evidence available to us that indicates that the President was aware of the information Cohen provided to the President’s personal counsel. The President’s conversations with his personal counsel were presumptively protected by attorney-client privilege, and we did not seek to obtain the contents of any such communications.

Nor did Mueller attempt to interview John Dowd about whether he left a threatening voicemail for Mike Flynn’s then-attorney Rob Kelner, to find out whether Trump directed Dowd to make the threat.

Because of attorney-client privilege issues, we did not seek to interview the President’s personal counsel about the extent to which he discussed his statements to Flynn’s attorneys with the President.

In both cases, Mueller let privilege close off investigation into more egregious evidence of obstruction.

So where Mueller let Trump hide behind attorney-client privilege as a shield, Hur flipped that, and used a fabricated attorney-client conversation as a shield to insinuate evidence of guilt where none existed.

In short, Rosenstein went on teevee and made a bunch of cynical claims, defending Hur’s attack on Biden even while claiming that the Mueller Report was just as damning.

As I and others contemplate how Merrick Garland made such a shitty choice for Special Counsel here, I keep thinking about the fact that there’s a little club of Rod Rosentein associates gunning for the Biden men. There’s Hur, and Rosenstein’s hypocritical and remarkably hasty defense of him.

There’s also the reference that Gary Shapley, who is based partly in Baltimore, made about a prosecutor who became Deputy Attorney General, a reference that can only describe Rosenstein.

Mr. Shapley. No. I think I’ve said it, that this is not the norm. This is — I’ve worked with some great guys, some great prosecutors that went on to be U.S. attorneys and went on to be the deputy attorney general and, I think I have experience enough to where it means something.

After having agreed with the IRS that the case against Hunter Biden couldn’t move forward if Shapley were on the team, David Weiss then decided to appoint two AUSAs who would have worked for Hur and Rosenstein as AUSAs in MD USAO, in the case of Leo Wise, for years.

That is, the cabal of men gunning for Joe Biden and his son — all of whom have already engaged in questionable games — have ties to Rod Rosenstein, who still seems to be trying to make it up to Trump for his role in appointing a Special Counsel.

And Rod Rosenstein, as he demonstrated in that interview, is giving Hur, at least, special license to engage in precisely the kind of conduct for which he endorsed firing Jim Comey.


Robert Hur Complained about Biden Notes that Trump Almost Certainly Already Declassified

If you ignore the overreading Robert Hur confessed to in order to justify writing a 388-page report that should have been 75, if you ignore the way Hur improperly used prejudicial language to attack a Presidential candidate and set up impeachment frenzy among Republicans, there are some interesting historic details about Robert Hur’s report, such as the details of what classified documents investigators found.

Thirty-four pages of the report consist of appendices, describing what investigators found where. And because Hur spent 156 pages explaining why he didn’t indict Biden based on the actions of Senate staffers shipping 2,000 boxes of Speech and Debate protected documents first to the Archives and then the University of Delaware decades ago, there are descriptions of how virtually all of the documents got where they ended up (except, of course, the two folders of Afghanistan documents around which he builds the excuse to write a 388-page report).

One of the most interesting descriptions, for example, explains how some of the most sensitive documents the FBI found — an envelope of documents about Obama’s Iran deal, including several with a bunch of compartment markings — probably ended up at Penn Biden Center.

The report describes that the documents were compiled in anticipation of a January 29, 2015 breakfast meeting at the Naval Observatory at which Biden attempted to persuade six Senators who had traveled to Israel together to support Obama’s Iran deal. Biden’s staffers got a bunch of compartmented documents delivered in advance; they were properly signed off in person. A picture of the breakfast meeting shows Biden with an envelope that may contain the documents in question.

Another picture shows Biden with some of the handwritten notes that would end up at Penn Biden Center.

Unlike he did with the Afghan documents, Hur did not invent a narrative to explain why Biden might have wanted to retain these. He noted that Promise Me, Dad, barely mention the Iran deal (it similarly barely mentioned the Afghanistan memo, but that didn’t deter Hur).

Hur surmises that Biden simply kept these really sensitive documents on hand, and they got moved, by someone else, when he left office.

Given his practice of having his front office staff store files he wanted to keep close at hand, Mr. Biden likely gave the EYES ONLY envelope to his executive assistant to keep within reach for future engagement with members of Congress. He and his staff appear to have eventually forgotten about it-along with other older files in the front-office collection-and staff members unwittingly moved it out of the West Wing at the end of the administration.

That’s how Hur declined to prosecute some of the most sensitive documents discovered (documents that, it should be said, would require Senators to testify if they were ever charged).

Less interesting and far more tedious are Biden’s Senate documents. Under Hur’s supervision, the FBI spent what must have been days and days going through the boxes sent in several passes to University of Delaware, discovering decades-old documents, many labeled Confidential which, he conceded, could be either a classification mark or Senate discretion.

Some of the documents are marked “CONFIDENTIAL.” While that is a valid marking for classified information, the term “CONFIDENTIAL” is also used in other contexts not involving classified information. Senate staffers could have understood these to be internal committee documents or simply sensitive documents created by authors who wanted to limit the number of people who viewed them.

It should trouble Members of Congress that Hur never took Speech and Debate under consideration in his analysis, particularly given that these were documents that Biden specifically didn’t want to retain.

Hur spent almost four pages discussing two binders (and one corresponding document found at Penn Biden Center) titled, “Weekend with Charlie Rose,” which were not marked as classified on the front.

It was, quite obviously, a briefing book that got brought back from Aspen to the Wilmington house and never moved from there.

In searching the contents of the box in the garage where they found one of the “Weekend With Charlie Rose” binders, agents found binders from other trips Mr. Biden took as vice president in the same box. 1340 A naval enlisted aide recalled that Mr. Biden kept such binders after returning from his trips. 1311

There must be hundreds of similar briefing books top officials brought back from one or another Aspen conference. That’s a problem. It’s not a crime.

You can see how tedious — and unnecessary — parts of this exercise were.

It’s Hur’s analysis of Biden’s diaries that I find most interesting, and troubling. Hur’s approach to these diaries is one of the most obvious flags of political bias in a report full of them.

Take his use of language. The word “diaries” appears 103 times in the report [note: someone with interns should replicate this work, as it is inexact]. In about five of those instances, Hur quotes the people around Biden referring to these notebooks as diaries. Two instances discuss the Presidential Record Act’s language treating diaries as personal records, exempt from PRA. Maybe ten or so appear in a section where Hur envisions that Biden would describe these as diaries as a defense, but the word is always put in Biden’s mouth. Hur adheres to using “notebooks” here.

Mr. Biden will likely say, he never believed his notebooks, which he thought of as his personal diaries, fell within that arrangement. He treated the notebooks markedly differently from the rest of his notes and other presidential records throughout his vice presidency, for example, allowing staff to store and review his notecards, but not his notebooks. 914 This treatment, he will argue, and the extremely personal content of some of the notebooks, shows that he considered them to be his personal property. Mr. Biden’s notebooks included gut-wrenching passages about his son’s death and other highly personal material. 915 His claim that he believed he did not need to send what he considered to be his personal diary to be stored at a government facility will likely appeal to some jurors. 916

We expect Mr. Biden also to contend that the presence of classified information in what he viewed as his diary did not change his thinking. As a member of the exclusive club of former presidents and vice presidents, Mr. Biden will claim that he knew such officials kept diaries, and he knew or expected that those diaries-like Mr. Reagan’s-contained classified information. 917 He also understood that former presidents and vice presidents took their diaries home upon leaving office, without being investigated or prosecuted for it. [all emphasis mine]

But the overwhelming bulk of those remaining 85 or so uses of the word “diaries” describe Reagan’s (or in two cases, other Presidents’) diaries.

By contrast, there are 461 uses of the word “notebook” in Hur’s report. That’s the word Hur uses to refer to what he quotes people around Biden calling the President’s diaries.

Reagan had diaries. And as a result, when DOJ discovered them, they remained untouched.

Biden has notebooks. By calling these notebooks, Hur permitted himself to do with Biden’s most private thoughts what DOJ did not do with Reagan’s: review them all.

Mr. Biden’s notebooks, which contained, among other things, his handwritten notes taken during classified meetings as vice president, presented a challenge. None of the pages contained classification markings but investigators assessed some of the content was potentially classified. Classification review by intelligence agencies of unmarked information is more challenging and time-consuming than for marked documents. We therefore reviewed all of Mr. Biden’s handwritten notes and selected thirty-seven excerpts totaling 109 notebook pages to submit for classification review. Investigators selected entries they believed were most likely highly classified and that a jury of laypeople would find was national defense information under the Espionage Act. [my emphasis]

All the gut-wrenching passages about Beau and whatever else (likely including a great many gut-wrenching passages about Hunter)? They’re identified with footnotes to make it easier for Jim Jordan to find them. Not dick pic-sniffing, honest. Just an attempt to find 37 excerpts that a jury of laypeople might believe were National Defense Information, even though the Presidential Records Act has a clear exception for diaries, and so this was never going to be charged anyway.

