Four Rudy Giuliani-Related Privilege Reviews: DOJ Likely Already Has a Version of Document 4708

As I noted here and here, on Monday, Judge David Carter ordered John Eastman to turn over most documents he had been trying to withhold from the January 6 Committee. That order found that it was likely that Trump and Eastman had conspired to defraud the US. But there was just one document turned over on the basis of crime-fraud exception: a document otherwise privileged under a work product claim that, Judge Carter ruled, could not be withheld because it was sent in the commission of the attempt to obstruct the vote count.

Here’s how Carter described the document:

In this email, a colleague forwards to Dr. Eastman a memo they wrote for one of President Trump’s attorneys.153 The memo sketches a series of events for the days leading up to and following January 6, if Vice President Pence were to delay counting or reject electoral votes. The memo clearly contemplates and plans for litigation: it maps out potential Supreme Court suits and the impact of different judicial outcomes. While this memo was created for both political and litigation purposes, it substantively engages with potential litigation and its consequences for President Trump. The memo likely would have been written substantially differently had the author not expected litigation. The Court therefore finds that this document was created in anticipation of litigation.


The eleventh document is a chain forwarding to Dr. Eastman a draft memo written for President Trump’s attorney Rudy Giuliani.274 The memo recommended that Vice President Pence reject electors from contested states on January 6. This may have been the first time members of President Trump’s team transformed a legal interpretation of the Electoral Count Act into a day-by-day plan of action. The draft memo pushed a strategy that knowingly violated the Electoral Count Act, and Dr. Eastman’s later memos closely track its analysis and proposal. The memo is both intimately related to and clearly advanced the plan to obstruct the Joint Session of Congress on January 6, 2021. Because the memo likely furthered the crimes of obstruction of an official proceeding and conspiracy to defraud the United States, it is subject to the crime-fraud exception and the Court ORDERS it to be disclosed.

274 4708. [my emphasis]

Carter’s decision and the release of documents has set off the usual wails about how much more proactive the January 6 Committee is than DOJ, replete with statements of fact — almost always people who haven’t done any work to understand what DOJ is really doing — that DOJ hasn’t taken steps to obtain such documents itself.

I’d like to look at four privilege reviews that implicate Rudy Giuliani and show that it is likely DOJ already has this document or at least ones that are related. Those reviews are:

  • Judge David Carter’s review of 111 documents subpoenaed from John Eastman by the January 6 committee
  • The 11-month long privilege review of materials on 16 devices seized from Rudy Giuliani on April 28, 2021
  • Details released about Robert Costello’s advice to Steve Bannon provided in response to a subpoena from the January 6 Committee
  • The known details about subpoenas served on Sidney Powell’s non-profit, Defending the Republic

John Eastman

As explained here, the David Carter opinion describes the judge’s privilege review of just four days of materials (January 4 to January 7, 2021) responsive to the January 6 Committee subpoena to Eastman. Carter went meticulously through seven categories of materials in Eastman’s possession and determined that just ten documents could be withheld under a work product claim and one — document 4708 — had to be turned over under a crime-fraud exception.

Carter ruled the document — an email chain that forwarded a memo written for Rudy to Eastman — was excepted under a crime-fraud exception because, the judge described, it sought to transform Eastman’s Electoral Count Act scheme “into a day-by-day plan of action.” Eastman didn’t write it. Rather, because the document was created for Rudy, Carter treated it along with four others, “created by or for agents of President Trump or his campaign, including attorneys of record in state cases and President Trump’s personal attorney.” [my emphasis]

References to the document explain that Eastman claimed attorney-client privilege over the document (fn 81, 125) and someone wrote “PRIVILEGED AND CONFIDENTIAL” in email text (fn 101).

Carter’s review of the document is particularly valuable for how he dismisses Eastman’s attorney-client privilege claim: In hundreds of pages of briefing, Eastman provided no evidence that its sender was affiliated with the Trump campaign or was covered by Eastman’s own claim to be representing Trump.

Dr. Eastman claims attorney-client privilege over only nine documents: five emails125 and four attachments.126 None of these documents includes Dr. Eastman’s client, President Trump, as a sender or recipient of the email. Instead, all emails are sent from a third party to Dr. Eastman, and two of the emails blind copy (bcc) a close advisor to President Trump.127

Despite having filed nearly a hundred pages of briefing, Dr. Eastman does not mention this third-party email sender anywhere in his briefs; the person is named only in his privilege log entries. Dr. Eastman’s description in the privilege log is conclusory, describing the sender merely as his “co-counsel.”128 Dr. Eastman failed to provide retainer agreements or a sworn declaration that would prove this third party was an attorney or agent for President Trump. The Court also cannot infer the third party’s affiliation with President Trump from his email, which is a generic, [email protected] email address. Dr. Eastman has not met his burden to show that these communications were with an agent of President Trump or the Trump campaign, and as such, these documents do not warrant the protection of the attorney-client privilege.

