Beryl Howell Scoffs That We Think We Know Anything about the Trump Investigations

On February 16, CNN published a story describing that there were eight sealed grand jury matters in the twin investigations into Trump. In addition to the not-yet filed Mike Pence challenge to his own testimony, it named seven other sealed proceedings:

  • The crime-fraud ruling pertaining to Evan Corcoran
  • DOJ’s bid to hold Trump in contempt for failing to turn over all stolen documents in his possession
  • Trump’s Executive Privilege claim with Greg Jacob and Marc Short
  • Trump’s Executive Privilege claim with the two Pats, Cipollone and Philbin
  • Scott Perry’s Speech and Debate challenge to the warrant for his phone
  • The privilege fight over Jeffrey Clark, John Eastman, Ken Klukowski, and one other person’s content
  • The order compelling Kash Patel to testify

Just over a week later, on February 24, Xitter’s lawyers would include that story in package of media articles it claimed — in its reply brief to vacate the gag order — showed that DOJ didn’t need to keep the warrant for Trump’s Xitter account sealed any longer.

That story about how little we knew of sealed grand jury proceedings became part of yet another sealed grand jury proceeding in the investigation into Donald Trump.

The reply motion itself made a bunch of claims about how much was known about the investigation, with more links to news articles.

3 Mr. Trump may be unique in this regard for this investigative step. Because he was announced as a principal subject of investigation and because the public reporting has focused on investigative actions directed at him, he may have a unique level of knowledge about investigative actions regarding him—even relative to other investigations of him that were conducted with far less public awareness.

4 The news articles Twitter cited its initial motion are attached here as Exhibit A. The articles cited in this Reply are attached as Exhibit B.

5 Maggie Haberman & Michael S. Schmidt, Jared Kushner and Ivanka Trump Subpoenaed in Jan. 6 Investigation, N.Y. TIMES (Feb. 22, 2023), available at [link redacted]

6 Maggie Haberman & Glenn Thrush, Pence Gets Subpoena From Special Counsel in Jan. 6 Investigation, N.Y. TIMES (Feb. 9, 2023), available at [link redacted]

7 C. Ryan Barber & Sadie Gurman, Mark Meadows, Trump’s Last Chief of Staff, Subpoenaed by Grand Jury, WALL STREET JOURNAL (Feb. 15, 2023), available at [link redacted]

8 C. Ryan Barber & Alex Leary, Trump Lawyers Appeared Before Grand Jury as Part of Classified-Documents Probe, WALL STREET JOURNAL (Feb. 11, 2023), available at [link redacted]

9 Katelyn Polantz et al., Special counsel is locked in at least 8 secret court battles in Trump investigations, CNN (Feb. 16, 2023), available at [link redacted]

10 C. Ryan Barber & Alex Leary, Trump Lawyers Appeared Before Grand Jury as Part of Classified-Documents Probe, WALL STREET JOURNAL (Feb. 11, 2023).

11 Jim Small, GOP Arizona legislators, including leaders of the house and senate, subpoenaed to testify in special counsel probe of Trump, Arizona Mirror (Feb. 17, 2023), available at [link redacted]

That February 24 package was actually the second package of news articles Xitter cited or linked to support its argument that revealing the warrant wouldn’t help Trump because so much of the investigation had been publicly reported; it cited a bunch in the initial motion to vacate, too.

First, the Department of Justice’s criminal investigation into former President Trump and his potential role in the efforts to overturn the 2020 presidential election and the January 6, 2021 attack on the United States Capitol, has been public for several months prior to the issuance of this Warrant. Specifically, the news media has reported extensively that presidential advisors, including White House counsel and senior staff, have been subpoenaed to testify before a federal grand jury investigating those events. See e.g., Casey Gannon et al., Former Trump White House Counsel and His Deputy Testify to Jan. 6 Criminal Grand Jury, CNN (Dec. 2, 2022), available at [link redacted] First on CNN: Top Trump Advisor Stephen Miller Testifies to January 6 Federal Grand Jury, CNN (Nov. 29, 2022), available at [links redacted]; Bart Jansen, Justice Department Subpoenas Dozens of Trump Aides in Apparent Escalation of Investigation, According to Reports, USA Today (Sept. 12, 2022),  available at [link redacted]; Kyle Cheney, Two Top Pence Aides Appear Before Jan. 6 Grand Jury, POLITICO (Jul. 25, 2022), available at [link redacted].