I was interested in what Hur selected anyway, but this background — the linguistic games Hur played to be able to snoop in Biden’s diaries — made the inquiry more important. Some of the 37 excerpts he chose were predictable.

Several weeks after the killing of Osama bin Laden, for example, then-Vice President Joe Biden wrote down his recollections about it, just like every other person involved.

On June 19, 2013, not quite two weeks after the first Snowden leaks, Biden attended a briefing by the National Security Agency.

Because it’s Joe Biden, there has to be an Amtrak connection.

But the selection that fries my ass about this exercise — the selection that makes me confident this shit is intended to blow up later in the year — is this one.

I have no doubt in my mind that these two pages of Biden’s diary are his version of these notes, Peter Strzok’s memorialization of Jim Comey’s description of what happened in the January 5, 2017 White House meeting where Comey, Barack Obama, Joe Biden, Susan Rice, and Sally Yates discussed what the fuck they were going to do about the fact that Trump’s incoming National Security Advisor had been picked up on FISA intercepts undermining Obama’s policy on Russia.

The red outline, as most will remember, is where someone who participated in Jeffrey Jensen’s review added an inaccurate note to package this up for a campaign attack on Biden.

The reason this fries my ass is that this meeting is something that Donald Trump and his allies have spent years politicizing and — as proven by that added misleading date — lying about.

The other reason this fries my ass is that Trump has declassified details of this, over, and over, and over. Hell, he even declassified the intercepts that might explain the HCS-O classification. It’s not entirely clear who did the declassification review of this (Hur had State stand in for the National Security Council to avoid conflict, but not in this case).

But particularly given the politicized background of this investigation, Hur should have left this well enough alone. It should not be the case that by licensing himself to snoop in Biden’s diaries, Hur can dig out the things Donald Trump would most like to read.

Robert Hur licensed himself to rifle through Joe Biden’s most personal thoughts by calling Biden’s stacks of paper “notebooks” rather than “diaries.” He then provided specific details about not just where to find the painful memories of his family struggles. But also one event that Trump has spent years trying to misrepresent.


Judge Mark Scarsi Refuses Accommodations That Trump’s Judges Have Granted

While the judges in former President Trump’s federal prosecutions have been issuing reasonable (in Tanya Chutkan’s case) and unreasonable (in Aileen Cannon’s case) extensions in pretrial deadlines, the judge in Hunter Biden’s Los Angeles case seems intent on keeping a politically damaging trial scheduled for the middle of campaign season, June 20.

Last week, Abbe Lowell requested two accommodations in the pretrial schedule in Los Angeles: first, that he be permitted to hold off filing the four (actually, three) filings fully briefed before Judge Maryellen Noreika that he will also file in Los Angeles: a motion to dismiss based on immunity under the diversion agreement, a selective and vindictive prosecution claim, and a claim that David Weiss was improperly appointed. Lowell also mentioned the constitutional challenge to the gun charge, but that won’t be filed in Los Angeles. At the initial appearance, Lowell said instead there would be one based on “the actions of the IRS agents that were involved.”

Here’s an updated version of my Howard Johnsons-colored table showing how all these cases interrelate, including the filings we should expect in both federal cases; I’ve put an updated version of the eight cases Lowell is juggling below (and have started tracking them here).

Lowell did not mention the as-yet unfiled motion to suppress the laptop he said he’d file in Delaware on January 30. I’ll come back to that.

In addition, Lowell requested a 3-week extension on the initial filing deadline, from February 20 to March 12, for the motions that will be unique to Los Angeles; he did not mention a filing about the IRS agents, but did mention motions on the Statute of Limitations (presumably affecting just the 2016 tax year), venue (possibly affecting both the 2016 and 2017 year), and multiplicity. To justify that, he cited a death in the family of one of the lawyers working on these filings, as well as several other deadlines pending:

  • Responses to motions to dismiss in the Garrett Ziegler and Rudy Giuliani lawsuits at the end of the month
  • A February 22 hearing in the John Paul Mac Isaac suit and Hunter’s countersuit
  • Hunter’s February 28 impeachment deposition in the House

Judge Scarsi denied the motion with no comment.

To be sure, I’m not remotely surprised Scarsi denied Lowell’s motion to hold off on the identical motions already filed in Delaware.

At the initial appearance on January 11, Scarsi raised those filings himself.

[T]he Court has gone through and actually read what’s been filed so far in Delaware. So the Court wanted to come up to speed on the issues [at] play here. And so, we’ve got — at least we’re up to speed in what’s been filed so far.

The parties have spent, it looks like, a lot of time, or will spend time briefing issues in Delaware. And I think that should help us expedite matters here, because it wouldn’t surprise me if some of the same issues raised in Delaware are raised in this Court. In fact, the Court anticipates that happening.

Scarsi even ordered the parties to cut the 70-page filings submitted before Judge Noreika down to something like 20, double his normal limit of 10 pages (the parties have yet to file a stipulation showing that’s what they’ve agreed on).

[T]he parties know from reading the Court’s standing order, the Court’s standing order in criminal contemplates that the page limitations on motions is 10 pages. Motions and oppositions, and replies not necessary.

Now the Court is willing to grant the parties a little leeway here, to exceed the page limits, you know, contemplating doubling them, at most.

Scarsi even recognized that the diversion filing might trigger an interlocutory appeal, because he warned Lowell that the precedent (which he named) governing interlocutory appeals in the Ninth Circuit is fairly limited and directed him to address that issue in his initial filing.

At the time, Lowell knew the briefing deadline before Judge Noreika, and so could have requested to hold those three identical motions at that point.

Plus, it’s not the case that the motions will be identical. The diversion filing in Los Angeles will and always would have been mostly a place-holder; if Noreika rules against Hunter regarding the diversion agreement, then there would be no basis to make the same claim in Los Angeles absent an interlocutory appeal in Delaware. It’s only if she rules for Hunter that Lowell’s claim that the immunity in the gun diversion extends to the tax case would come into play.

The selective and vindictive prosecution filing in Los Angeles will have to swap the comparators showing how no non-violent person in recovery from addiction has been charged with the same gun charges in Delaware with comparators showing that no one who has paid their taxes, much less someone who — Abbe Lowell claims but has not yet shown proof — overstated their income has been criminally charged, with a mention of Roger Stone’s more lenient treatment as well. Lowell mentioned the two tax laws criminally prohibiting the kind of pressure that Trump exercised in Hunter’s case only in passing; they would seem to be far more central here. And given the fact that the US Attorney for Los Angeles, Martin Estrada, was among those threatened as a result of the political pressure on this case, it would seem useful for Lowell to raise the threats elicited by those demanding this prosecution.

Even the Special Counsel challenge could be tweaked given Weiss’ admission to Congress that he has never been subject to the kind of oversight from political appointees that Morrison v. Olson requires. Weiss was already functioning as a Special Counsel before demanding appointment as such, presumably to get the opportunity to write another political hit piece targeting a Biden man (or men).

I’m not even that surprised that Scarsi refused to budge on the schedule. At the initial appearance he not only warned that he likes to move quickly,

Again, if we’re going to move this case either forward or expeditiously, and efficiently — and that’s what this Court likes to do. We like to move things along, because I think it’s better for all the parties and we don’t have things linger.

But Scarsi also suggested that because he set a schedule first, Judge Noreika should now have to accommodate his schedule.

So what I’m going to do is, I’ll go ahead and issue an order with those dates. That will hopefully prevent conflict with Delaware, because this order will be in place and the Court in Delaware will likely be aware of it.

So Lowell was on notice of all of that.

There’s one thing Lowell wasn’t on notice of on January 11, and his request for a delay may be about something other than the motions to dismiss.

Delaware Superior Court Judge Robert Robinson only set the February 22 hearing in the John Paul Mac Isaac lawsuit and Hunter’s counterclaim on February 1 at 8:52 AM. Per Lowell’s declaration and email record, 38 minutes after Robinson set that hearing, Lowell first reached out to prosecutors about this delay (in their dickish fashion, they blew him off for six days).

If Robinson were to rule in Hunter’s favor — if he were to rule that, under Delaware law, JPMI didn’t own Hunter’s laptop when he first offered it up to the FBI on either October 9 (JPMI’s version) or October 16, 2019 (FBI’s), less than a year after someone who may or may not be Hunter Biden dropped it off, if he were to rule that JPMI violated his own promise to protect Hunter Biden’s data, not least by snooping through Hunter’s data well before even he, JPMI, claimed his intake form gave him ownership of the laptop — then it might have fairly dramatic impact on any motion to suppress the laptop.

