The Fourth Account: The Grand Jury Investigation into Jeffrey Clark and Others

Last Friday, Beryl Howell unsealed two opinions regarding privilege team reviews in the grand jury investigation into attempts to overturn the 2020 election. The first order, dated June 27, 2022, pertains to 37 emails involving Scott Perry seized from two Gmail, one Microsoft, and John Eastman’s Chapman U email accounts involving:

  • A non-lawyer whose name remains redacted (probably 8 documents total)
  • Jeffrey Clark (19 documents total)
  • Ken Klukowski (7 documents total)
  • John Eastman 3 documents total)

The second order, dated September 27, 2022, pertains to a filter review of an outline for an auto-biography Clark was writing on October 11 and 14, 2021, which was auto-saved 331 times in Google Notes. Because Clark attempts to invoke both work product and attorney-client privilege over a document he initially labeled as not privileged, Howell calls Clark’s claims in that dispute “throwing spaghetti at the wall to see what sticks.”

The orders reveal bare outlines of the investigation.

It shows, first of all, what I laid out here: That the FBI obtains warrants for materials stored in the cloud that are accessible covertly before it gets warrants for things — like phones and homes — that it must seize overtly. In Clark’s case, the FBI first obtained his Outlook account and only later his Gmail account.

By May 26, the FBI had warrants for the cloud accounts of four people. But it took just a month to get a warrant for Jeffrey Clark and John Eastman’s phone.  Amazingly, it seems that the FBI used Scott Perry’s involvement in the investigation as a way to initially isolate information that should not be privileged. Most of the emails in the first order sound investigatively uninteresting, including things like nine copies of Clark sending Perry two versions of his resume or requests from Perry to give him a call; that provides a glimpse of the difficulties of an investigation, like this one, in which most of the suspected co-conspirators are lawyers.

The material covered by the second order sounds more interesting, as it gives Clark’s version of the January 3 confrontation where most of DOJ’s top officials and Trump’s top White House Counsel threatened to quit.

The second order explains that after an overt search takes place on a subject, then their own attorneys are brought into the filter process (as Clark’s attorney was in the second order).

The filter protocol was later amended with respect to Clark and others to provide for detailed procedures for disclosing certain material to any potential privilege holder after separate search warrant on Clark and others, and Clark’s residence were executed, alerting these persons to the government’s investigation.

This detail suggests there likely was an overt warrant served on Klukowski (otherwise the existence of the cloud warrant targeting him would not be unsealed). It suggests the fourth person, a non-lawyer, has not yet been formally alerted into the investigation into him or her.

It also likely provides background to what happened with Scott Perry. DOJ was already accessing his [email protected] email, at least those seized from the lawyers. He likely learned the full extent of prior warrants served on him in August, after DOJ seized his phone. And a more recent dispute over text messages reported by CNN may operate under a similar protocol, with his lawyer contesting access directly.



May 26, 2022: Three separate hearings on filter protocol; Howell approves filter protocol for four email accounts

June 17, 2022: Filter team begins reviewing 130,000 documents

June 23, 2022: Jeffrey Clark home searched and phone seized; John Eastman phone seized

June 24, 2022: Warrant approved for Clark Gmail account

June 27, 2022: Howell authorizes sharing of Scott Perry emails; Warrant executed for Clark Gmail

July 12, 2022: Filter protocol covering devices seized from Clark’s residence

July 21, 2022: Howell approves filter protocol for Clark Gmail account

August 9, 2022: Scott Perry phone seized

August 17, 2022: Filter team notifies Clark of auto-biography dispute

August 25, 2022: Clark attorney Charles Burnham objects to sharing of auto-biography, claiming attorney work product

August 29, 2022: Filter team provides more substantive reply; Burnham responds, “We object”

September 8, 2022: Filter team moves to share a copy of motion with Clark’s lawyer and a memoir with investigative team

September 21, 2022: Supplemental response to Beryl Howell query

September 27, 2022: Howell approves sharing of memoir

September 28, 2022: Clark provided September 27 order

November 16: Howell issues minute order about unsealing opinions

December 15: Howell unseals two redacted orders

69 replies
  1. Badger Robert says:

    Question: Are the cases against the corrupt lawyers likely set up for Attorney Smith to proceed to prosecution? It would seem that deciding yes or no on those suspected perpetrators would be a preliminary step.
    The people that fed Trump’s obsessions should be differentiated from those who quit the conspiracy, no matter how late the quitters finally bailed.
    Merry Christmas and Happy Holidays.