In other words, there was someone involved in relaying a memo originally written for Rudy to Eastman that Eastman didn’t want to or couldn’t argue was a Trump lawyer. And that’s why this attorney-client privilege claim failed. That’s an important detail because — as we’ll see — Bannon tried something similar.

Rudy Giuliani

Now let’s turn to Rudy’s phones. As I keep explaining, while the known warrants used to seize Rudy’s phones cover his Ukrainian influence peddling and cover a time period from May 1, 2018 through December 31, 2019, SDNY got Judge Paul Oetken to approve a Special Master review that covered the period from January 1, 2018 through the date of seizure, April 28, 2021. Special Master Barbara Jones’ review is only for privilege claims (including Executive privilege and attorney-client at least), not for responsiveness to any subpoena, so the end result of her review will result in turning over all non-privileged content on Rudy’s devices from that 28-month period.

That means if the person who created the memo forwarded as part of document 4708 sent it to Rudy on one of the devices that were seized, then the underlying memo would be included in the Special Master review.

We don’t know how DOJ has prioritized this review. We know only what is in this and earlier reports, which I’ve captured in this table.

Jones did an initial review, covering the entire timeframe (that is, post-dating January 1, 2018) of 7 devices, from which she found 3 documents about which she had some question, but ultimately deemed them privileged and turned over 2,000 other items.

Then, seemingly in parallel, she did a review of Device 1B05 (a cell phone) and 8 other devices. For the 8 devices, her review covered only the period of Rudy’s Ukrainian influence peddling. But for Device 1B05, Jones’ review covered the full 28-month period, meaning it would include any texts or messages sent on or pertaining to January 6.

I next assigned for review the chats and messages that post-dated January 1, 2018 on Device 1B05, which is a cell phone. There were originally 25,481 such items, which later increased to 25,629 after a technical issue involving document attachments was identified. An initial release of non-designated items was made to the Government’s investigative team on November 11, 2021.1

Of the total documents assigned for review, Mr. Giuliani designated 96 items as privileged and/or highly personal. Of those 96 designated items, I agreed that 40 were privileged, Mr. Giuliani’s counsel withdrew the privilege designation over 19, and I found that 37 were not privileged. I shared these determinations with Mr. Giuliani’s counsel, and they indicated that they would not challenge my determination that the 37 items are not privileged. The 40 privileged documents have been withheld from the Government’s investigative team and the remaining 56 were released on January 19, 2022.

1 Additional non-designated items were released on January 19, 2022.

Device 1B05 was the only one for which Jones disputed the original privilege claims made by Rudy and his attorney Robert Costello. Of 40 items, Jones agreed with their privilege claim. Of 19, Costello withdrew the claim. And of 37, Jones told Costello she disagreed, after which Costello decided not to fight her ruling.

While these discussions were going on, Judge Oetken issued a ruling that, if Rudy wanted to challenge Jones’ rulings, they’d have to make their legal arguments (but not the content of the contested communications) public. During the Michael Cohen privilege review, such a decision led Cohen and Trump to drop privilege claims, probably over the crime-fraud excepted hush payment communications, and that may be what happened here.

Whatever happened, we know that, with the exception of 43 items, any January 6-related communications that were on half of the 16 phones seized from Rudy would have been turned over to the FBI for a scope review. To be clear, investigators wouldn’t be able to access those comms unless they got a separate warrant for them, but we would never know (short of an indictment relying on them) if they had.

None of that guarantees that the memo forwarded with Eastman’s document 4708 is in DOJ possession. If the person who wrote it emailed it, it would not necessarily be on the seized devices. (Though if DOJ had a January 6 warrant for Rudy’s phones, they presumably would have obtained one for his email and iCloud as well, as they did with his Ukraine investigation.) If the person delivered it by hand, it would not be on the devices. And it’s possible that Costello made a more compelling argument than Eastman did that the sender was covered by a privilege claim tied to Trump.

Steve Bannon

We don’t know what kind of wild privilege claims Robert Costello was making as part of the privilege review of Rudy’s devices (which started in earnest in September 2021). But we do know what kind of wild privilege claims Robert Costello was making for another of his clients, Steve Bannon, in discussions of how to respond to a subpoena from the January 6 between October 5 and 19, 2021. He provided those details (including two 302s from interviews at which FBI agents were present) in a bid to claim he — Costello — was unfairly targeted as part of DOJ’s investigation of Bannon’s contempt (see this post for details).