That’s true, not least, because (if you can believe JPMI and it’s not clear you can), after JPMI sent a hard drive with the data across state lines to his father, the FBI told his father that, “You may be in possession of something that you don’t own.” After which JPMI and his father sent that same data across even more state lines, including to Congress and Rudy Giuliani. And yet rather than opening a criminal investigation into JPMI for interstate trafficking of the potentially stolen data of the former Vice President’s son, David Weiss instead decided to build an entire case around that data.

Worse still, JPMI’s public claims about what he saw in the data are obviously false: of particular note, there are no known emails substantiating his claims that the laptop showed, “information about Ihor Kolomoyskyi and Mykola Zlochevsky, and their involvement in using Hunter and Devon to protect the billions they embezzled from the IMF.” The crime of which JPMI told the FBI they’d find evidence on the laptop was entirely made up — and made up to create a video that might serve Trump’s impeachment defense.

Lowell’s motion to compel — submitted in Delaware two days before that hearing was set — describes receiving “The Mac Shop files.” It doesn’t describe receiving the initial FBI legal review that concluded JPMI and his father likely didn’t own that laptop or data. It doesn’t describe receiving the 302s documenting the FBI’s interactions with JPMI (302s that were also not shown to case agents who might have to testify at trial). If warnings that JPMI didn’t own this data really exist, and if prosecutors are withholding it to cover up real problems with their reliance on the laptop, it would be fairly important evidence.

A favorable Delaware ruling would likely have more impact on the Los Angeles case than anything but a ruling in favor of Hunter’s diversion argument in Delaware, because it would show that David Weiss chose to use poison fruit to investigate Hunter Biden rather than pursue a case of interstate data theft. The SDNY case against those who stole Ashley Biden’s diary and a thumb drive with tax records and photographs on it and trafficked them across state lines shows that such things can be prosecuted.

At the initial hearing, Scarsi told Lowell that the, “February 20th date is for motions that you know now that you intend to bring.” When Lowell said he’d file a motion to suppress the laptop and everything else in Delaware, he pointed to several other things — such as reliance on witness testimony from a Los Angeles grand jury post-indictment and the filing for the warrant itself post-indictment — to get as a basis to suppress. Lowell still hasn’t mentioned a motion to suppress the laptop to Scarsi. He’s likely now trying to determine whether he can and should wait on a ruling from Robinson before he files such a suppression motion to Scarsi, who has promised to rule expeditiously.

It’s not surprising that Scarsi denied Lowell’s request (though it is a telling contrast to the treatment Trump is getting).

But it is also the case that these moving parts really may affect the case before him.

Update: Abbe Lowell has filed a status report in the Delaware case in case Judge Noreika decides she doesn’t want Scarsi to preempt her.


1) Delaware Gun Case (Maryellen Noreika)

[RECAP docket]

September 14: Indictment

October 3: Arraignment

October 12: First Discovery Production (350 pages focused on gun case), including iCloud data and “a copy of data from the defendant’s laptop”

October 13: Motion to Continue

October 19: Order resetting deadlines

November 1: Second Discovery Production (700,000 pages on tax charges — no mention of FARA investigations)

November 15: Hunter subpoena request

December 4: Weiss subpoena response

December 11: Motions due

December 12: Hunter subpoena reply

January 9: Third Discovery Production (500,000 pages focused on tax case)

January 16: Responses due

January 30: Replies due

January 30: Motion to compel

2) Los Angeles Tax Case (Mark Scarsi)

[RECAP docket]

Hunter was indicted on December 7 and made a combined arraignment/first appearance on January 11. At that hearing, Judge Mark Scarsi set an aggressive (and, from the sounds of things, strict) schedule as follows:

February 20, 2024: Motions due

March 11: Response due

March 18: Replies due

March 27 at 1:00 p.m.: Pretrial motion hearing

April 17: Orders resolving pretrial motions.

June 3 at 1:00 p.m.: Status conference

June 20: Trial

3) House Dick Pic Sniffing (James Comer and Jim Jordan)

November 8: James Comer sends a pre-impeachment vote subpoena

November 28: Lowell accepts Comer’s offer for Hunter to testify publicly

December 6: Comer and Jordan threaten contempt

December 13: Pre-impeachment deposition scheduled; Hunter gives a press conference and states his data has been “stolen” from him

December 13: Impeachment vote authorizing subpoena

January 10: Oversight and Judiciary refer Hunter for contempt

January 12: Lowell invites Comer and Jordan to send another subpoena, now that they have the authority to enforce it

January 14: Jordan and Comer take Lowell up on his invitation

February 28: Deposition

4) IRS Lawsuit (Tim Kelly)

[RECAP docket]

September 18: Privacy Act lawsuit

November 13: DOJ asks for extension to January 16

January 16: DOJ files motion for partial dismissal

January 23: Joint motion to continue

January 30: Original deadline for Hunter response

February 5: Amended complaint

February 9: DOJ asks for delay for response from February 20 to February 27

5) John Paul Mac Isaac’s Suit and Hunter’s Countersuit (Robert Robinson)

Last summer, John Paul Mac Isaac and Hunter both sat for depositions, on May 31 and June 29, respectively.

Last fall, Hunter Biden subpoenaed people like Rudy Giuliani, Robert Costello, Steve Bannon, Yaacov Apelbaum (who made a copy of the contents of the laptop), Tore Maras (who has described adding things to the laptop). In November, Hunter also served a subpoena on Apple.

On January 4, the parties to John Paul Mac Isaac’s suit and countersuit filed to have their pending motions decided by a judge. The media defendants — CNN and Politico — are filing to dismiss. Hunter and JPMI filed competing motions for summary judgment.

And Hunter is filing to quash a bunch of subpoenas, initially 14, to Hunter’s parents, uncle, ex-wife, former business partners, and several people with his father, like Ron Klain and Mike Morell. Though after that, JPMI attempted to subpoena Hunter’s daughters.

Since then, Judge Robinson stayed John Paul Mac Isaac’s subpoenas and scheduled hearings in the Motions to Dismiss (from CNN and Politico) and Motions for Summary Judgement (from Hunter and JPMI) for February 22.

6 AND 7) Hacking lawsuits against Garrett Ziegler and Rudy Giuliani (Hernan Vera)

[RECAP Ziegler docketRECAP Rudy docket]

September 13: Complaint against Ziegler

September 26: Complaint against Rudy and Costellonoticing Ziegler suit as related case

November 15: Ziegler gets 30 day extension

December 1: Costello gets 30 day extension

December 7: After swapping attorneys, Ziegler gets extension to December 21

December 21: Ziegler motion to dismiss and request for judicial notice (heavily reliant on JPMI suit)

January 17: Costello motion to dismiss with Rudy declaration that makes no notice of his fruit and nuts payments relating to Hunter Biden

January 22: Lowell successfully requests to harmonize MTD hearing for both hacking lawsuits

February 8: Rescheduled date for hearing on motion to dismiss

February 22: Rescheduled date for hearing on motion to dismiss

End of February: Response to motions to dismiss due

March 21: Joined date for hearing on motion to dismiss

8) Defamation against Patrick Byrne (Stephen Wilson)

November 8: Complaint

January 16: After swapping attorneys, Byrne asks for 30 day extension

February 6: Rescheduled response date


Open Thread: Trump v. Anderson before SCOTUS

[NB: check the byline, thanks. /~Rayne]

Because everyone will likely be restless and itchy about today’s hearing, I’m putting up an open thread.

Feel free to discuss Trump v. Anderson here but bring all your off-topic discussion to this thread, stay on topic in other threads.

Wikipedia page for Trump v. Anderson here, in case you need a primer:

Trump v. Anderson (No. 23-719, filed January 3, 2024)

In a nutshell, Colorado’s state supreme court found Donald J. Trump disqualified from the state’s primary ballot under Section 3 of the 14th Amendment which bars candidates who have participated in insurrection or rebellion against the Constitution in spite of swearing an oath to uphold and defend the Constitution.

Trump appealed the ruling; the U.S. Supreme Court will hear oral arguments today.

The hearing is scheduled to begin at 10:00 a.m. ET.

You can listen to the arguments at https://www.supremecourt.gov/oral_arguments/live.aspx – they are expected to run over the scheduled 80 minutes.

Long-time community member harpie has shared quite a few more resources pertinent to today’s arguments below in comments (thanks, harpie!).

~ ~ ~

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Thank you.


Seth DuCharme’s Information Operation

Former Bill Barr aide Seth DuCharme did something funny in his two sentencing memos for former FBI counterintelligence professional Charles McGonigal.