    • Peterr says:

      Look at it this way.

      Look at this post and recognize just how difficult it is to properly serve warrants on a lawyer suspected of wrongdoing, and all the steps the DOJ needs to take to (a) get the judge to sign off and (b) filter materials so that you don’t end up voiding your case before you can present it to a jury. If you are running an investigation where a lawyer becomes a possible suspect, you don’t want to get into that mess of weeds unless you’re pretty damn sure there’s something there that’s worth all the hassle.

  2. Rugger_9 says:

    Well, will this affect Perry’s upcoming review by the House Ethics committee? I would hope so, but with an already slim majority I can’t see McCarthy (or whoever the Speaker becomes if GOP) signing off on something that might shrink that majority. Likewise for our Long Island rep’s litany of fabrications that somehow escaped the detection of the NYS Democratic party oppo team.

    On the latter item, let’s remember that Andrew Cuomo allowed (at least, if not encouraged) four turncoat Dems to take the Albany legislature into a de facto GOP majority until they were turfed out a couple of years back. That it meant Cuomo didn’t have to do anything except ride on his father’s reputation (gosh, the Lege is blocking me!) I’m pretty sure had something to do with the lapse in party support. So, looking the other way as a quid pro quo seems to be normal for the NYS Dem leadership.

    • Sloth Sloman says:

      Until there is evidence to the contrary, it’s safe to assume the GOP will never break ranks to discipline one of their own (unless it’s an already losing vote and they need to appeal to a more moderate constituency – see impeachment round 2).

  3. John Paul Jones says:

    Any bets on whether Clark will later claim that the autobiography was partly fictionalized, i.e., that it cannot be relied upon as a true record of events? Not saying that it will work, just that it seems an obvious trope to try on.

    • Wajim says:

      And what “autobiography” is not “fictionalized”? Memory is a long, rutted, muddy, gumbo road, even if one strives hard, and intends to honestly recall the “facts”

      • Alan Charbonneau says:

        “Memory says, ‘I did that.’ Pride replies, ‘I could not have done that.’ Eventually, memory yields.”
        —Friedrich Nietzsche

        • Richard Turnbull says:

          Everyone can learn something from Nietzsche, including hyperbole deployed as a rhetorical device to make us think, consider, weigh alternatives, invent counter-arguments.
          In fact, you could reverse the entire psychic flow of the witticism by positing that some people aimed at, and hit better results in real life, and “Memory” was and remains a better guide than post hoc criticism. Guilt-tripped, etc. Merry Xmas and Saturnalia and all that good stuff, and to all a good fight worth winning!

      • Ravenclaw says:

        The reconstructive nature of memory is a wholly different animal than either the concealment of inconvenient facts or the willful fabrication of events that never took place.

        You can easily ‘remember’ yourself as having earned a B+ average in college when in fact it was a B-, but you cannot ‘remember’ yourself as having attended and graduated from a college with which you had no affiliation whatsoever, or where you took just a summer course or two. Not unless there is something seriously wrong with the functioning of your brain, as in obvious psychosis or dementia.

  4. Sloth Sloman says:

    I must have missed that photo of Clark… has that been public for a while?

    What a wonderful Christmas present on my last day of work for a week. Best wishes and happy holidays to EW.

    • punaise says:

      Can’t see that picture without envisioning hands cuffed behind the back. This may be the closest we ever get to a frog march / perp walk.

