Crime in the Era of Encrypted Apps: The Relationship between the DOJ and January 6 Investigations into Fake Electors

Yesterday, DOJ took a slew of overt steps in their investigation into the fake electors:

  • WaPo: Law enforcement activity targeting GA lawyer Brad Carver and Trump staffer Thomas Lane, subpoenas for GA GOP Chair David Shafer and Michigan fake electors
  • NYT: Subpoenas to Trump campaign aide in MI, Shawn Flynn, as well as Carver, Lane, and Shafer
  • CBS: Search warrants for NV GOP Chair Michael McDonald and Secretary James DeGraffenreid
  • CNN: Subpoena for Shafer, a warrant for Brad Carver’s phone, information on a GA Signal chat

Even though some of these reports cite the late January batch of subpoenas DOJ sent to people who had declined to participate in the fake elector scheme, the timing of the action — taking place one day after the hearing on the scheme — has set off the usual set of whinging that DOJ isn’t doing as much as the January 6 Committee.

Yet even the first of these stories — the WaPo one — provides reason to believe that DOJ is not chasing the January 6 Committee on this investigation at all. And as I keep pointing out, in April 2021, DOJ took steps — starting on Lisa Monaco’s first day in office — that will be critical to this investigation.

I’ve laid out how, by seizing Rudy Giuliani’s phones in conjunction with his Ukraine influence peddling investigation on April 28, DOJ has made the content available for the January 6 investigation at whatever time they were able to show probable cause for a warrant. That’s because the privilege review covered all content from the phones that post-dates January 1, 2018 and the privilege review was conducted prior to any review for relevance, so it would cover content whether or not it related to Ukraine.

As this table lays out, the review on half the devices DOJ was able to get into (there were two the passwords for which it had not cracked by April) included content to date of seizure on April 28, 2021.

Special Master Barbara Jones turned over the last of this material on January 21, days before Monaco confirmed that DOJ is investigating the fake elector scheme. In April, purportedly to conduct an interview in advance of an imminent decision on Rudy’s Ukraine influence-peddling, DOJ asked for his help to get into the last several phones (the numbers in this story don’t match Barbara Jones’ reports, but CNN may suggest there were two newly discovered phones; there has been no overt activity in the Special Master docket since then).

All of which is to say that whatever material Rudy, a prolific texter, had on his phones about the fake elector scheme he was central to would have been available to DOJ with a warrant since January, but that’s only true because DOJ started this process on Monaco’s first day on the job.

Even in spite of that (and the timing of Monaco’s announcement of the investigation into the fake electors), like many people, I believed DOJ might have been chasing the January 6 Committee investigation. Except several details revealed in recent days makes it clear that DOJ had developed information independent of the Committee.

For example, I first learned that Boris Epshteyn was involved from this slide in Tuesday’s hearing, which left Epshteyn’s name unredacted whereas the copy docketed in the John Eastman litigation redacts it.

But Kyle Cheney noted that Epshteyn’s name was first made public in a footnote in the associated court filing. That filing was dated May 26.

Before May 26, according to earlier NYT and CNN stories on DOJ’s investigation into the fake electors, prosecutors were already asking about Epshteyn’s role. Here’s CNN:

Former Trump attorney Rudy Giuliani, adviser Boris Epshteyn and campaign lawyer Justin Clark are among the list of names the witness was asked about, the source said.

Yesterday’s WaPo story similarly described prosecutors asking about the involvement of someone — Bernie Kerik — whose role the January 6 Committee has not yet (as far as I’m aware) public disclosed.

Those earlier subpoenas sought all documents since Oct. 1, 2020, related to the electoral college vote, as well as any election-related communications with roughly a dozen people in Trump’s inner circle, including Rudy Giuliani, Bernard Kerik, Boris Epshteyn, Jenna Ellis and John Eastman.

One would-be Trump elector in Georgia, Patrick Gartland, had been appointed to the Cobb County Board of Elections and Registration and believed that post meant serving as an elector would have created a conflict of interest for him. Still, two FBI agents recently came to his home with a subpoena and asked whether he had any contact with Trump advisers around the time of the November election. “They wanted to know if I had talked to Giuliani,” Gartland said.

One possible explanation (though not the only one) is that DOJ has a more Rudy-focused understanding of the elector scheme than the Committee, which would make sense if they had materials from Rudy’s devices that the Committee doesn’t have.