Secret meetings

In his SDNY sentencing memo, he redacted a long paragraph which, by context, purported to describe cooperation.

SDNY was having none of that.

They explained that the redacted passage described a single meeting he had in which he shared — per a participant — “insignificant” information, not anything that merited a bonus for cooperation.

McGonigal describes an interview with other government agencies, at which he answered questions about misconduct others may have committed and his own conduct. (Br. 15- 16). The U.S. Attorney’s Office conducting this prosecution did not request that meeting, did not attend that meeting, and has little knowledge of what was said there, beyond a brief summary from one of its participants—who characterized the contents of McGonigal’s statements as, in substance, insignificant. There thus appears to be no basis for McGonigal to “presume” that his statements were “of some assistance.” (Br. 16).11 Nor can McGonigal seek sentencing credit for this meeting by citing United States v. Fernandez, 443 F.3d 19, 33 (2d Cir. 2006), abrogated by Rita v. United States, 551 U.S. 338 (2007). As McGonigal notes, that case states that a sentencing court could consider a defendant’s efforts to cooperate with the Government even if those efforts did not result in a cooperation agreement. (Br. 16). But its holding was that the district court was within its discretion to conclude “that the cooperation was fitful and that it should not be used to lighten [the defendant’s] sentence.” Fernandez, 443 F.3d at 34 (internal quotation marks omitted). This Court should reach the same conclusion with respect to McGonigal’s attempt to obtain a lenient sentence by attending a single meeting.

In a footnote, they tattled on DuCharme for trying to inflate the value of it by unilaterally redacting it.

11 The Court should not infer from McGonigal’s sealing of the corresponding paragraph in his submission that he has provided information of any value. The Government did not ask that this paragraph be sealed. Rather, McGonigal’s attorney informed the undersigned and the Washington, D.C. prosecutors that he intended to seal the paragraph, and neither objected.

DuCharme didn’t even attempt this ploy in DC. This time he left the paragraph unsealed.

When the United States presented him with a reasonable plea offer during the discovery phase of this case, Mr. McGonigal swiftly agreed to accept responsibility for his actions. In addition, he agreed to meet with representatives from seven different DOJ offices after his plea and provided truthful information to the government during a seven-hour interview session.

[snip]

Moreover, after Mr. McGonigal entered his plea, on November 17, 2023, at the request of the United States, Mr. McGonigal met with seven components28 of the Justice Department simultaneously in Manassas, Virginia, where he answered all questions presented to him on a wide variety of topics, including detailed discussions of his understanding of certain events, and his considered assessment of what the FBI can do to improve its compliance policies and practices to detect and deter improper conduct within the organization. We have been informed that the United States found the information that Mr. McGonigal provided during the full-day interview to be truthful and, we presume, of some assistance given the length and detail of the discussions.

Though by feigning coy about which parts of DOJ he met with, he again tried to fluff the import of it.

28 The specific components represented are not listed here, out of respect for sensitivities related to their specific areas of responsibility, but that information is available upon request if it is material to Court’s consideration.

DC USAO, which must have set up the meeting, didn’t mention it. Instead, they described the extensive effort FBI has made to make sure McGonigal didn’t drum up investigations into other people to help friends overseas, as he seems to have done for Albania.

Moreover, given the defendant’s senior and sensitive role in the organization, the FBI has been forced to undertake substantial reviews of numerous other investigations to insure that none were compromised during the defendant’s tenure as an FBI special agent and supervisory special agent. The defendant worked on some of the most sensitive and significant matters handled by the FBI. PSR ¶¶ 98-101. His lack of credibility, as revealed by his conduct underlying his offense of conviction, could jeopardize them all. The resulting internal review has been a large undertaking, requiring an unnecessary expenditure of substantial governmental resources.

This may be the only passage, in either DOJ sentencing memo, that discussed what a lasting harm having a top spymaster team up with foreigners seeking favors is for the FBI.

It suggests that DOJ might trust McGonigal to discuss “compliance policies,” but no longer the counterintelligence investigations in which he played a role.

Non-spy charges against the spy chief

I thought DuCharme’s ploy to provide the appearance of cooperation via evasion and redaction made an amusing introduction to something else I’ve been meaning to write, as part of my Ball of Thread series.

There was some consternation when McGonigal got sentenced in December to (just) 50 months for working for Oleg Deripaska. The complaint was, I think, that McGonigal hadn’t been labeled a spy, with some belief that would have changed the outcome.

I’d like to explain why, I suspect, DOJ did what they did.

I think they got a similar outcome as they would have had they called what he did “spying,” but deprived McGonigal — and just as importantly, DuCharme, who tried to pitch the “insignificant” information he shared as some great cooperation — from conducting an information operation to undercut the prosecution.

McGonigal was prosecuted for two schemes.

In DC, he was charged for secretly getting paid by, and traveling with, top Albanians, and ultimately predicating a FARA investigation into a Republican lobbyist with ties to a rival Albanian faction. For that, McGonigal was charged with a bunch of disclosure violations, making the secrecy the crime, not the scheming with Albania. The government is asking Judge Colleen Kollar-Kotelly to sentence him on February 16 to 30 months; they have not explicitly asked her to impose the sentence consecutively, which is the only way this sentence would extend his detention.

In NY, he was charged for secretly working with Oleg Deripaska. For that, he was charged with sanctions violations and money laundering. After he pled to conspiracy, the government had asked Judge Jennifer Rearden to sentence him to the max 60 months; she gave him the aforementioned 50 month sentence.

The government has not claimed to have proof that McGonigal shared any sensitive information with Deripaska or the Albanians, whether they have it and aren’t telling, or whether there is none. Without it, you would not expand McGonigal’s potential sentence by charging him with the crimes that might label him a spy: Foreign Agent crimes in DC, since he was working for a foreign state, or FARA in NY, since Deripaska is not quite the same thing as the Russian state. By larding on the disclosure violations in DC and asking for an obstruction enhancement, DOJ has raised total possible exposure there. And no FARA charges would carry a tougher sentence than the potential 20 year money laundering sentence that McGonigal avoided by pleading out in SDNY.

That is, DOJ charged McGonigal in such a way that the punishment would be the same, the 20 years on the money laundering charge or five-plus on disclosure violations, without giving McGonigal a cause to demand information exposing his operations at FBI.

But he did try.

Deripaska’s visit

Before I explain how, let’s situate things a bit.

According to Business Insider, a tip from the UK is one of the things that led to the investigation into McGonigal. They picked him up via the surveillance of a Russian in London they were tracking.

In 2018, Charles McGonigal, the FBI’s former New York spy chief, traveled to London where he met with a Russian contact who was under surveillance by British authorities, two US intelligence sources told Insider.

The British were alarmed enough by the meeting to alert the FBI’s legal attaché, who was stationed at the US Embassy. The FBI then used the surreptitious meeting as part of their basis to open an investigation into McGonigal, one of the two sources said.

Whether the UK picked him up in 2018 or 2019, according to the indictment his meetings with Deripaska — including in London — were in 2019.

In or about 2019, after McGONIGAL had retired from the FBI, SHESTAKOV and McGONIGAL introduced [Evgeny Fokin] to an international law firm [Kobre & Kim] with an office in Manhattan, New York (the “Law Firm”). [Fokin] sought to retain the Law Firm to work in having the OFAC Sanctions against Deripaska removed, a process often referred to as “delisting.”

During negotiations to retain the Law Firm, McGONIGAL traveled to meet Deripaska and others at Deripaska’s residence in London, and in Vienna. In electronic communications exchanged as part of these negotiations, McGONIGAL, SHESTAKOV, [Fokin] and others did not refer to Deripaska by his surname, but rather used labels such as “the individual,” “our friend from Vienna,” and “the Vienna client.”

DuCharme asserted at McGonigal’s SDNY sentencing that working with a law firm on delisting Deripaska in 2019, “would have been legal.”

After Charlie left the FBI, he met Oleg Deripaska. He met him in London in a prestigious international law firm with a lawyer. But I think the government agrees that that part would have been legal, because there is the carve-out for certain legal representations.

That didn’t go through.

It’s true that there’s a carve out for legal services that would make that, in general, legal. Probably far less so if you know that the guy you’re working with is a Russian spy.

DuCharme claims McGonigal did not, at least with regards to Fokin.

So this person, Fokin, reaches out to Charlie after that at some point. And just to be clear, as far as Mr. McGonigal knows, Fokin is not, as I guess is rumored in the media, to be a Russian intelligence officer. That’s not his understanding. But he certainly knows him to be associated with Oleg Deripaska; and he certainly knows that Deripaska is on the sanctions list.

The indictment and government sentencing memo, however, describe that McGonigal told a subordinate that Fokin was a spy.

McGonigal also told a subordinate that he wanted to recruit Fokin, who was, according to McGonigal, a Russian intelligence officer.