      • posaune says:

        Clark’s image is not helped by the double-door front-loaded garage. He should have asked to be cuffed on the back deck, or bought a detached unit with side-loaded garage. This is a housing style problem. /s

            • P J Evans says:

              Friend’s mother lived in a double-wide for years, while she was working. It was quite nice, AFAICT from visiting. (She had a coop of bantam chickens out back for eggs and food.)
              After she retired, she had a house built for her (she had a contractor’s license).

          • punaise says:

            Sorry, I meant to cast no shade on double-wide mobile homes, which can indeed be pretty nice in the right context. I was referring to a single garage door, 16 ft. wide, rather than the slightly better pair of single “carriage house” scale doors separated by a post or some such.

      • posaune says:

        Clark’s image is not helped by the double-door front-loaded garage. He should have asked to be cuffed on the back deck, or bought a detached unit with side-loaded garage. This is a housing style problem. /s

  5. greenbird says:

    could you revise to indicate “first” as ECF #, a mem/op
    and “second” as ECF #, a mem/order ?

    also, both are unsealed under ECF Doc 32, dated 12.15.2022 ?
    have pity on your faithful bird-brain.

    was hoping to clarify whether both docs are ‘orders’ …

  6. Badger Robert says:

    Nice to release to the public the DFG’s returns. But what I would like to see is the IRS re-auditing the returns as fraudulent. No S.O.L. if my memory is correct.

  7. AlaskaReader says:

    Disgraced attorney John Eastman testified today, as has convict Stewart Rhodes, in the Alaska case brought in hopes of expelling from office, David Eastman, (no relation), an Alaska State legislator who is an avowed Oathkeeper member.

    Alaska’s Constitution has a clause that forbids someone from holding public office if they aid or belong to a group that advocates the overthrow of the U.S. government.

    Hilarious to hear John Eastman describe the capitol invasion as not a violent coup attempt but more like a mere ‘tailgate party’.

    Testimony from Rhodes was equally as ludicrous and unmoored from any reality, especially as it came from his cell after being convicted of insurrection.

    The court filings and testimony in this case might interest some to compare and contrast with other filings and testimony.

    My feeling is that it’s pretty clear a number of elected lawmakers should be barred from office, be they federal, state or local.

    Rule of law and all that, eh?

    • AlaskaReader says:

      Correction: …the ‘tailgate’ comment was made by witness for the defense, John Guandoloa, former FBI employee who is currently a ‘police trainer”.

  8. Vicks says:

    I understand why a congressional committee fought for and won the right to see Trump’s taxes, but could someone explain how Congress has the right to make his returns public?

    • Belyn says:

      Congressional oversight.

      In addition, he lied to “we the people” about releasing his taxes and about being under audit. It is in our public interest to have a look at what was promised and lied about.

    • Rayne says:

      Belyn has provided a good response but there is one more reason why a president’s returns should be public: the executive and members of Congress are the only federal employees mentioned in the Constitution as being barred from receiving emoluments.

      Right now the public does not know if Trump was corruptly influenced by emoluments because we’ve never seen his tax returns, unlike his predecessors over the last ~49 years, since Nixon. Unlike his predecessors, because Trump never shared returns he has sworn to be accurate under penalty of perjury, the voters have never known based on his financials if he is a law-abiding taxpayer.

      Further, Trump has resisted providing his return under the premise the U.S. recognizes a constitutional right to privacy. He nominated jurists to SCOTUS who bolster the opinion of jurists Alito and Thomas that there is no such right to privacy (which has underpinned the right to mixed race marriage in Loving, same-sex marriage in Obergefell, contraception in Griswold, abortion in Roe). If there is no such privacy right for citizens for many highly personal decisions, there’s no such right for an executive who should be required to prove they have not corruptly benefited from their office and have been law abiding before taking office, with Congress exercising oversight as the representatives of the people.