It is also well known that, as part of its investigation, the Department of Justice is closely examining the private communications of people within the scope of its investigation, including the former president’s aides and allies. Indeed, the Department of Justice has obtained search warrants for electronic devices of numerous close associates of former President Trump. See e.g., Steve Benen, DOJ Seizes Team Trump Phones as Part of Intensifying Jan. 6 Probe, MSNBC (Sept. 13, 2022), available at [link redacted]; Ella Lee, Pennsylvania Rep. Scott Perry, a Trump Ally, Says FBI Agents Seized His Cellphone, USA TODAY (Aug. 10, 2022), available at [link redacted]; Scott Gleeson, MyPillow CEO, Trump Ally Mike Lindell Says FBI Issued Subpoena, Seized Phone at a Hardee ‘s, USA TODAY (Sept. 14, 2022), available at [link redacted]; Alan Feuer & Adam Goldman, Federal Agents Seized Phone of John Eastman, Key Figure in Jan. 6 Plan, N.Y. Times (Jun. 27, 2022), available at [link redacted]. The Federal Bureau of Investigation (“FBI”) has also executed a search warrant at the home of a Trump ally to seize electronic devices. See e.g. Alan Feuer at al., Federal Authorities Search Home of Trump Justice Dept. Official, N.Y. Times (Jun 23, 2022), available at [link redacted].

Then it included those articles as an appendix in its opposition to show cause to hold it in contempt.

Over and over again, Xitter argued that the media coverage of the investigation provided a thorough understanding of the steps taken so far in the investigation.

It was an argument that then-Chief Judge Beryl Howell, deep into presiding over her second and third investigations — that we know of! — into Donald Trump found wildly unpersuasive.

She and AUSA Gregory Bernstein discussed it at some length in the February 7 hearing on the warrant.

At first, she asked how much Xitter really knew so she could figure out whether Xitter had refused to respond to a warrant thinking that no one would protect Trump’s privileges — thinking that somehow Judge Howell, deep into presiding over her second and third investigation of Donald Trump, had ignored those sensitivities.

Howell: I need to be clear about what Twitter has  seen of the warrant package. I don’t know how many of you at Twitter’s table have ever been prosecutors; but you know the warrant is a very thin little part — important part, critical part, it is a court order — a thin part of a warrant package. I am not clear from this record what Twitter has seen and what it hasn’t. It doesn’t know very much at all, although it thinks it does, about the government’s investigation; but it certainly doesn’t know, I don’t think, very much about the warrant that I signed and all of its parts. But I need to be clear about what it does and doesn’t know about that.


THE COURT: ALL right. Now let’s turn to the warrant package. Okay.

So the warrant package consisted of an incredibly lengthy affidavit, the warrant itself. The warrant itself had Attachment A, property to be searched; it had Attachment B, particular things to be searched; and Attachment B had different parts.

Now, certainly, Twitter hasn’t seen the application part of the package; it hasn’t seen the affidavit part of the package. Is that right?

MR. BERNSTEIN: Yes, Your Honor.

THE COURT: That’s correct?

MR. BERNSTEIN: That’s correct, Your Honor.

THE COURT: Certainly, Twitter has seen the warrant and Attachment A; is that correct?

MR. BERNSTEIN: That’s correct, Your Honor.

THE COURT: And out of Attachment B, has Twitter seen any part other than Part 1?

MR. BERNSTEIN: No, Your Honor.

THE COURT: Okay. Well, that’s sort of what I thought, but I wanted to make sure.