In Costello’s interviews, he was all over the map about whether Bannon could invoke Executive Privilege. He said that according to some OLC opinions, Bannon did not have to be a government employee to receive “protections” under EP, and that “TRUMP had the right to claim it for BANNON.” He said that 10 of the 17 items on the Jan 6 subpoena were covered by EP. He admitted EP did not cover a request for comms involving Scott Perry and “it would take a ‘creative argument’ to apply Executive Privilege to that particular item.” He admitted, too, that comms with the Proud Boys wouldn’t be covered by EP if such communications existed.  He said that EP claims should be worked out between Trump and the Committee. He said he had told Bannon that Bannon could not invoke EP because “that authority belongs to the President.”

Ultimately, though, Costello admitted that Trump’s attorney Justin Clark never reviewed anything Bannon might have claimed privilege over and refused several requests to contact the Committee himself about EP.

COSTELLO did not provide any documents to attorneys representing former President Trump for review to determine if Executive Privilege covered the documents. At the time, COSTELLO did not know what attorneys were representing others who had received Select Committee subpoenas.

COSTELLO asked CLARK to reach out to the Select Committee and to directly express to the Select Committee what COSTELLO and BANNON were confused about in regards to Executive Privilege. COSTELLO estimated he requested this of CLARK approximately two or three times; however, CLARK did not reach out to the Select Committee. COSTELLO did not have prior knowledge of the lawsuit of former President TRUMP.


CLARK would not identify for COSTELLO what would be covered under Executive Privilege and that CLARK left that determination up to those who had received the Select Committee subpoena. CLARK also refused to reach out to the Select Committee on behalf of COSTELLO or BANNON.


COSTELLO did not provide or offer any documents to attorneys representing former President TRUMP to review for Executive Privilege.

In a follow-up, Costello effectively admitted there was no concrete record that Trump had invoked EP.

Costello stated that Justin Clark (Clark) was trying to be intentionally vague; however, Costello was clear former President Donald Trump (President Trump) asserted executive privilege with regard to Bannon.

When DOJ asked Costello for a letter indicating that Clark had invoked EP for Bannon, he had nothing specific.

Then there was the matter of Bannon’s podcasts. Costello ceded they weren’t covered by privilege, but only because they were public (!!!!), and appears to have just assumed the Committee would go get them on their own.

With regards to responding to the Select Committee’s request for documents, COSTELLO planned to send a link to the website hosting all of BANNON’s publicly accessibly podcasts.


The podcasts requested could be obtained by the Select Committee off the internet, and since they were in the public domain, the podcasts also were not covered by Executive Privilege.


COSTELLO admitted he did not have a good answer as to why he didn’t disclose to the Select Committee that the podcasts were in the public domain and BANNON was not required to respond to that particular item. COSTELLO believed the particular requests regarding the podcasts was just a “bad request” by the Select Committee.

The most telling piece of advice given by the lawyer Bannon shares with Rudy — one that goes to the heart of what Costello might have done in discussions taking place at the same time about privilege with SDNY — was that Bannon, who is not a lawyer, could claim attorney-client privilege over items requested in item 17 of the subpoena, which asked for,

Any communications with Rudolph Giuliani, John Eastman, Michael Flynn, Jenna Ellis, or Sydney Powell about any of the foregoing topics.

Costello claimed these such communications, including those with Mike Flynn or Sidney Powell, would be covered by attorney-client or work product privilege.

COSTELLO believed that the request listed as number 17 involved information over which BANNON could assert attorney-client privilege given it included a request for communications between BANNON and RUDOLPH GIULIANI, JENNA ELLIS, and other attorneys who were working for former President Trump.


COSTELLO believed item 17 was covered by attorney-client privilege or by attorney work product protections. Even though MICHAEL FLYNN was not an attorney, he was present during attorney-client-protected discussions. Those particular attorneys represented former President TRUMP and CLARK informed COSTELLO not to respond to item 17.

There’s so much crazy-train about this last bit. After stating over and over that Clark refused to invoke EP, Costello then admitted that Clark wanted Bannon to withhold communications involving Rudy, Eastman, Powell, and Mike Flynn. Costello admitted Flynn (like Bannon) was not a lawyer, but was still prepared to claim attorney work product over comms with him anyway. But the thing I can’t get enough of is that Rudy’s lawyer Robert Costello was claiming that Sidney Powell — who, in a written statement issued on November 22, 2020, Trump’s lawyer Rudy Giuliani made very clear did not represent Donald Trump — represented Donald Trump.

Still, all this crazy train amounts to non-lawyer Bannon, advised by the lawyer he shares with Rudy, making the same claim that lawyer John Eastman had made regarding “war” planning leading up to January 6; that such documents were covered by work product privilege. That’s the same claim that Judge Carter just applied a crime-fraud exception for.