To be clear: I think it likely that DOJ has or will exploit the January 6 investigation into the same topic in at least two ways.

First, I think it likely that DOJ piggybacked on the Committee’s privilege fight with Eastman. They’ve always had the ability to serve a warrant on Chapman University for the same emails the Committee has been receiving covertly, after all, which is the kind of thing DOJ loves to do in an investigation. But by doing so in the wake of Judge David Carter’s privilege decisions, DOJ can get crime-fraud excepted communications without a Special Master process like the one they used with Rudy.

And, because the January 6 Committee is obtaining sworn depositions from some of the people involved, DOJ may get evidence of false statements — from people claiming to have no knowledge of the larger scheme or corrupt intent of the fake electors — that they could use to coerce cooperation down the road.

With the warrants in NV and GA, DOJ is taking the kind of overt acts that sometimes precede arrests. Because DOJ can get email and social media content covertly, it almost always does that before serving subpoenas (to minimize the chance someone will destroy evidence in response). Only after that, usually, do they seize someone’s phone. That kind of stuff takes months. So there’s no way DOJ could have gotten there overnight based entirely off watching the January 6 hearing.

In Tuesday’s hearing, it became clear that the GOP will try to, institutionally, blame Trump for all this. That may not be true. But it may be useful for DOJ investigators.

Update: Fixed the names of the NV GOPers.

Update: Fixed Brad Carver’s name.

30 replies
  1. CG says:

    Another way to resolve the debate about whether the DOJ or the J6 Comm is the-cart-before-the-horse is to assume that the J6 Comm is now talking publicly about the parts of the investigation that the DOJ has let them know are mature. And the J6 Comm only now issuing Congressional subpoenas in the GOP fake elector scheme in other states might reflect that.

    If that’s the case, I would not at all be surprised if we eventually learn about additional DOJ subpoenas issued to more GOP officials in the fake elector states. Michigan tops my odds list, followed closely by AZ, with WI next in line.

    Hey, is there a line on this in Vegas?

    • emptywheel says:

      I don’t think that’s right either. DOJ is informed of J6’s steps. It’s POSSIBLE they were to take steps in advance of further interviews. But otherwise the sharing seems mostly passive (DOJ making use of steps J6 takes w/o further coordination).

  2. cracker says:

    Lawyer Carver in GA is well known as Brad Carver, has been Chair of the Fulton Co. GOP. Has a high visibility governmental affairs practice at Hall, Booth, Smith. Has exhibited remarkable weight gain since 2020 Election and aftermath.

  3. Ddub says:

    Thank you for your excellent work Ms. Wheeler.

    Any chance this is linked to Rep. Raskins’ statement regarding a number of people coming forward. with new and more information? It would seem to track with people feeling the heat behind the scenes as well as light being shed during the J6 hearings.

  4. WilliamOckham says:

    The “DOJ is chasing the Jan6 Committee” thinking would be hilarious if it wasn’t so dangerous. A much more obvious interpretation of what happened this week is that, from the DOJ’s perspective, the committee’s work interfered with an ongoing investigation, so the DOJ had to rush out all these subpoenas to prevent the destruction of evidence by the conspirators.

    I don’t think that this interpretation is necessarily correct, just that it makes more sense than the current generally accepted point of view. The insider press has a hard time looking at new information and updating their prior understanding.

    • CG says:

      Maybe. But perhaps the DOJ is using the committee’s hearings to create a hue and cry effect that makes defendants (whom they’re already monitoring) rush to delete texts and social media posts (ie evidence), obstruct justice and show consciousness of guilt.

      It wouldn’t be the first time I’ve seen them use hue and cry (tho it is typically done by strategically leaks to the press, or in a “revealing” court filing). It can be a very effective method to obtain solid, clear-cut obstruction & lying to the FBI/under oath charges. Then they use those charges to flip that layer against the next ones up.

      I don’t the coordination is necessarily 100%, but I would be surprised if there isn’t more than meets the eye. This is not a R-controlled committee trying to hamper the investigation (like we might have in J2023). If anything, it’s precisely the opposite.

      • bmaz says:

        That is patently laughable. And, you are right, it is not a GOP committee, it is a Dem committee hampering the investigation. And if you don’t think they are doing just that, you have not been paying attention.