      • PeteT0323 says:

        At one time there was speculation that the House Ways and Means Committee could forward Trump’s tax returns to an appropriate Senate Committee (if there is one) in order continue a look-see into Trump’s taxes by Congress via the Senate.

        I suppose they still could – and I think they should.

        • Rayne says:

          Why would they bother with such convolutions? The problem the Senate should address is that no elected member of Congress or the White House, about whom the Constitution prohibits emoluments, nor any SCOTUS jurist, should be allowed to hide their tax returns from Congress and the public. The Senate should have focused on that and written a bill both the Senate and the House could pass to require tax return disclosure and not merely financial statements.

          • bmaz says:

            Yes, think that is exactly right. The irony is that the nutters think it was FBI/DOJ doing all the leaking. They were not.

            • Rayne says:

              If they read the coverage of the Mark Meadows’ comms at TPM and noted who TPM worked/spoke with, they’d figure it out. Just not willing to do the leg work, but then the truth doesn’t fit their narrative that a single former GOP rep was a source.

                • Rayne says:

                  If you can point to more obvious sources since the committee launched its work, do let us know.

                  There have been remarks in reporting indicating committee members were peeved at Riggleman. He did not remain with the committee for the length of its mission. I haven’t read yet any reason why he left since he was adamant there was work to be done and crimes had been committed.

          • earlofhuntingdon says:

            Exactly right. It’s a minimal cost required to represent the public and to wield the power of government.

            Financial statements are inadequate and inadequately policed, as is much else about currently required financial and conflicts disclosures.

            They need to be more complete, including disclosure of beneficial interests to the officeholder and family members, with much narrower dollar ranges. They need to be made public in an easily searchable digital form. The rules need real teeth for lying or for being routinely or egregiously late. Not just cash, which should be deductible from government salaries, but prompt withdrawal of privileges, and ultimately ejection from the chamber. That would make their daily lives annoying – but only because they failed to comply with essential rules for public government.

            After a few years, it will become clearer how Joe or Jane Congresscritter went from high middle income to millionaire on a gubmint salary. For the many who would refuse to submit to such disclosures, I say good riddance. Government is not for them. There will be plenty of people ready to take their place, many of whom would care less about money than public service.

            • vicks says:

              Yep and all stock trades get run through either a central brokerage or brokers who are responsible for reporting transactions on timely basis, perhaps even in real time.
              So many solutions… so little interest from both sides.

              [Vicks, I beg you to check your username information when you comment. Your name had to be corrected again. /~Rayne]

      • Badger Robert says:

        They work for us, We the People. They are not Kings and Countesses. If they don’t want their finances to be public they can find other work.

        • Rayne says:

          That’s the very point, isn’t it. We need to be assured that the most powerful roles in US government are not corrupt and are not beholden to other powers. A signed tax return is our best, easiest method of disclosure.

      • vicks says:

        I agree with the logic – Trump’s taxes should have been made public, hell-if it had been a prerequisite for the job it may have prevented him from running; but it wasn’t. So it didn’t.
        My question is around the fact that there is a difference between a congressional committee’s right to have access to Trump’s tax documents for investigative or lawmaking purposes and their right to PUBLISH his taxes; it seems even the lawyerly “explainers” I’ve come across conflate the two actions.

        • Rayne says:

          Congressional work is on behalf of the public and should be public material unless there is a compelling national security interest not to disclose it. If you want to argue there’s a privacy right, the president doesn’t have one because our need to know he is in compliance with the Constitution’s pointed ban on emoluments is greater than his personal right to privacy.

          His personal right to privacy is less firm than the nebulous one over our uteruses because our uteruses remain the domain of private sector and his employment as a federal employee is in the public sphere.

  9. readerOfTeaLeaves says:

    Honest question, as I can’t keep up and am behind times, but….
    A post or two back, Wm Ockham made a keen observation taken from the J6 Final Report about the head of Judicial Watch in communication with the White House late Oct 2020:

    “The Committee has assembled a range of evidence of Trump’s preplanning for a false declaration of victory. This includes multiple written communications on October 31 and November 3, 2020, to the White House by Judicial Watch President Tom Fitton.[42] This evidence demonstrates that Fitton was in direct contact with Trump and understood that Trump would falsely declare victory on election night and call for vote counting to stop.”