Let’s situate where things were in 2019. McGonigal was, without question, retired from the FBI. But at the time, DuCharme was working for Bill Barr, among other things, setting up an investigation to undermine the Russian investigation that disclosed how a close Deripaska associate, Konstantin Kilimnik, used Paul Manafort’s debt to Deripaska as leverage to learn how Trump planned to beat Hillary Clinton and also discuss carving up Ukraine to Russia’s liking. DuCharme would go on from there to set up a back channel via which Rudy Giuliani could channel dirt, including from a known Russian spy, into the Hunter Biden investigation.

A meeting with a law firm would have been legal. And also, DuCharme and his boss were working hard to blame the 2016 Russian operation on Hillary rather than Deripaska, recklessly chasing leads to those involved all over the world.

In fact, among the leads that DuCharme was chasing in 2019 as he and John Durham (he of the studied ignorance about what really happened) dreamt up ways to undermine results showing Trump welcomed help from Russia — along with the Russian-backed Ukrainians and Joseph Mifsud — involved Deripaska.

On July 3, 2019, DuCharme emailed Durham about a Fox News report that FBI had worked with Oleg Deripaska in an attempt to get Robert Levinson released and returned by Iran.

To be sure, unlike Mifsud and the Ukrainians, there’s no record DuCharme and Durham and Barr did chase the possibility that Deripaska would have damning information on Andy McCabe.

Though two months before DuCharme sent Durham a lead on Deripaska, on May 1, 2019, Bill Barr’s face melted when Ben Sasse asserted that Deripaska was a “bottom-feeding scum-sucker.”

Anyway, back to McGonigal and his charges for secretly working for Deripaska.

The investigation into McGonigal went overt in November 2021 and after that point, DuCharme described, McGonigal’s counsel, presumably DuCharme himself, remained in contact with the government.

More than a year before his arrest, on November 21, 2021, FBI agents conducted a recorded, voluntary interview of Mr. McGonigal at Newark airport when he returned home from an overseas business trip. While he was speaking to agents at the airport, another team of agents visited Mr. McGonigal’s home in lower Manhattan and met with his wife. Over the following year, Mr. McGonigal was aware of the ongoing investigation into his business dealings and remained in communication with the United States through his counsel.

So as SDNY and DC USAO were contemplating how to charge their former spymaster leading up to his January 2023 indictments, they knew that they would have to contend not just with McGonigal’s former Top Secret clearance, but also that of his attorney, the guy who in at least two cases facilitated the intake of spy dirt for partisan purposes on behalf of the former Attorney General.

Graymail

DuCharme was well aware of that.

In his DC sentencing memo, for example, he described how, by pleading guilty relatively quickly, McGonigal saved the government from engaging in the Classified Information Procedures Act process, the process by which the judge acts as an intermediary to make sure that defendants can get classified information that would be helpful to a defense without unnecessarily compromising information that would be of no help.

In contrast to Mr. Saffarinia, Mr. McGonigal quickly accepted responsibility for a single count of false statements through his guilty plea, avoiding any further expenditure of government resources, including potential Classified Information Procedures Act (“CIPA”) litigation.

It’s not true, however, that McGonigal spared SDNY of using the CIPA process. Though something very funky happened in that process in SDNY, which I believe is a big testament to the reason why they treated McGonigal’s exposure there the way they did, by charging him with crimes that would carry the same punishment without charging with a foreign agent crime. I first wrote about this funkiness here.

It seems like SDNY pre-empted a full-blown CIPA practice by having select documents, dating to well before McGonigal got into discussions with Deripaska’s people, that made clear that Deripaska was, “associated with a Russian intelligence agency” that must be GRU, which meant nothing that happened downstream of that knowledge would be all that helpful to McGonigal’s defense. That is, DuCharme may claim, evidence to the contrary, that McGonigal didn’t believe Fokin is a spy, but SDNY declassified a very small subset of documents making it clear McGonigal had to have known Deripaska was associated with GRU.

That’s part of the story that would have been told had this gone to trial: that when McGonigal secretly went to work for Deripaska, he knew of his ties to Russian intelligence.

SDNY must have planned this from the start.

It started on February 8, 2023, shortly after his indictment, when SDNY filed a CIPA letter, requesting a CIPA 2 conference.

Often, these CIPA letters review the entire CIPA process. The one Jay Bratt submitted in the Trump stolen documents case, for example, went through Section 1, Section 2, Section 3, Section 4, Section 5, Section 6 (broken down by sub-section), Section 7, Section 8, Section 9, and Section 10.

Not the SDNY one in the McGonigal case. It went through Section 2 — asking for a conference — and then stopped.

The Government expects to provide the Court with further information about whether there will be any need for CIPA practice in this case, and to answer any questions the Court may have, at the CIPA Section 2 conference.

In response, on March 1, DuCharme submitted his own CIPA letter, laying out Sections 1 through 8. Along the way, DuCharme promised that as part of CIPA 4, he would submit a memo telling Judge Jennifer Rearden what kind of information would be helpful to Charlie McGonigal’s defense, much later describing surveillance that must exist.

Under Section 4, upon a “sufficient showing” by the government, the Court may authorize the government to “delete specified items of classified information from documents to be made available to the defendant . . . , to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove.” 18 U.S.C. § App. III § 4. The government makes a sufficient showing that such alternatives are warranted through an ex parte submission to the Court. See id; see also United States v. Muhanad Mahmoud Al-Farekh, 956 F.3d 99, 109 (2d Cir. 2020). Of critical importance to the fairness of the process, the Court may review, ex parte and in camera, the classified information at issue to determine whether and in what form the information must be disclosed to the defendant, and whether the government has truly satisfied its discovery obligations. See, e.g., United States v. Aref, No. 04 CR 402, 2006 WL 1877142, at *1 (N.D.N.Y. July 6, 2006). To assist the Court in this analysis, the defense will provide the Court with its initial view of the scope of material that will be relevant and helpful in the preparation of the defense at the upcoming conference and will supplement that information as appropriate.

[snip]

In the present case, there is far more than a trivial prospect, and in fact there is a high likelihood if not certainty, that the IC possesses information that is relevant and helpful to the preparation of the defense. The indictment charges violations of IEEPA based on an alleged agreement to provide services on behalf of Oleg Deripaska, a foreign national with allegedly close ties to a foreign government, who, it is reasonable to assume, may have been a target of surveillance by the United States during the relevant time frame. Moreover, the indictment makes specific references to previously-classified information that was in the possession of the IC, to which Mr. McGonigal had access by virtue of his position as Special Agent in Charge of the Counterintelligence Division of the New York Field Office. [my emphasis]

Seth DuCharme set out to know, among other things, what kind of surveillance FBI obtained on McGonigal, including whatever surveillance the Brits picked up when they first grew concerned about McGonigal meeting certain Russians in London.

Things never got to CIPA 4.

On March 3, Judge Rearden confirmed she would hold two separate CIPA conferences. The SDNY conference was held on March 6. On March 7, the day after SDNY’s CIPA conference and the day before McGonigal’s, SDNY responded to McGonigal’s CIPA letter. It suggested that any investigation the Intelligence Community did of McGonigal’s “corruption” by Deripaska would not be helpful to his defense. But if McGonigal wanted to make a list of things he specifically wanted, he should put that in writing.

McGonigal’s letter repeatedly asserts that the intelligence community must possess information that is helpful to his defense, without specifying what that information must be or what agencies must possess it. (See, e.g.¸ Dkt. 30 at 6 (claiming that the intelligence community writ large “may be presumed to have been involved” in the investigation of this matter); id. at 7 (asserting that “in fact there is a high likelihood if not certainty, that the IC possesses information that is relevant and helpful to the defense”)). At best, he has suggested that the general subject of this case—a recently retired FBI intelligence official being corrupted by a Russian oligarch—is of the type that might be of interest to intelligence agencies.2 Even if that claim is true, however, it is a far cry from suggesting that those agencies possess anything helpful to the defense.

[snip]

Finally, McGonigal suggests that he will “identify categories of classified information that will be material to his defense at the defendant’s ex parte Section 2 conference.” (Dkt. 30 at 7). But it is unclear why he needs to do this in an ex parte conference. As he elsewhere acknowledges, CIPA establishes procedures for the defense to identify classified information it wishes to offer, and those procedures are not ex parte.

[snip]

The Government thus trusts that McGonigal will identify any classified information he claims is relevant to the Government, as CIPA elsewhere expressly provides. See id. § 5 (“If a defendant reasonably expects to disclose or to cause the disclosure of classified information in any manner in connection with any trial or pretrial proceeding involving the criminal prosecution of such defendant, the defendant shall, within the time specified by the court or, where no time is specified, within thirty days prior to trial, notify the attorney for the United States and the court in writing.” (emphasis added)).3

On May 8, SDNY filed a short letter informing Judge Rearden that they had declassified the material they had told her they would in their own CIPA 2 hearing and provided it to the defense.