So Twitter, as it sits here, has zero idea and zero affirmation about whatever filter protocol or procedure there is attached to this warrant in terms of processing any warrant returns; is that correct?

MR. BERNSTEIN: That’s correct, Your Honor.

THE COURT: And if they know, it’s not from the government.

MR. BERNSTEIN: I’m sorry. Can you repeat the question, Your Honor?

THE COURT: They wouldn’t know from the government.

MR. BERNSTEIN: They would not know from the government, Your Honor, that’s correct.

THE COURT: ALL right. So to the extent that Twitter is standing here, as I understand their position, trying to protect any privilege of the account user with this solution of providing prior notice to the account user, they are taking no account because they can’t — because they haven’t seen it and they don’t know anything about any filter protocol that might be attached to this warrant.

MR. BERNSTEIN: That’s correct, Your Honor. They do not know about any Filter protocol that could or could not be attached to the warrant.

THE COURT: Got it. Okay.

I just want to make it clear, when providers step in here and take up my time on what should be a simple processing of a warrant, exactly how much in the dark they are. Okay.

But then she returned to the question — and the first of Xitter’s two big packets of articles on the investigation — when trying to ascertain whether Xitter had any basis to claim that revealing the warrant wouldn’t alter the balance of the public knowledge on the investigation.

THE COURT: Okay. So Twitter, in its opposition, had, like, I don’t know, I counted like pages of an exhibit of all these press reports about the special counsel investigation; I didn’t look at it in detail.

But, in sum, Twitter’s argument is: Hey, the government’s interest in maintaining the NDO isn’t compelling because look at all this press. Lots of people know about this investigation going on. The Attorney General has an order on the DOJ website saying: I have appointed the special counsel to look at the following issues.

Twitter goes on to say that the press has been doing its job, thankfully. And so, as a consequence, we all know that, you know, the government, in aggressively pursuing this investigation, has been looking at the communications of a number of people.

So it sums up by saying: It strains credulity to believe that the incremental disclosures of this warrant could somehow alter the current balance of public knowledge in any meaningful way so as to cause harm to the investigation.

So just like Twitter doesn’t know much about the warrant here at all, and has only seen a small sliver of the entire warrant package, do you think that it strains credulity to believe the incremental disclosure of this order would somehow alter the current balance of public knowledge in any meaningful way?

MR. BERNSTEIN: Absolutely not, Your Honor.

There is an incredible difference between the public knowing about the existence of the investigation and the account holder in this case knowing about a concrete, investigative step that the government has taken.

And, again, I have to be careful about what I say in this setting because I don’t want to disclose information that’s covered by 6(e) or that otherwise would compromise the investigation. With that said, Your Honor, I think when Your Honor gets our ex parte filing with respect to the NDO, I think Your Honor will wholeheartedly reject the assertion that it strains credulity to think that there could be serious adverse consequences from the President finding out about this search warrant.

Howell and Bernstein returned to the question a short time later, when Bernstein said, “they don’t know anything” but where making “confident factual assertions without knowing the actual facts of the investigation.”

Howell: So do you want to respond to that? — to Twitter’s comment that there is no reason to believe notification would suddenly cause Trump or potential confederates to destroy evidence, intimidate witnesses, or to flee prosecution, or are you waiting on that for an ex parte submission?

MR. BERNSTEIN: We are waiting. But I can give Your Honor two responses in the meantime.

First, they don’t know anything. I mean, they know some stuff. They know what they have read in the newspapers. But they’re making these confident factual assertions without knowing the actual facts of the investigation.

Number two, they have cited a number of news articles. They seem to have a robust understanding of what is in the public record. They seem to be ignoring the fact that there is an entirely separate public investigation into the former President for doing just that, for taking obstructive efforts with respect to NARA’s request to retrieve classified documents, and then the government — the grand jury’s request to subpoena classified documents  from the former President, and the steps that he took to obstruct those efforts. So there will be considerably more detail about the basis for the NDO when we brief this issue.