I’m guessing Costello attempted to make similar claims with Barbara Jones in SDNY and I’m guessing that Jones pointed out that Bannon and Flynn aren’t lawyers and Rudy was quite clear that Powell was not Trump’s lawyer. In other words, I think it likely that some of the claims Costello withdrew are similar to those that Eastman failed with. If that’s right, it increases the chance Document 4708 would be turned over to DOJ.

Sidney Powell

And then there’s the Kraken lady.

We don’t know the full scope of the grand jury investigation into Powell, aside from the fact that Molly Gaston, who is supervising the Bannon prosecution, is also involved in it (which means she’d have visibility on the overlap between the two, and would know that Trump’s lawyer tried to withhold comms involving Powell without invoking privilege). The subpoena requests, at least, cover the finances of her Defending the Republic “non-profit.”

The federal probe, which has not been previously reported, is examining the finances of Defending the Republic, an organization founded by Powell to fund her “Kraken” lawsuits to overturn the 2020 election, the sources said.According to two of the people familiar with the matter, a grand jury was empaneled, and subpoenas and documents requests have gone out to multiple individuals as recently as September.

The investigation, then, would cover activities that are tangential to the January 6 subpoenas to Bannon and Eastman.

But the fact that there’s a grand jury investigation into Powell makes it exceedingly likely DOJ got a warrant for her emails.

She has a valid privilege claim covering communications with Mike Flynn for some of this period. But thanks to Rudy’s public statement, she has no privilege covering her actions for Trump.

Chances are pretty good she received a copy of the memo for Rudy too (if the memo wasn’t written by someone with closer ties to Powell than Rudy).

I think it’s likely that DOJ has multiple copies of document 4708, probably via Rudy, Bannon, and Powell, if not Eastman himself (getting it from Chapman U would always have been easy to do with a gag, and would be still easier now).

What’s clear, though, is that the lawyer that Rudy and Bannon share is making privilege claims every bit as absurd as the ones Carter just rejected, and with Bannon, there’s no question about privilege claims.

75 replies
  1. Peterr says:

    From Carter’s opinion, quoted above:

    Dr. Eastman claims attorney-client privilege over only nine documents: five emails125 and four attachments.126 None of these documents includes Dr. Eastman’s client, President Trump, as a sender or recipient of the email. Instead, all emails are sent from a third party to Dr. Eastman, and two of the emails blind copy (bcc) a close advisor to President Trump.127

    That “bcc” is a reason why the DOJ and J6 committee might want access to emails from the original senders, rather than simply work from a recipient’s copy. Those at the center of a conspiracy likely used bcc to keep sub rosa actors appraised of above-board information.

    If you subpoena emails for Person A from their service provider, and you have some interesting emails from Person B to a group of people including Person A, it would be very interesting to subpoena the same emails from Person B to be able to compare the recipient list visible to Person A on his/her copy with the list of those to whom B sent the email, both visible and bcc.

    • WilliamOckham says:

      I think it’s even more interesting than that. That paragraph has been bugging me since I read the decision. If an email is from a third party to Eastman there shouldn’t be anyway to tell who was bcc’ed unless it’s an email chain and the bcc’ed person did a Reply All to the originator and Eastman. Very curious.

      • viget says:

        Or if the bcc recipient turned over the email to the court (or more likely the J6 Cmte) separate from Eastman.

        “Close Advisor?”. Mark Meadows perhaps?

        Steve Bannon also comes to mind. Wonder if J6 got any of those docs that Costello had to drop privilege claims on….

      • Buleriando says:

        Yes, jumped out at me, very curious. The “blind” in bcc means that, unless the sending mail program is buggy, there will be absolutely no indication that there even were bcc recipients in the mails Eastman received – only the bcc recipients themselves would know they were copied. If someone who was not on the recipient list did a Reply All that would suggest they were a bcc recipient, but it’s not proof – there are other ways someone might have received the mail. And the opinion unequivocally states there were bcc recipients.

        It seems to me the only way that would be certain is if Judge Carter has seen copies of the mails from either the original sender or one of the bcc recipients, i.e. not Eastman.

      • WilliamOckham says:

        I should have read the footnotes more closely. The bcc’ed files are duplicates of other files. So, the person who was BCC’ed must have done the stupid Reply All thing. Which is why you never BCC someone. Just send the email and then go to your sent items and forward that email to the person you would have bcc’ed. That way they can’t blow your cover to the Feds.