        • CG says:

          Oh I’d contend that I am paying as much attention as you, my friend and ally. (Though not only on this forum.)

          I too have long been concerned about the J6 Committee getting in the way of the DOJ. But in this matter, we already know that for *at least some* of the recently served warrants *the DOJ had subpoenas dating back to January*. We also know that the DOJ has a pattern of ensuring preservation orders and wiretaps before conducting physical searches–and conducting them just after someone starts to panic and destroy evidence. Even smart suspects compound their errors of judgment.

          It’s ok by me if you want to laugh and scoff, but I’ll stand by my position that the hue and cry is a powerful tool to goad those with guilty consciences into making more fearful, wrong, and illegal decisions that come back to haunt them in court.

          Anyway, we shall see. It’s perfectly possible there is little to no cooperation between the investigations, the J6 committee’s revelations have forced the timing of the DOJ warrants, and any apparent coordination re hue and cry is just haphazard and opportunistic.

          And I still think it’s also possible that there’s substantial, if imperfect, coordination on *this* portion of the investigation. Not to mention that there are other portions of the investigation that aren’t getting as much play from the J6 committee, and that might be at the request of the DOJ. I do hope and pray they are coordinating to some extent.

          But yes, Occam’s razor could slice either wrist here.

    • timbo says:

      Does this mean that the DOJ had informed the Committee Chair and Vice Chair of J6 of these investigations far enough in advance so as to prevent overlap and unnecessary legal fumbles? It also seems to me that obstructing Congress in such an important matter as the J6 Committee’s purpose(s) is not necessarily where the DOJ should be, although it appears that they are not willing/not able to indict some folks who are flaunting the Committee’s subpoenas. If this Enterprise is to work, it is not just so that there is legal consequence for scowflaws, but also so that the Congress can shift the perception of what has and is occurring politically in the country away from the fascist tendencies of Trumpist sedition and incitement.

      I am disheartened to see that there are some that seem to feel that Congress must not act if it can’t act in the best way. It’s arguably possible that the J6 Select Committee has done more to keep the public aware of what is an ongoing threat to our Republic and Constitution than the current DOJ has managed to do. And, while I think that we’d all like to see justice done fairly, and those who may be seditionists brought to account with as few legal hiccups as possible, frankly, that blatantly obvious law-breaking is taking an inordinately long time to be brought to heel by DOJ, and at the peril of the Republic itself.

      For many decades now, it appears to have been DOJ policy not to look to sharply into the matter of whether a President has or is or might break the law in any serious fashion. The OLC opinion is clear. The DOJ policies are clear. Why would OLC stalwarts want to look even harder into pointing out how flawed that reasoning has been over all that time?

      So the Congressional leaders and the J6 Committee are most certainly not going to be depending on DOJ, nor reining in their own investigations, just to help out a DOJ that maybe shouldn’t have such odd opinions as that a sitting President can’t be indicted. For the Constitution does not have such an opinion in it. But for some reason, DOJ did and still does maintain this odd opinion. And the convenience of that onerous DOJ OLC opinion is not a bulwark against corruption, as “is” become apparent?

      So, I ask those critics of the J6 Committee and its recent hearings, I ask “What is it that you would have the Committee do instead of what they’re currently doing?” What is it that they are allowed to do that would not jeopardize those precious and mysterious DOJ cases that may or may not be pending? Should they be parading hostile fact witnesses before them as entertainment? Would that be better? Should they, the J6 Committee, do nothing at all and disband? What explicitly is it you want them to be doing better. Be explicit, please. Please!

  5. Jamie C. says:

    This is a fun chicken or the egg parlor game: the seizure of devices in NV can reasonably be read as an example of DOJ playing catch up. BUT, it can also reasonably be read as a reaction to J6 putting their names in the public record, which wouldn’t go unnoticed, so DOJ moved to get the devices. All this antagonism between two branches has me pretty impressed by both investigations.

    Marcy, quite fairly, comes down on the side of DOJ in the antagonistic interplay happening between J6 and DOJ. Josh Marshall at TPM, also quite fairly, comes down on the side of J6 over DOJ. For reasons he explained last night. But to both investigations’ credit, each is moving forward at a pretty good clip for their purposes, even if Twitter wants everything done yesterday.