For now, though, the assertion that they’re making, one, is not based on any factual foundation that they could possibly be aware of; and then, second, to the extent that they are able to ascertain details from the public record, they seem to be ignoring those details.

Xitter had no factual foundation to make the confident assertions about the investigation, an AUSA who had been involved in crafting the warrant explained.

DOJ repeated that argument in its opposition to Xitter’s motion to vacate the order of contempt.

Twitter offers (Twitter’s Mem. 8–14) two unpersuasive arguments to the contrary. First, Twitter contends (id. at 8–12) that because some aspects of the investigation are publicly known, it “strains credulity to believe” that providing the Warrant to the former president will “alter the current balance of public knowledge in any meaningful way” because such a disclosure would be merely “incremental.” Id. at 11. That contention is flawed in several respects. Although the investigation’s existence is no longer secret, it does not follow that the specific ongoing investigative steps the Government is pursuing are therefore publicly known. Many of the media accounts that Twitter cites (id. at 8–10) attempt to fill in gaps based on discrete pieces of information or courthouse sightings of witnesses.4 Whatever the effect of those accounts on the “current balance of public knowledge,” id. at 11, they provide nowhere close to the detail supplied in the Warrant. Providing the Warrant to the former president at this point in the investigation would thus far exceed some mere “incremental” step in informing the former president, as described in the ex parte submission.

4 The same is true of the 80 pages of articles and other documents that Twitter submitted as an exhibit to its opposition to the Government’s Motion to Show Cause. See Twitter’s Opposition to Government’s Motion for an Order to Show Cause, Exhibit B (filed Feb. 6, 2023).

At the same time as we were having very public, ugly battles about what TV lawyers were sure they knew about the investigation, Beryl Howell and Gregory Bernstein were scoffing at the idea that anyone would have a thorough understanding of the investigation based off what witnesses shared with the press or what journalists spied from staking out Prettyman Courthouse.

While Politico sussed out that WilmerHale was involved in a high level fight with Jack Smith’s team when the lawyers came back for an appellate hearing in May, no one knew way back in early February that the pitched battle was already, at that point, several weeks in progress.

Neither Politico nor CNN — the two best outlets for staking out the courthouse — knew their own work had been cited as proof that the public knew all there was to know about the investigation, only to have Beryl Howell scoff at the idea.

No one knew that Jack Smith had obtained Trump’s Xitter account. And even after seeing 500 pages from the fight over that warrant, no one yet knows precisely what they were looking for.

I take that back.

After Judge Tanya Chutkan crafted a protective order last week, Trump got his first batch of discovery. And here’s what he described learning about the investigation, in his bid to delay the January 6 trial until April 2026.

It, among other things, interviewed and subpoenaed hundreds of witnesses, executed over 40 search warrants, and compiled information from countless individual sources. The government included some, but not all, of these materials in a massive, 8.5-terabyte initial production, totaling over 11.5 million pages, together with native files, recordings, and other electronic data not amenable to pagination. [my emphasis]

We’ve spent the last two weeks entranced by a single warrant, making grand conclusions about what Xitter — which also knew nothing — was emphasizing to win a legal battle.

We know of perhaps ten other warrants, if Jack Smith is sharing the warrants for Trump’s co-conspirators and close aides (though he doesn’t have a Fourth Amendment interest in any of those warrants).

  1. Rudy’s devices (likely a warrant served on the FBI in NY)
  2. Ken Klukowski’s Google account
  3. Jeffrey Clark’s Outlook account
  4. Jeffrey Clark’s Google account
  5. Jeffrey Clark’s phone
  6. The fourth account from an as-yet unidentified non-lawyer
  7. John Eastman’s Chapman University emails
  8. John Eastman’s phone
  9. Boris Epshteyn’s phone
  10. Mike Roman’s phone

We know of subpoenas targeting Sidney Powell. We know nothing — literally nothing — about the investigation targeting Ken Cheseboro, one of Trump’s unindicted co-conspirators (except that investigators would have been very interested to learn why he was tailing Alex Jones during the attack on the Capitol, filming him on his phone).