At the March 6, 2023 ex parte conference held pursuant to Section 2 of the Classified Information Procedures Act (“CIPA”) in the above-referenced case, the Government described to the Court certain materials that the Government was seeking to declassify. The Government writes to confirm that those materials have been declassified and produced to the defendants. At this time, the Government does not anticipate making a filing pursuant to Section 4 of CIPA and believes it has met its discovery obligations with respect to classified information.

It seems likely that this declassified material includes the document, which McGonigal received in May 2017, identifying Deripaska’s ties to (what must be) GRU disclosed in the government’s sentencing memorandum. Effectively, SDNY was saying that, once you understand Deripaska was GRU (and whatever else also got declassified), anything that came after that would not be helpful to your defense.

DuCharme was not yet done. On June 23, he submitted another letter describing that it was perplexing and puzzling and concerning and hard to imagine that there wasn’t more.

With respect to the way forward as it pertains to classified discovery, as we noted at our last court appearance, the government has indicated that it “does not anticipate making a filing pursuant to Section 4 of CIPA and believes it has met its discovery obligations with respect to classified information.” See ECF No. 44 at 1. In a subsequent series of conversations, the government informed us, in a general way, that it has satisfied its discovery obligations relating to classified information. The government’s position is perplexing. While it is not surprising that the government does not wish to account for its each and every step in satisfying its constitutional obligations, it is puzzling and concerning that the government would, at this stage, determine that no CIPA Section 4 presentation to the Court is appropriate, when we are a year away from trial and the government’s discovery obligations with respect to Rule 16, the Jencks Act, Brady and Giglio are ongoing. The indictment and the U.S. Attorney’s press release include accusations that foreseeably implicate classified information within each of the four categories of discoverable information. With respect to the category of impeachment material alone, it is hard to imagine a world in which there are no classified materials that touch on the credibility of the government’s trial witnesses (or alleged unindicted coconspirator hearsay declarants), and which would require treatment under Section 4 of CIPA.

DuCharme suggested that maybe the problem was that the information helpful to McGonigal’s defense was simply super duper classified, but that it still had to be turned over.

As an initial matter, the classification level of information in the possession of the United States is wholly irrelevant as to whether or not it is discoverable. Classification rules appropriately exist to safeguard the national defense of the United States by limiting the dissemination of such information in the normal course. See Exec. Order No. 13526, 75 Fed. Reg. 707, (2009) (prescribing a uniformed system for classifying national security information). But once a defendant is indicted, the government is obligated to consider whether information within its holdings is discoverable under the applicable rules, statutes and constitutional caselaw

The letter explained that both McGonigal and Seth DuCharme could be trusted with the government’s classified information — after all, McGonigal was only indicted for cozying up to the Russian oligarch he had hunted for years, not mishandling classified information. And Seth DuCharme was, until recently, trusted with Bill Barr’s most sensitive secrets, including about the side channels ingesting dirt from known Russian agents.

Further, it is hard to understand why the government is so reluctant to be more transparent in explaining its discovery practices to the defense in this case. While many national security cases involve defendants with no prior clearances or experience with the U.S. Intelligence Community, and may involve only recently-cleared defense counsel who may be new to navigating the burdens and responsibilities of handling classified information, here, those concerns do not apply. Mr. McGonigal was one of the most senior and experienced national security investigators in the FBI with significant direct professional experience in the areas germane to his requests for assurances about the thoroughness of the government’s discovery analysis. In addition, before moving to private practice, the undersigned counsel served as the Chief of the National Security Section, the Chief of the Criminal Division and the Acting United States Attorney in the U.S. Attorney’s Office in the Eastern District of New York as well as the Senior Counselor to the Attorney General of the United States for National Security and Criminal matters, and has responsibly held TS/SCI clearances with respect to some of the United States government’s most sensitive programs. As the Department of Justice has concluded in re-instating defense counsel’s clearances for the purpose of this case, we are trustworthy. So, here, we have a defendant and defense counsel who are highly respectful and experienced with regard to the protocols for handling and compartmentalizing sensitive classified information, and simply request comfort that the government has indeed done everything it would normally do in a case such as this, with sufficient detail to assess the credibility of the government’s position.

Notably, Mr. McGonigal has not been accused of mishandling classified information in the cases brought against him, and he maintains respect for the national security interests of the United States, as of course do we. In addition, we are not asking the government to disclose to the defense any sensitive sources and methods by which discoverable information was collected—only to provide greater transparency to us, and to the Court, as to how it views its procedural obligations, so that we may consider the fairness and reasonableness of the government’s approach. Mr. McGonigal is personally familiar with this process from his time at the FBI, and it is reasonable for him to expect to be treated no worse than the other defendants who have come before him. To adequately represent Mr. McGonigal, it seems only fair that we be allowed to hold the United States government to the same standards that the defendant upheld as a national security and law enforcement professional, and to make a record of the government’s position.

Then DuCharme made a helpful offer to meet in a secure hearing or to submit a more highly classified brief — perhaps taking SDNY up on their instruction to put it in writing — again suggesting he had something specific in mind.

In sum, if the government could explain, in an appropriate setting, how it determined that it had obviated the need for a CIPA Section 4 proceeding, we likely can avoid speculative motion practice, and the parties and this Court may be assured that we can continue to litigate this case fairly and with the level of confidence to which we are entitled.

[snip]

To the extent the Court would like more detailed briefing on these issues prior to the conference, the CISO has provided to cleared defense counsel access to facilities that would allow us to draft a supplemental submission at a higher classification level.

I don’t want to minimize the problem CIPA presents for defendants, nor the kind of prosecutorial dickishness that can roil discovery discussions. But this entire exchange was, in my experience, pretty remarkable. The arguments, for example, are little different from ones Trump is making in the stolen documents case, but McGonigal’s arguments always seemed more targeted than Trump’s, which are a mad splay attempting to review the entire Intelligence Community.

Then it was over.

On June 23, DuCharme doubled down on his certainty there were secrets that would help McGonigal. On July 10, Judge Rearden scheduled a hearing for updates on classified discovery. That same day, the government described making a discovery production four days after DuCharme’s letter, then said it planned to file a response to the letter before the hearing, which it said was scheduled for July 18. Judge Rearden gave them four days to file the response, until July 14. That day, July 14, the day SDNY would otherwise have filed another public letter about classified discovery, McGonigal withdrew his request for a status hearing. A month later McGonigal pled guilty to the one count of conspiracy.

To be sure, the deal was pretty sweet, given that it took the onerous money laundering exposure off the table. But the 50 months is the kind of sentence he might have faced for Foreign Agent charges — anything that stopped short of alleging that McGonigal had shared FBI secrets with Oleg Deripaska, of which, again, there is no hint in any of the charging documents.

Yet SDNY successfully prosecuted the former FBI spymaster for working for Oleg Deripaska without (apparently) sharing anything more than the first notices McGonigal got of the spook ties the Intelligence Community found Oleg Deripaska to have.

 

 

 


DC Circuit: Go Big and [in a Footnote] Go Blassingame!

Note: Our discussion of the decision starts after 10 minutes.

During the entire month we’ve been waiting for a DC Circuit ruling on Trump’s immunity claim, I have argued we’d be better off with an opinion for which SCOTUS was likely to deny cert than a decision in which a — say — Judge Karen Henderson concurrence offered surface area for Justices to claw out review.

Before I explain why there’s a good shot that this opinion was worth the wait, let me review how SCOTUS came to uphold a Judge Chutkan opinion chipping away at Trump’s Executive Privilege claims for January 6. In that case, Trump was trying to prevent the Archives from sharing presidential documents with the January 6 Committee; because he was seeking to prevent something, it was actually easier to make appeals go faster. The appeals were resolved in 74 days:

  • On November 9, 2021, Judge Chutkan rejected Trump’s attempt to enjoin the Archives from sharing his papers
  • On November 30, a DC Circuit panel of three Democratic appointees heard his case; on December 9, the Circuit issued an opinion from Patricia Millet upholding Judge Chutkan
  • On January 22, 2022, with only a dissent from Clarence Thomas, SCOTUS upheld the DC Circuit opinion; Justice Kavanaugh noted that, even if a more stringent standard were applied, Trump’s claim would still fail

This appeal has taken 67 days thus far:

  • On December 1, Judge Chutkan, waiting less than 12 hours after the long-delayed issuance of an opinion in Blassingame holding that former Presidents are not immune from lawsuit when in the role of office-seeker, issued her ruling rejecting Trump’s immunity claim
  • A bipartisan panel — Karen Henderson, Florence Pan, and Michelle Childs — heard Trump’s appeal on January 9
  • The panel issued a strong per curiam opinion on February 6

In recent weeks, I had shown where there seemed to be disagreement on that panel, disagreements that are all resolved in the opinion.