    • timbo says:

      Good catch. Yeah, investigators should want to see the recipient lists from everyone’s email account…

    • RFC says:

      You can send an email to someone without including their address in the text of the email, including the bcc line. You can also fake recipients in the body of the email (i.e., include addresses in the cc line who are not sent the email). The only way to definitively find out who an email was sent to is to look at the logs of the outbound and inbound email servers.

  2. Njrun says:

    Marcy, I respect what you do and your knowledge of all these legal cases. I covered courts for five years for a newspaper in the early 1990s, so I got to understand procedures and evidentiary standards and motions and why things move slowly.

    That said, I think your tone dunking on so many ther learned people on Twitter is a bit strong. I hope all the Garland doubters are on day proved wrong. But expecting indictments and punishment for Trump and his cronies is a never-ending game.

    Think of all the identifiable crimes we’ve heard about over the years, starting with 2016 election interference, the corrupt inauguration fund, Jared and the Russian backchannel, Qatar blockade, Mueller report identifying so many, many crimes, Rudy, Parnas, Prince, Bannon, Ross, Gaetz, I mean I don’t have time to list all the people who have committed crimes in public and not a single one of any import has been held legally accountable.

    I really hope one day we can laugh with you about how right you are, but until it happens I would be humble about the possibility because one day the odds are we’ll find out decisions fall more in line with Alvin Bragg than what we all want and justice would demand.

    • klynn says:

      Currently, Marcy is the ONLY push back voice out there. Until others really read the documents available, Marcy, I hope, continues to be a voice of accountability. It is not appropriate to drop in on someone’s blog and hand slap.

      • Njrun says:

        Hand slap? I think if anyone takes offense at my polite comment, I think they need thicker skin.

          • Njrun says:

            I’ve spent 38 years as a public figure, being criticized is part of the deal. Although my comment here is barely criticism. One of the weird things about this site is the associates who take every comment so personally and respond with such venom. Man, we’re on the same side.

            • Krisy Gosney says:

              The be-nice-Marcy thing has been done, re-done and over-done. A person’s feelings, and the feelings they think are facts, about what Trump and Co has gotten away with is a separate thing to how Dr. Marcy expresses herself. Apples and eggplant. Baseballs and cottage cheese.

            • bmaz says:

              “Associates”? Seriously? No, with that kind of BS, we are not “on the same side”. Good on you for announcing your true colors though. If you do not like it here, feel free to find the proverbial door.

    • Eureka says:

      “Continue to be unfailingly polite about your work being disregarded in favor of distress-clicks reifying the exact problems that caused us to be in this place.”

      Also — fact-check — nowhere has she maintained that Trump _will_ be held accountable.

      • Njrun says:

        No, but it is certainly implied. If Trump and associates aren’t held accountable, her comments make no sense and the naysayers are right.

        As I said, I sincerely hope she is right, but the point is that there’s been a lot of reasons over the years for this pessimism and until (if) the indictments actually happen I don’t think pessimism is unreasonable.

        • BobCon says:

          She has repeatedly laid out explicit difficulties in making the case move up the ladder, in terms of what tangled rulings conservative judges may make, difficulties in the law, roadblocks set up by Barr while he was in office, and difficulties in getting past refusals of key players to testify.

          What she has been pushing back against over and over is the idea that this is an easy case.

          The fundamental complaint of a huge raft of people is that this is an easy case and the barrier is Garland refusing to move for mumbled reasons.

          There is a second set who argue that it’s an impossible case for mumbled reasons about Trump always winning.

          Both are arguing on feelings and dodging evidence of anything in the middle.

        • civil says:

          Implied by what? If Trump and associates aren’t prosecuted, that doesn’t imply that the “DOJ hasn’t taken steps to obtain such documents itself,” as it’s possible for the DOJ to have obtained the documents but ultimately decide that they still don’t have sufficient evidence to prove a crime beyond a reasonable doubt. I certainly hope that they do obtain sufficient evidence to indict and convict, but my wish does not make it so, and unless they indict and present a case, we’re not going to know much about what documents they’ve obtained.

        • Eureka says:

          You keep repeating something to this effect where you put words in her mouth with your IF-THENS like you’re gassing a strawman fire here. In the process you’re recapitulating what she and everyone who cares about the truth decries.

          “If Trump and associates aren’t held accountable, [THEN] her comments make no sense and the naysayers are right. ”

          No, no, nope. Her analyses are about various evidences of DOJ investigating Trump/his role (close associates) and or investigating and structuring 1/6 cases so as to be able to get to or incorporate Trump.

          Plenty of others here have taken the time to address these points in greater detail, most specially the author herself.

          Surely in these twitter scuffs you’ve observed, you’ve also read Marcy Wheeler’s work?