    If anyone has time to leave an explanation about the relationship(s) between the attys covered in this post, and Judicial Watch (and Fitton), it would be helpful to understand. I don’t mean to be off-topic; I’m really trying to suss out how Clark and/or Eastman may tie in to Judicial Watch. Sincere apologies if this has already been covered multiple times at EW.

    • Super Nintendo Chalmers says:

      The fact of the matter is we knew before Nov. 3 that this was what Drumpf & Friends were going to do. Their co-conspirators in the state legislatures of swing states like PA, WI, MI, GA, etc. all refused to change their laws to allow early votes to be counted prior to Election Day.

      The Red Mirage was predicted and the prediction came to pass. It was all to establish the illusion of a Drumpf victory.

    • WilliamOckham says:

      Ginni Thomas was the connection.

      During the time in question, Tom Fitton was also the head of the Committee for National Policy (CNP). Ginni Thomas was his employee (via p CNP’s 501c4 branch, CNP Action). It appears to me that Thomas was working with Eastman on behalf of CNP to execute the coup.

      Wheels Within Wheels, the interlocking conspiracies to overthrow the U. S. government

        • bmaz says:

          That is the thing though: These referrals are absolutely meaningless legally. Could have made a social statement, but, as Marcy points out, they really did not. That aside, what would Ginni Thomas be referred for?

  10. Dredd says:


    “A non-lawyer whose name remains redacted (probably 8 documents total)
    Jeffrey Clark (19 documents total)
    Ken Klukowski (7 documents total)
    John Eastman 3 documents total)” – emptywheel

    Can you imagine the effort that goes into a coherent documentation of these specific grand jury machinations. Or those in the Jan 6 inquiry. They use “thousands”, “hundreds”, and even “millions” when alluding to the enormous volume of this stuff.

    C’mon … there is a language in the field of “law”, “biology”, “mass” … etc. … it is called “Latin” … ;)

    But there is a language in the field of “the voluminous” … like “Grand Jury Investigation into Jeffrey Clark and Others” emptywheel is shining a light on here.

    That language is Dredd.

    Big time document handling doods recommend it for such cases (Apiary designed APIs tested using Dredd).

    This is not a commercial, it is a public service for those who need relief.

    [Stop pushing product here. This is your FINAL warning. /~Rayne]

  11. Purple Martin says:

    One of the most entertaining things I find about this whole thing (which may be evidence that I’m not a nice person), is that Jeffery Clark seems to have spent much of 2021 writing in his journal / memoir / autobiography (he finally settled on the last)…with a notation that “[n]one of this outline reveals privileged information”…in a Google Note…which tracks additions and edits…which autosaves to his Gmail account…with helpful timestamps…discoverable through a subpoena to his service provider…without his knowledge.

    And the day after he was subpoenaed, he added a notation: “However this is attorney work product.”

    This is from Judge Beryl Howell’s second unsealed opinion order, which, per EW:

    “…pertains to a filter review of an outline for an auto-biography Clark was writing on October 11 and 14, 2021, which was auto-saved 331 times in Google Notes. Because Clark attempts to invoke both work product and attorney-client privilege over a document he initially labeled as not privileged, Howell calls Clark’s claims in that dispute “throwing spaghetti at the wall to see what sticks.”

    Strands of that spaghetti included two alternative arguments:
    1) He was representing himself, so having privileged conversations with his attorney.
    2) Be was represented by an attorney (Robert Driscoll), and “many attorneys have a practice of even requesting that clients provide autobiographical information for use in the representation.”
    The first was quickly and blandly dismissed (apparently not worth greater effort). In addressing the second, however, Judge Howell’s language was particularly entertaining:

    That the opposition brief elided any firm factual assertion about Clark’s intended purpose in writing the drafts — even while making legal arguments that depended on such facts being true — raises concern about any good faith basis Clark has for claiming protection under the attorney-client privilege or the work-product doctrine.