Posture

Let’s start with the last one, what I called posture. Judge Henderson had originally not favored an expedited review. This order forces Trump into an expedited appeals process.

The Clerk is directed to withhold issuance of the mandate through February 12, 2024. If, within that period, Appellant notifies the Clerk in writing that he has filed an application with the Supreme Court for a stay of the mandate pending the filing of a petition for a writ of certiorari, the Clerk is directed to withhold issuance of the mandate pending the Supreme Court’s final disposition of the application. The filing of a petition for rehearing or rehearing en banc will not result in any withholding of the mandate, although the grant of rehearing or rehearing en banc would result in a recall of the mandate if the mandate has already issued.

The only way he can stop Judge Chutkan from issuing opinions on the remaining motions to dismiss filed last fall is if he immediately appeals to SCOTUS for a stay pending appeal, which he has already said he’d done. The only way he can get that stay is if five Justices say they think Trump will succeed on the merits and vote to grant the stay.

Steve Vladeck says that SCOTUS has a lot of options, but the two most likely are to deny the stay or to grant an appeal in this term, committing to an opinion by June.

Jurisdiction

At least by my read in the table, the one reason Pan and Childs couldn’t write their own opinion without Henderson was because Childs was much more cautious about whether the Circuit even had jurisdiction.

Nine pages of the opinion treat that question. It adopts two suggestions from Jack Smith’s prosecutor James Pearce. Most notably, it notes that SCOTUS has repeatedly given [former] Presidents get immediate appeals.

Nor was the question presented in Midland Asphalt anything like the one before us. Procedural rules are worlds different from a former President’s asserted immunity from federal criminal liability. The Supreme Court has repeatedly emphasized that the President is sui generis. In the civil context, the Court has held that the denial of the President’s assertion of absolute immunity is immediately appealable “[i]n light of the special solicitude due to claims alleging a threatened breach of essential Presidential prerogatives under the separation of powers.” Fitzgerald, 457 U.S. at 743. And in United States v. Nixon, the Court waived the typical requirement that the President risk contempt before appealing because it would be “unseemly” to require the President to do so “merely to trigger the procedural mechanism for review of the ruling.” 418 U.S. 683, 691–92 (1974). It would be equally “unseemly” for us to require that former President Trump first be tried in order to secure review of his immunity claim after final judgment.

Trump did not contest jurisdiction here, so it’s unlikely to be something that SCOTUS pursues (and if they did, then it would get bumped back to Chutkan for trial).

Go Big and [in a Footnote] Go Blassingame

Finally, I noted that Judge Henderson seemed to have concerns about the scope of their decision — what she described “floodgates” of follow-on charges. She at least considered the wisdom of limiting this opinion to a former President’s unofficial acts — in this case, defined as those of an office-seeker under Blassingame.

Rather than going Blassingame, though, the panel’s top line holding went Big.

The operative language in this opinion rejects the notion of Presidential immunity categorically as a violation of separation of powers.

At bottom, former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches. Presidential immunity against federal indictment would mean that, as to the President, the Congress could not legislate, the Executive could not prosecute and the Judiciary could not review. We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter. Careful evaluation of these concerns leads us to conclude that there is no functional justification for immunizing former Presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the Indictment. In so holding, we act, “not in derogation of the separation of powers, but to maintain their proper balance.” See Fitzgerald, 457 U.S. at 754. [my emphasis]

Even in that sweeping language, though, the opinion addresses the question of presidential immunity generally and specifically, as to the charges in the indictment.

The import of this move in resolving any disagreement on the panel is more clear elsewhere.

Perhaps most importantly, footnote 14, does something that Judge Chutkan also did. It said that because they reject the notion of categorical immunity, they don’t have to review whether the alleged crimes are official acts.

14 Because we conclude that former President Trump is not entitled to categorical immunity from criminal liability for assertedly “official” acts, it is unnecessary to explore whether executive immunity, if it applied here, would encompass his expansive definition of “official acts.” Nevertheless, we observe that his position appears to conflict with our recent decision in Blassingame, 87 F.4th at 1. According to the former President, any actions he took in his role as President should be considered “official,” including all the conduct alleged in the Indictment. Appellant’s Br. 41–42. But in Blassingame, taking the plaintiff’s allegations as true, we held that a President’s “actions constituting re-election campaign activity” are not “official” and can form the basis for civil liability. 87 F.4th at 17. In other words, if a President who is running for re-election acts “as office-seeker, not office-holder,” he is not immune even from civil suits. Id. at 4 (emphasis in original). Because the President has no official role in the certification of the Electoral College vote, much of the misconduct alleged in the Indictment reasonably can be viewed as that of an office-seeker — including allegedly organizing alternative slates of electors and attempting to pressure the Vice President and Members of the Congress to accept those electors in the certification proceeding. It is thus doubtful that “all five types of conduct alleged in the indictment constitute official acts.” Appellant’s Br. 42. [my empahsis]

But they say if they did have to review whether the indictment charged Trump for official acts, the fact that so many of the alleged acts in the indictment pertain to Trump’s role as an office-seeker, and because Presidents have no role in election certifications, the indictment would survive that more particular review anyway.

This is the kind of out that Justice Kavanaugh took on a related issue, whether the interests of Congress in reviewing an attack on the election certification preempted any Executive Privilege claims.

That is, both the District and Circuit have already said that, if they were asked to consider whether this indictment withstands an immunity claim, it substantially would.

I have no idea what SCOTUS will do. But by producing a unanimous opinion with little surface area for Justices to grab hold, Judges Henderson, Pan, and Childs may have ended up producing the most expeditious result.


DC Circuit Upholds Judge Chutkan’s Immunity Decision

The opinion is here. They’ve also issued the mandate on a tight clock.

Today, we affirm the denial. For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.

They did use collateral order doctrine to establish jurisdiction.

Although both parties agree that the Court has jurisdiction over former President Trump’s appeal, amicus curiae American Oversight raises a threshold question about our collateral-order jurisdiction. In every case, “we must assure ourselves of our jurisdiction.” In re Brewer, 863 F.3d 861, 868 (D.C. Cir. 2017). Under 28 U.S.C. § 1291, which grants us jurisdiction over “final decisions of the district courts,” id., “we ordinarily do not have jurisdiction to hear a defendant’s appeal in a criminal case prior to conviction and sentencing,” United States v. Andrews, 146 F.3d 933, 936 (D.C. Cir. 1998). The collateral-order doctrine, however, treats as final and thus allows us to exercise appellate jurisdiction over “a small class of [interlocutory] decisions that conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and are effectively unreviewable on appeal from a final judgment.” Citizens for Resp. & Ethics in Wash. v. Dep’t of Homeland Sec., 532 F.3d 860, 864 (D.C. Cir. 2008) (cleaned up). The district court’s denial of former President Trump’s immunity defense unquestionably satisfies the first two requirements and thus we focus our analysis on the third: whether the denial of immunity is effectively unreviewable on appeal from a final judgment.

Here’s how the opinion dealt with Trump’s Marbury argument. This language would have come from Judge Henderson (the opinion clearly has a lot of input from all three).

We therefore conclude that Article III courts may hear the charges alleged in the Indictment under the separation of powers doctrine, as explained in Marbury and its progeny and applied in the analogous contexts of legislative and judicial immunity. The Indictment charges that former President Trump violated criminal laws of general applicability. Acting against laws enacted by the Congress, he exercised power that was at its “lowest ebb.” Youngstown, 343 U.S. at 637 (Jackson, J., concurring). Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.

This part of the ruling could be seen as limiting it to Blassingame.

We note at the outset that our analysis is specific to the case before us, in which a former President has been indicted on federal criminal charges arising from his alleged conspiracy to overturn federal election results and unlawfully overstay his Presidential term.8

8 We do not address policy considerations implicated in the prosecution of a sitting President or in a state prosecution of a President, sitting or former.

The opinion straight up says Trump’s Take Care Clause argument is bunk.

The President, of course, also has a duty under the Take Care Clause to faithfully enforce the laws. This duty encompasses following the legal procedures for determining election results and ensuring that executive power vests in the new President at the constitutionally appointed time. To the extent former President Trump maintains that the post-2020 election litigation that his campaign and supporters unsuccessfully pursued implemented his Take Care duty, he is in error. See infra n.14. Former President Trump’s alleged conduct conflicts with his constitutional mandate to enforce the laws governing the process of electing the new President.

This is an argument that I thought Jack Smith didn’t push enough.