    • Stilgar says:

      Lol. Marcy has never promised anything with respects to indictments. She just giving facts and telling us where they MAY lead. Any doubts you have are your own problem. Marcy’s writing may get your hopes up but that’s not her fault it’s because you and all us are listening to a bunch of pundits throwing heaps of doubt on everything when they haven’t done the work.

      • Njrun says:

        People are complaining that illegal acts won’t be prosecuted. If Trump and his associates are not charged, then the complainers will be right.

        Yes, I know these kind of crimes are hard to prosecute. It’s hard to convict people who are “respectable.” 30 years ago I covered trials of racist state troopers in NJ that planted drugs on black motorists who complained when they were stopped. The former superintendent of the state police testified as character witness for the defense. Every trooper was acquitted by juries.

        The point is that publicly available information has shown hundreds of crimes from these clowns. If the DOJ decides to avoid charges because a trial will be difficult, that’s the argument made by Garland’s critics that he’s not doing his job.

            • Eureka says:

              I was going to add a warning for further incoming, I caught some MSNBC earlier (Joy Reid & guests in particular) and they were very Garland is doing nothing./etc

              Seemed like some of Chris Hayes was taking that tone as well but I wasn’t watching closely.

              At the same time I hate adding to this thread as some may also recall than many of Njrun’s visits have gone this way — giant trees of … comments ? going anywhere. [So to Njrun, wherever it was that you said this, maybe it’s not the “associates” but you, too?]

              • Eureka says:

                They were alarmed by Monaco’s presser [IIRC the source they spoke on], specifically something she said about going after the funders and organizers (“but that’s not Trump” — etc.).

        • john paul jones says:

          “People are complaining that illegal acts won’t be prosecuted. If Trump and his associates are not charged, then the complainers will be right.”

          Unassailable logic. But what makes you think the situation is binary? As Dr Wheeler has many times pointed out, this is all still a work in progress. So far, her prognostications have proven spot on.

          And even if the “tone” was different, it wouldn’t change anything. Wait – are you suggesting a female reporter should be less “hysterical”? Maybe you should police your own tone a bit.

          “If the DOJ decides to avoid charges because a trial will be difficult, that’s the argument made by Garland’s critics that he’s not doing his job.”

          Which basically just repeats your intro. Consider editing.

    • civil says:

      Seems to me that by “statements of fact — almost always people who haven’t done any work to understand what DOJ is really doing — that DOJ hasn’t taken steps to obtain such documents itself,” she’s referring to statements presented by these people as fact, when they aren’t actually statements of fact. They’re either conjectures (statements whose truth-value isn’t yet known) or false, and if the people making these claims carried out detailed analyses of the primary documents, they’d do a better job determining which of their T/F claims are known to be true, which are known to be false, and which remain conjecture, and they’d hopefully refrain from presenting conjectures or false statements as if they were statements of fact.

    • John Colvin says:

      “Dunking on so many [o]ther learned people on Twitter” – this is a perfect description of what Dr. Wheeler does. Sadly, many of the so-called “learned people on Twitter” have no game and don’t bother trying to connect dots (or even learn from those who do). Dr. Wheeler is the Saint Peter’s Peacock of the national security/political crimes press, a worthy addition to the Elite (Eight).

    • OldTulsaDude says:

      The government tried John Gotti 3 times without getting a conviction. How much harder is it to prosecute and convict a president?

      • obsessed says:

        Gotti was able to (allegedly) murder and intimidate witnesses in ways that I think Trump would have trouble pulling off.

    • earlofhuntingdon says:

      Policing Marcy’s tone? It’s as if you were focusing on the toxic masculinity of a man-slap instead of Ukraine, Rupert Murdoch and his puppets, and Donald Trump asking Vlad the Impaler to do him a favor, though. Do better.

    • rosalind says:

      if you are on twitter, the twitter exchange marcy has had today with benjamin wittes of lawfareblog is example #1 of why marcy does what she’s currently forced to do, what you term calling out the “learned people”. marcy got benjamin to constructively engage on the actual fact record, and one result of their back and forth is benjamin inviting marcy onto his show to discuss further.

      to those knocking marcy in his feed, he replied: “emptywheel has the same formal credentials as I do. I think she’s yelling at me wrongly right now, as she has occasionally done in the past, but she has been right about a lot of things. And she has also courageous. She gets to hate on me when she wants to.”

      • bmaz says:

        I get along with Ben fairly well, and long mostly have. While they do occupy different spaces, at least nominally, I can guarantee Ben respects the hell out of Marcy.

    • Rayne says:

      You’re entitled to your opinion because like assholes everyone has one. But tone policing won’t fly here. Knock it off.

      Secondly, Marcy’s been at this for more than a decade, over which time both journalists and TV attorneys alike have proven they are not doing the work necessary to keep this republic. The fact that they’ve not done the work going back at least as far as the mid-1990s led us to not holding people accountable for 2016.