    I think the only remaining question is who plays Clark in the movie, working title: “any good faith basis”

    [FYI – your username has been changed this one time to match that you’ve used in 112 previous comments. I have a suspicion you may not have intended to use a RL name here and instead your pseudonym. If you’d prefer otherwise, please let me know in replies. Thanks. /~Rayne]

    • Purple Martin says:

      🙄 Thanks Rayne. I use a pull-down which is, of course, a way to efficiently automate my mistakes.

    • Peterr says:

      Throwing things at the wall when you are angry, cornered, or otherwise bothered by intemperate people who oppose or even merely question them seems to be a pattern for the insurrectionists and their enablers.

      • Peterr says:

        The pattern of each reporter asking two questions — one for each national leader — is standard SOP. Both questions get asked at the same time, and the leaders take turns as to who answers first. Once, when it was Biden’s turn to answer first, he broke with protocol and answered both questions. From CBS:

        In the final question to Mr. Biden and Zelenskyy, a reporter asked whether the U.S. could give Ukraine everything it needs to liberate the Russian-held territories swiftly, prompting a light-hearted back-and-forth between the two leaders.

        “His answer is yes,” the U.S. president said.

        “I agree,” Zelenskyy replied, prompting laughter.

        Biden wasn’t doing national mansplaining here, but saying very politely that the answer to question was so blatantly obvious to anyone that he’d give it himself. Between the lines, Biden was also saying to Zelenskyy, “Yes, we *know* what you want us to do.”

        And Zelenskyy smiled and said in essence, “Good.”

        • rip no longer says:

          That was a great move. Both could have answered the question for the other. As if they are very much in lock step.

    • Tom-1812 says:

      The Weather Gods seem to be reinforcing the importance of President Zelenskyy’s visit to Washington by sending this massive Christmas storm through the mid-West and Northeast with its forecast high winds, extensive power outages, and property damage to give us a mild taste of what the people of Ukraine have been enduring these past months.

    • Peterr says:

      I fully expect that in his bid to gain the votes of MTG, Boebert, and Gaetz to be speaker, Kevin McCarthy will promise to issue an order that members of Congress are not obligated to pass through any security checks in the House chambers.

      I also fully expect they *still* will not vote for him, and that this kind of order will go into effect in January regardless of who becomes speaker.

      • Purple Martin says:

        He did that three weeks ago. Per Associated Press:

        McCarthy’s pursuit of speaker’s gavel comes at a high cost
        By LISA MASCARO November 27, 2022

        McCarthy has assured that under his leadership, the House will remove the metal detectors that were installed to prevent firearms in the House chamber.

        • earlofhuntingdon says:

          If McCarthy wins, he won’t have control for two weeks. This was on the current Dem leadership and its and the SS’s and State Dept’s security protocols.

          I would have thought that after Jan. 6th, being a member of either the House or Senate would be no substitute for thorough security protocols.

  12. harpie says:
    11:55 PM · Dec 22, 2022

    NOTABLE: Trump had a 23 minute call with John EASTMAN the same day he started drafting his infamous memo about the Jan. 6 strategy. […] [screenshots]

    12/23/20 EASTMAN prepares memo

    8:58 AM EASTMAN call from EPSHTEYN

    9:09 AM EASTMAN calls CHESEBRO [“over 41 minutes”][> 9:50 AM]

    [“Eastman continues to trade calls with Epshteyn and Chesebro throughout the day.]

    1:32 PM EASTMAN to Molly MICHAEL [email]: “Is the President available for a very quick call today at some point? Just want to update him on our overall strategic thinking.”

    1:37 PM WH switchboard to EASTMAN [“almost 23 minutes”] [> 2:00 PM]

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