Former President Trump’s alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government. He allegedly injected himself into a process in which the President has no role — the counting and certifying of the Electoral College votes — thereby undermining constitutionally established procedures and the will of the Congress. To immunize former President Trump’s actions would “further . . . aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress.” Youngstown, 343 U.S. at 654 (Jackson, J., concurring) (footnote omitted). As Justice Jackson warned:

Executive power has the advantage of concentration in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear. No other personality in public life can begin to compete with him in access to the public mind through modern methods of communications. By his prestige as head of state and his influence upon public opinion he exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness.

Id. at 653–54 (Jackson, J., concurring).

We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results. Nor can we sanction his apparent contention that the Executive has carte blan che to violate the rights of individual citizens to vote and to have their votes count.

* * *

At bottom, former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches. Presidential immunity against federal indictment would mean that, as to the President, the Congress could not legislate, the Executive could not prosecute and the Judiciary could not review. We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter. Careful evaluation of these concerns leads us to conclude that there is no functional justification for immunizing former Presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the Indictment. In so holding, we act, “not in derogation of the separation of powers, but to maintain their proper balance.” See Fitzgerald, 457 U.S. at 754.

This section, turning Trump’s impeachment argument on its head, is the fruit of Florence Pan’s work in the hearing, surgically narrowing and then narrowing still further the issues.

Former President Trump agrees that the Impeachment Judgment Clause contemplates and permits the prosecution of a former President on criminal charges — he argues only that such a former President first must be impeached by the House and “convicted” by the Senate. Appellant’s Br. 12–14, 31. In other words, he asserts that, under the Clause, a former President enjoys immunity for any criminal acts committed while in office unless he is first impeached and convicted by the Congress. Under that theory, he claims that he is immune from prosecution because he was impeached and acquitted. By taking that position, former President Trump potentially narrows the parties’ dispute to whether he may face criminal charges in this case consistent with the Impeachment Judgment Clause: If the Clause requires an impeachment conviction first, he may not be prosecuted; but if it contains no such requirement, the Clause presents no impediment to his prosecution.

Former President Trump also implicitly concedes that there is no absolute bar to prosecuting assertedly “official” actions. He argues elsewhere in his brief that his impeachment on the charge of inciting insurrection was based on conduct that was the “same and closely related” to the “official acts” charged in the Indictment. Appellant’s Br. 46 (“President Trump was impeached and acquitted by the Senate for the same and closely related conduct to that alleged in the indictment.” (emphasis omitted)); id. at 42 (“[A]ll five types of conduct alleged in the indictment constitute official acts.”). And he agrees that if he had been convicted by the Senate in that impeachment trial, he would not be immune from prosecution for the “official acts” at issue here. See id. at 31. Thus, he concedes that a President can be prosecuted for broadly defined “official acts,” such as the ones alleged in the Indictment, under some circumstances, i.e., following an impeachment conviction. [my emphasis]

They note that Trump’s argument about Alexander Hamilton is followed immediately by Hamilton saying that Presidents must be unlike Kings.

To counter the historical evidence that explains the purpose of the Impeachment Judgment Clause, former President Trump turns to one sentence written by Alexander Hamilton in the Federalist 69: “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” The Federalist No. 69, at 337 (Alexander Hamilton) (Coventry House Publishing, 2015). He focuses on the word “afterwards” and suggests that a President is not “liable to prosecution and punishment” until “after[]” he has been impeached and convicted by the Senate. See Appellant’s Br. 14–15. But we think the more significant word in Hamilton’s statement is “liable,” which means “subject to.” Liable, 1 John Ash, New and Complete Dictionary of the English Language (1795). Hamilton specifies that a President would be subject to impeachment, trial, conviction and removal from office; and “afterwards” would be subject to prosecution and punishment, without regard to the verdict in the impeachment proceeding. 10 Moreover, in the very next sentence of the same essay, Hamilton stresses that the President must be unlike the “king of Great Britain,” who was “sacred and inviolable.” The Federalist No. 69, at 337–38. It strains credulity that Hamilton would have endorsed a reading of the Impeachment Judgment Clause that shields Presidents from all criminal accountability unless they are first impeached and convicted by the Congress.

The opinion names all the Senators who said they voted against impeachment because Trump was out of office.

Former President Trump’s interpretation also would permit the commission of crimes not readily categorized as impeachable (i.e., as “Treason, Bribery, or other high Crimes and Misdemeanors”) and, if thirty Senators are correct, crimes not discovered until after a President leaves office. See U.S. CONST. art. II, § 4; see also, e.g., 167 CONG. REC. S736 (daily ed. Feb. 13, 2021) (statement of Senate Minority Leader McConnell) (“We have no power to convict and disqualify a former office holder who is now a private citizen.”). 13

13 See also statements of Senators Barrasso, Blunt, Braun, Capito, Cornyn, Cramer, Crapo, Daines, Ernst, Fischer, Grassley, Hoeven, Hyde-Smith, Inhofe, Kennedy, Lankford, Lee, Lummis, Moran, Portman, Risch, Rounds, Rubio, Shelby, Sullivan, Thune, Tillis, Tuberville and Wicker.

Here’s another section on the import of Blassingame. They’re saying this decision is categorical — that is, there’s no need for analysis of whether these were official acts or not. But because Blassingame already ruled they were not, there’s no need to here.

14 Because we conclude that former President Trump is not entitled to categorical immunity from criminal liability for assertedly “official” acts, it is unnecessary to explore whether executive immunity, if it applied here, would encompass his expansive definition of “official acts.” Nevertheless, we observe that his position appears to conflict with our recent decision in Blassingame, 87 F.4th at 1. According to the former President, any actions he took in his role as President should be considered “official,” including all the conduct alleged in the Indictment. Appellant’s Br. 41–42. But in Blassingame, taking the plaintiff’s allegations as true, we held that a President’s “actions constituting re-election campaign activity” are not “official” and can form the basis for civil liability. 87 F.4th at 17. In other words, if a President who is running for re-election acts “as office-seeker, not office-holder,” he is not immune even from civil suits. Id. at 4 (emphasis in original). Because the President has no official role in the certification of the Electoral College vote, much of the misconduct alleged in the Indictment reasonably can be viewed as that of an office-seeker — including allegedly organizing alternative slates of electors and attempting to pressure the Vice President and Members of the Congress to accept those electors in the certification proceeding. It is thus doubtful that “all five types of conduct alleged in the indictment constitute official acts.” Appellant’s Br. 42.

The opinion does rely, in part, on the fact that Jack Smith didn’t charge incitement to insurrection to dismiss Trump’s double jeopardy claim (I had wondered if Smith would add that charge based on the outcome here).

To the extent former President Trump relies on “double jeopardy principles” beyond the text of the Impeachment Judgment Clause, those principles cut against him. The Double Jeopardy Clause provides: “No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. CONST. amend. V. It has been interpreted to prohibit “imposition of multiple criminal punishments for the same offense.” Hudson v. United States, 522 U.S. 93, 99 (1997) (citation omitted). Under precedent interpreting the Double Jeopardy Clause, former President Trump’s impeachment acquittal does not bar his subsequent criminal prosecution for two reasons: (1) An impeachment does not result in criminal punishments; and (2) the Indictment does not charge the same offense as the single count in the Impeachment Resolution.

[snip]

Even if we assume that an impeachment trial is criminal under the Double Jeopardy Clause, the crimes alleged in the Indictment differ from the offense for which President Trump was impeached. In determining whether two charges are the “same” for double-jeopardy purposes, courts apply “the sameelements test” (also known as the “Blockburger test”): If “each offense contains an element not contained in the other,” the offenses are different. United States v. Dixon, 509 U.S. 688, 696 (1993) (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)) (cleaned up). If the charges at issue are not the “same offense” under that test, double jeopardy does not bar prosecution. Id. at 696–97.

Under the Blockburger test, none of the four offenses alleged in the Indictment is the same as the sole offense charged in the article of impeachment. The indicted criminal counts include conspiracy to defraud the United States under 18 U.S.C. § 371; conspiracy to obstruct and obstructing an official proceeding under 18 U.S.C. §§ 1512(c)(2), (k); and conspiracy to deprive one or more individuals of the right to vote under 18 U.S.C. § 241. See Indictment ¶¶ 6, 126, 128, 130. By contrast, the article of impeachment charged former President Trump with incitement of insurrection. See H.R. Res. 24, 117th Cong. (2021). Each of the indicted charges requires proof of an element other than those required for incitement. And the offense of incitement of insurrection requires proof of incitement — an element that is distinct from those associated with each of the crimes of indictment. In other words, the charges are not the same under a straightforward application of the Blockburger test.

[my emphasis]

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Originally Posted @ https://www.emptywheel.net/2020-presidential-election/page/9/