      Think about it: if they’d done the work necessary, Donald Trump wouldn’t have been a viable candidate in 2015. He should never have made it into the primary.

      And now you expect Marcy to single-handedly remedy our democracy’s crisis with her work calling out both the criminals and the enablers in media at the same time, WHILE NOT BEING A BIT TOO STRONG ABOUT IT.

      • blueedredcounty says:

        I want to give this Rayne response one thousand thumbs-up!

        I love this key point – it says it all: “He should never have made it into the primary.”

      • Rugger9 says:

        Completely agree with you on this one, and for proof look no further than Mulvaney being hired by CBS because they wanted “access” according to the co-president (i.e. not an anonymous ‘insider’). The courtier press needs to re-learn what their real job is.

        • BobCon says:

          People inside CBS are really angry at news chief Neeraj Khemlani. He’s been the subject of HR complaints about bullying earlier in the year and they are paying a lightly regarded consulting firm run by Khemlani’s brother to advise Khemlani on layoffs, which is an obvious conflict. The head of the CBS London bureau quit recently after Khemlani refused to spend to held get Afghan contractors out of the country.

          Khemlani has reason to think he can keep operating under the radar, though. Yesterday’s Washington Post article naming him was the first major outlet touching on any of his problems since he took over CBS News.

          The NY Times, unsurprisingly, has given his problems no coverage, despite seeing fit to give him extensive ink a few years ago on something they considered far more important — his decision to put two minute Popeye cartoons on Youtube.

          Glad to see more evidence of where the Times has its priorities.

        • Rayne says:

          I could understand improving access if in November 2022 after the election it became clear they needed to improve relations with the GOP. But hiring that scumbag Mulvaney now skews coverage ahead of the election conveniently shaping its outcome.

          As if CBS needed more access to the GOP than it has had until now, given its history under Sumner and Shari Redstone.

    • emptywheel says:

      Thanks for sharing. It is mighty bold of you to come in here and demand that I go easy on people who BRAG about knowing nothing about the evidence.

      • viget says:

        It ties in Flynn as well of course. In addition, Raiklin is thought to have direct ties to Russian officials.

  3. viget says:


    Odds that the third party is none other than Ivan Raiklin, who is himself an attorney and former Green Beret with close ties to Flynn?

    He was making the rounds on ultra-right podcasts in late December 2020 promoting “the Pence Card” plan which sounded awfully similar to Eastman’s memo.

    • harpie says:

      I agree with you, and MARCY thinks you’re onto something as well. [See her comment above] Here’s a detailed THREAD about RAIKLIN:
      6:33 PM · Sep 25, 2021

      THREAD: Before it became the “Eastman memo,” the plan to overthrow our democracy was known as Ivan Raiklin’s “Pence Card.” Raiklin–lawyer, Flynn Org operative, and former Green Beret–designed a plan full of such contingencies and recruited GOP members to adopt the plan. /1 [VIDEO] [Much more here]

      One of the tweets in this thread links to this 12/23/20 tweet:
      7:48 PM · Dec 23, 2020

      Trump just RT’d a bizarre “memo” calling on VP Pence to reject certain Biden slates of electors on Dec. 6 [J6].

      Setting aside the kooky details here…big takeaway is that Trump is now publicly pressuring Pence to conspire in his bid to overturn the election [screenshot of TRUMP’s retweet of RAIKLIN’s 12/23/20 tweet. RAIKLIN calls himself: Ivan #PenceCard Raiklin]

    • harpie says:

      On 12/18/20 TRUMP RT’s RAIKLIN as he advocates
      replacing MCCONNELL with TUBERVILLE: [scroll down]
      [I have a link for the image, but not sure I should post it here…?]

      TRUMP RT: Dec 18th 2020 – 7:28:14 AM EST RT @Raiklin:

      Ivan E. Raiklin (Former Green Beret Commander)]
      Hey Coach @ttuberville, #WeThePeople need you to get on the field and lead in the Senate, @Senatemajldr just walked off the field in the middle of the 3rd Quarter and quit. Take Charge! We have your back!
      2:08 AM Dec 18, 2020 [Time zone?]

  4. gmoke says:

    “Crazy train” or “insanus agmen” is now an official legal term, isn’t it? If not, it will be when Rudy’s process through the Courts is finished.