    The over-reliance on one investigation over the other seems irrelevant, they are both necessary. DOJ should prosecute any and all serious crimes and J6 should shape the politics around the danger to democracy of what happened. We all know the limits of congressional investigations (see impeachments 1 & 2), but they served their purposes. But DOJ is vastly overly relied upon as a remedy in politics. DOJ doesn’t have the means (or desire) to prosecute all of the crimes it investigates, let alone the ones under its purview, ESPECIALLY in the political sphere. Mueller’s team was able to move quickly on Manafort because the lion’s share of the criminal investigation was finished in ’14 and tabled (for some good reason that Marcy wrote about, but I can’t remember). But then Manafort and Stone received pardons, which underlines a pretty considerable limit to DOJ’s authority. And I bet all the money that if a J6 sympathizer is the nominee for the WH in 2024 (at this point seems very possible), he/she will be pressed to blanket pardon anyone involved and it will be a day 1 priority if he/she’s elected. That’s where the GOP is now anyway.

    All to say, this feels like a ‘we need both’ situation. Taken as a whole, I think Marcy and Josh point out the intrinsic flaws and advantages in both investigations pretty well and whether one is spurring the other on, it’s good.

    • bmaz says:

      Josh Marshal’s take, at least past the first paragraph was idiotic. He clearly does not have a clue about how investigations and prosecutions work, and neither do you by all appearances. You have been here for a whole 6 comments, and only since June 16, and all were in service of gaslighting this blog. Why are you suddenly here to push that pablum? You are clearly down with the Committee hampering and frustrating the actual prosecutions, you have made that crystal clear. So, you can give that a rest now.

      That is patently laughable. And, you are right, it is not a GOP committee, it is a Dem committee hampering the investigation. And if you don’t think they are doing just that, you have not been paying attention.

      Also, too, it is NOT a chicken and egg question, and it is not “fun” nor a game. What in the world is wrong with you?

      • Jamie C. says:

        Bmaz, I don’t want to waste any more of your time, but for the record:
        – I’ve posted on EmptyWheel[dot]Net a few dozen of times over the past 10 or so years. It’s a real head-scratcher why I don’t post more…
        – I didn’t say anything about the committees’ partisan makeup and don’t view it that way. So whatever area of agreement you and I had, I’m sorry to say, is gone.
        – Given that you have a different perspective than me, i.e. we disagree. I think Chicken or Egg is an apt metaphor, I am happy to revise to Blue Dress/Green Dress, if you’d prefer that.
        – Saying something is laughable, then saying it is not funny and not a game, isn’t an inherent contradiction, but it’s close. I personally do not view the distinction between whether J6 is following DOJ’s lead or vice versa as remotely serious. I find it interesting in a game theory sort of way. If you do think it is deadly serious, make that argument, but I don’t see it. Seems like fun blog fodder to me.
        – I think argument and disagreement is fun and valuable. This particular one less so, but perhaps there’s something worthwhile in spelling my POV out.
        – I’ll look forward to you identifying areas of disagreement, rather than the above, but if you don’t want to, that’s cool. We can just disagree, but as I said, I don’t want to waste any more of your time.
        Be well, Jamie C.

        • bmaz says:

          I will not be “clarifying” anything for you. You are annoying and gaslighting us. I asked you to stop, you appear incapable. You are wasting not just my time, but everybody’s time.

          • obsessed says:

            bmaz: DOJ is following an incredibly complex, brilliant, and time-consuming strategy that should not be questioned or tampered with, and if you don’t get that (insert ad hominem attack here)

            also bmaz: DOJ is never going to charge Trump, and if you don’t get that (insert ad hominem attack here)

            • timbo says:

              Please keep commenting here if possible. We need to have some balance here and I, for one, agree with much of what you have said.

              Politics is hard. Being impolitic is easy. We are all wound up about the unwinding of our Constitution, and the obvious corruption and incompetence that are manifest in much of our nation’s institutions at this moment. Listening can be important.

              I have had my mind changed several times by many regular commentators to One thing that will not change is the idea that the representative bodies are important to a functioning democracy and that, in our Federal system of checks and balances, that the Congress has an duty to ensuring that the laws are codified and rightly made good if possible. That includes oversight of the DOJ is in this instance, and it includes making sure that the public is not kept in the dark as to what has happened and may well still be happening in the country.