We know of subpoenas obtaining information from NARA. We know of other phones that were seized — like Scott Perry’s and some of the key fake electors and Owen Shroyer — but those present sensitivities that make it less likely they would get shared with Trump, that they would be among the 40 warrants he knows about but we don’t.

We can assume that DOJ obtained warrants for every little last shred of cloud content available from Trump and his co-conspirators, long before they would have started seizing phones.

We can be sure that Trump’s Xitter file would be the last to be seized, not the first. The filings themselves cite how Trump and his associates use Xitter, which DOJ would have learned by seizing those associates’ Xitter accounts first.

Donald Trump is looking at forty warrants and we only know of one with his name on it, and even there we have no idea what DOJ was really after.

I’d say that Beryl Howell was right to scoff at Xitter’s lawyers, at us, for our confident statements about the investigation.

94 replies
  1. Capemaydave says:

    It’s gotta suck being a criminal defendant in Federal court. Such poor chances of victory.

    It’s gotta be exponentially worse when you KNOW you crimed and you suddenly learn the Feds have far more info than you assumed.

    And you don’t know what they have…but you know if they have everything…you’re done

  2. P J Evans says:

    I assume, since it’s Trump, that the claim that there are 11.5 million pages is greatly exaggerated.

        • Fraud Guy says:

          Or crappy copy/paste of data, that introduces ghost formatting of double-spaced carriage returns and insert them in the middle of an otherwise normal line, like an undergrad trying to make page minimums on their term paper…

          • Ian_29SEP2018_1309h says:

            Don’t forget about switching to courier font, that trick was awesome!

            [Welcome back to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Because your username is far too short it will be temporarily changed to match the date/time of your first known comment until you have a new compliant username. You’ve also had other usernames here, including “Ray Ray” and “Ray Buzz,” neither of which meet the 8-letter minimum standard. Thanks. /~Rayne]

      • WilliamOckham says:

        I don’t think it’s the text and tweets that inflate the page count. It’s email. It’s always email. Every court filing I’ve read inflates the page count due to the way email threads are rendered. I’ve seen court filings where an email that started a long thread will be included 30 or 40 times in a single filing. Throw in the obligatory disclaimers that almost all lawyers and most big corporations attach to every single email sent from their accounts and you have at best a very loose relationship between page count and unique content.

        • Ginevra diBenci says:

          That was my guess. Emails and email chains and repetitions thereof. I wish I could take my boxes of twenty-year-old printouts of the same (from personal contract battles) and turn them back into the trees they came from.

      • surfer2099 says:

        u’m guessing 1 per page and each page annotated with a unique exhibit number for refencing purposes. Of course a few million with same reference cuz the page simple says “THIS PAGE INTENTIONALLY LEFT BLANK” just to fuck with them. lol.

    • c-i-v-i-l says:

      No. At the hearing about the protective order, Judge Chutkan asked the government how much discovery they were talking about, and Windom said “for the first discovery production,
      the volume of it is roughly 11.6 million pages, or files,
      which are load ready, available at length. There’s also a
      hard drive with 2703(d) returns and extractions from other
      certain electronic facilities. Those are impossible to
      paginate or to identify by that.”

    • Rayne says:

      Can we please stop with the repeated primers on pronunciation of “Xitter”?

      This has sucked up a lot of thread space over multiple posts now and it adds nothing to the discussion of the post’s topic.

      Community members’ rebuttals to this reply will meet aether.

    • Swade518 says:

      I send Xits

      [Moderator’s note: Knock it off. This comment probably should have been binned for wasting space as off topic. /~Rayne]

  3. ThomasJ7777 says:

    Scott Perry’s phone.

    Feb 23rd? There was a hearing before three appeals judges, one a Bush appointee, two Trump appointees

    Next Wednesday is SIX MONTHS they have been sitting on the ruling, trying to decide if a probable cause warrant for the contents of the phone of a member of Congress ought to be allowed as evidence in an investigation about conspiring to overturn an election


    Are members of Congress immune to subpoenas or searches because they believe that their crimes are a part of their jobs, and thus protected by the Speech and Debate clause?