    • paulumba says:

      Sorry about the Monty Python reference! As I yank on your ear, I demand in my best imitation of John Cleese,
      “‘Agmen’, what is the second principal part?”
      You (skittishly): “agminis.”
      I: “what declension is it?”
      You: “Um um, third declension.?”
      I: “Just like ‘nomen, nominis.’ What gender does ‘nomen’ have?”
      You: “Er Um Um neuter.”
      I: “‘Insanus’ what are the principal parts?”
      You: “Ah, um, um, ‘insanus, insana, insanum'”
      (perhaps pulling your ear up higher) I: “And which principal part do you use when modifying neuter nouns?”
      You: “Third principal part!.”
      I: “And so it should be ‘agmen’?”
      You: “Ah, ah, ah, ‘agmen insanum’.”
      I: “Very well, now write it 100 times and don’t do it again!”

  5. BobCon says:

    “on Monday, Judge David Carter ordered John Eastman to turn over most documents he had been trying to withhold from the January 6 Committee.”

    The 1/6 Committee has asked for Eastman’s emails from Nov. 3 2020 through Jan. 20 2021, and Carter’s ruling says he ordered the parties to “begin” with Jan. 4-7 2021.

    So obviously Eastman is probably hoping to fight off a lot more, and I’m sure the Committee still wants to examine the broader range.

    The news of his ruling has swamped my search results — does anyone know what is going on with the broader demand? Does Carter’s ruling affect anything?

    I assume there is a strong argument that if evidence turned up in just a search of four days of emails then there is good reason to continue reviewing what the Committee requested, but I don’t know if that’s correct.

    I also don’t know if this has implications as far as what DOJ may have obtained from others besides Eastman, or if there may be grounds for expanding other efforts to get evidence.

    • civil says:

      Here the docket: Entry #50 is a relevant order from Judge Carter about the general production schedule, privilege log, and time limits for challenging privilege/responding to challenges under seal. Entry #63 is an update ordering “that Dr. Eastman first review documents between January 4, 2021, and January 7, 2021, and then resume reviewing the documents in chronological order.” So the review continues, but there’s not much public info about it. FWIW, there are various tools that can help to narrow search results when you’re getting swamped. For example, you can date-limit searches to a specified range (e.g., excluding recent results), exclude results with a specific term, and/or limit searches to a specific domain.

      • BobCon says:

        Thanks. I’d hope that Judge Carter has decided that Eastman deserves a reasonable amount of time to comply with the rest of the time in question but gets no benefit of the doubt beyond that. I guess we’ll see.

        The trouble I have with a lot of limiting searches is a lot of sites seem to be making trivial changes to pages to keep them supposedly updated recently, and Google has gotten much worse in terms of trying to guess what you really want. Even putting seach terms in quotes is no longer a guarantee that they will limit searches to that phrase. I’m not sure what they think they’re doing.

        • Keith says:

          FYI, there was a recent change to the production schedule that happened. In Entry #212 on March 14, Eastman complained that the 1500 documents per day pace was too hard to keep up with while also being a full time right wing troll, er, law professor.

          In #222, the judge granted a slight reprieve to 1000 documents per day, which should wrap up around April 21st per Eastman’s estimation in his request for extra time.

          Obviously the fact that Eastman asked for extra time is not going to win him any favors with the judge if these pending privilege claims end up being anywhere near as overbroad and frivolous as many of the ones he made in the initial Jan 4 – Jan 7 batch that just got ruled on.

          [Welcome to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Keith.” Thanks. /~Rayne]

          • BobCon says:

            Thanks that’s really interesting.

            I think that hints at how superficial of a grasp a lot of reporters have on the issues.

            If Carter has this reaction for an order regarding just four days, what do they think it means for the rest of what Eastman has written?

            The press is suffering from a persistent problem of framing 1/6 revelations as if every piece of evidence is potentially the end of it. They’ve got to get out of that mindset.

  6. DrDoom says:

    IANAL. I have a simple-minded question about the scope of privilege. I would be grateful for a response. Lawyers frequently hire 3rd parties to assist with their work, having been so engaged myself on several occasions. What are the rules concerning the privilege status of communications between the lawyers and those 3rd parties, the 3rd parties among themselves with regard to a single client, or (although it strikes me that it should not ever be done) between the client and the 3rd parties? Do these rules differ according to the varying bases of privilege? Might the GOPpers resort to an argument along these lines to support outstanding privilege claims? Thank you.

    • earlofhuntingdon says:

      The short answer is that those employed or hired by a lawyer in preparing work product – an accountant or investigator, for example – are covered by privilege, and bound by its rules. That is, they can vitiate the privilege if they disclose information to others not so bound.

      • DrDoom says:

        Thank you. Are they allowed to discuss among themselves? Must the lawyer from whom the privilege derives be present if they are?

        • bmaz says:

          Internally, yes. For instance my firm had our own in house private investigator, process server, graphic artist and court reporters. They did outside work for others too, but on our cases they were us and well within our umbrella of privilege.

Comments are closed.