              The ‘wheels of justice’ can indeed grind too slow for a given moment in history. This may be one such moment. May we all continue to enjoy the privilege of debating the contrary for as long as possible. But let’s be reasonable about what the legal organs of the Federal (and state) law enforcement and judicial systems can and cannot do. They cannot accelerate or compress time, and time is often precious when it comes to attempts at righting a floundering ship… and in this process, the Congress’s J6 Committee is a significant body of the crew.

  6. BobCon says:

    “Except several details revealed in recent days makes it clear that DOJ had developed information independent of the Committee.”

    I remain curious whether DOJ’s investigation of Gaetz will eventually link up. They seem to have had a strong interest in Joel Greenberg’s testimony about Stone taking payments to expedite pardon bids in late 2020.

    It’s certainly possible it was just a side hustle, although it’s interesting that Greenberg’s sentencing keeps getting delayed at the request of prosecutors, with the latest scheduling for August.

    • Ginevra diBenci says:

      I’ve wondered about this too, BobCon. Especially given Gaetz’ “blanket pardon” request. And we always need to keep an eye on Stone.

  7. bg says:

    I remain curious that NM is called a swing state. What I do know is the electoral vote counters for TFG needed 5 more votes which NM has. We have a Republican state party chair who was all in for TFG and we had 5 designated electors for Trump, one of them declined the opportunity to crime. Still no answers on the back room of this. NM is not considered a swing state. Of course we still have Couy G in Otero county where their recent primary votes were held up due to fake voter fraud issues. State Supremes ordered them to submit their votes.

    • Leoghann says:

      I’ve noticed that in a few accounts of yesterday’s hearings. You’re right–New Mexico has been a dependably D state for at least two decades. But the GOP southern part of the state, long called “little Texas,” has lately turn into a noisy branch of the GQP. Because of the noise they make, of course they were pressed for fake electors.

  8. Thomas says:

    It seems to me that Garland, Monaco, Polite and many others had a plateful of leftovers and a gang of criminals sitting in the Senate trying to delay any help in finishing the leftovers.

    I’m sympathetic about the extraordinary obstacles being put in their way by a seditious criminal organization masquerading as a political party, and I’m GRATEFUL for Dr. Wheeler’s amazing powers of analysis and encyclopedic knowledge of court cases, which no one else has!

    BUT (You knew there was a “but”) The glacial pace bringing cases that remain unresolved have become such a irritant to the public that faith in the rule of law is deteriorating.

    There is a very real and palpable fear in the population that criminals and terrorists are succeeding in warping reality to their advantage OVER the very institutions of democracy.

    “You don’t understand how the Justice System works!” is not what people want to hear when they have a LONG LIST of abuses and usurptions and felonies by former public officials who skip around free, laughing in our faces and gaslighting and mocking us and committing more crimes!

    The J6 Committee is not “obstructing an investigation.” They are establishing a set of FACTS and I believe that they will aid the DOJ just by doing that!

    Otherwise facts will swim in a blizzard of lies and the carefully constructed cases of the DOJ will be successfully portrayed as partisan overreach and false prosecutions, helping the criminals to further defraud more and more people.

    The public perceptions are instead beginning to turn against the seditious organized crime movement.

    Prosecutions will now come against a backdrop of falling support for the frauds and liars.

    I have hope, thanks to Dr Wheeler that my own opinions about prosecutions coming for Russian money laundering (both by Trump and the NRA), and the omerta obstruction racket, and the Trump/Rudy Ukraine impeachment, and the Kushner/Trump extortion racket will all be prosecuted in addition to the slew of felonies around the coup/insurrection/wire fraud racket.

    By my calculations, hundreds of people are legally exposed for very serious felonies that can send them away for decades. It’s important for these prosecutions to happen. There is too much focus on Trump himself.

    Finally, even all of the garbage piles of felonies that I list here are not completely inclusive of the Trump-led rampant crime spree by him and his minions.

    There are many more grifts and grand larceny schemes the Trumpsters perpetrated inside the government.

    And there are hundreds of counts of negligent homicide (covid). And there are at least three unresolved murders. And there is LOT of smoke looking like child sex trafficking at the border. And there are institutional human rights violations.
    None of that can just be forgotten or overlooked because too many crimes were committed.

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