    I think they are stalling, but IANAL.

    How long should this take? Aren’t we at the tippy top of the amount of time it should take to decide an appeal to block an investigation, pre-indictment?

    If this was an appeal of a conviction, I wouldn’t be asking. But Perry is really getting a whole lot of delay out of this appeal and-

    Is this issue really that hard to figure out? Six months?

    To me, this seems like all the other Trumpist time-wasting bullshit baseless vexatious claims.

    Obviously it is not part of Perry’s job to scheme how to overturn an election. Discussing plans to overturn the election? Nope.

    Just what the fuck can they be turning around and around for six months? Help me out here.

      • Knowatall says:

        Indeed, 18-24 months is not uncommon. But is this issue like an appellate decision? I have found there is a reluctance to ‘school’ lower court judges, which can slow an appeal. Is that at play in the process?

    • Attygmgm says:

      Impossible to read those tea leaves. I’ve had appeals take over a year after argument, even though usually it is more like 3-4 months between argument and opinion.

      Usually a court votes after the argument, and assigns the opinion to one of the judges in the majority. If it’s 2-1 from the panel a judge might dissent. The dissent could change a vote, making for a new majority opinion, or send the majority writer back to address points a dissent has made.

      So it might be completely legit, which is the better default way to think about it.

      • ThomasJ7777 says:

        Thank you for the reply.

        Maybe I wasn’t clear. How is an appeal of a pre-indictment ruling concerning access to evidence obtained in a search warrant different from an appeal of a conviction?

        Same timeline? Takes just as long no matter where you are in the process?
        There is no difference between appeals of pre-indictment rulings and appeals of convictions that have gone through a whole trial?

    • Sue Romano says:

      Am I interpreting this correctly that the journalists that have reported favorably of Trump (Maggie, Schmidt et al) actually hurt Xitter’s argument to protect Trump?

  4. Peterr says:

    “I just want to make it clear, when providers step in here and take up my time on what should be a simple processing of a warrant, exactly how much in the dark they are. Okay.”

    I shudder to think how the next lawyer to speak in her courtroom felt at that moment.

  5. BobBobCon says:

    “The reply motion itself made a bunch of claims about how much was known about the investigation, with more links to news articles.”

    The circularity of that is hilarious — Trump knows so much about the investigation because of reporting by people like Haberman and Schmidt, but of course what those reporters are doing is largely repurposing what Trump’s team told them.

    I guess to be fair to the reporters cited, most of those articles largely just state that someone was called upon by Smith or a phone was seized, and don’t describe what information, if any, was obtained. But some of them, like the March 9 Haberman/Thrush article about the Pence subpoena, still spin off all kinds of claims about the meaning of the single reported action with very, very little backing for what they say.

  6. Christy Hardin Smith says:

    The FBI, especially the white collar forensic online investigative folks, are especially thorough in tracking down every digital footprint, every loose end, every last cent on the financials. If Jack Smith’s team has been investigating the financial fraud aspect of this – as I suspect they have, given the forfeiture possibilities – and every other dirty nook and cranny (Roger Stone and Alex Jones and their Proud Boy security posses and their links to violence via the Willard folks, say), then it could be a lot of info. I once had the FBI pull up to my law office in a box truck, and unload a porch full of boxes of files and audio tapes for a drug conspiracy case. It took me 20 minutes to sign off on all of the receipt of inventory sheets, and another 15 minutes to get all the boxes inside to my office. This was always going to be a lot of discovery. Anyone who has ever defended a federal case knew this was going to be the mother lode of discovery. But most of it should not be new to Trump, who litigated a lot of this already with the J6 committee. But with GJ subpoena power, the FBI is turning over all the stones, and exposing every last fetid crawly whatever to the sunlight if they can help it. When your client tries to overthrow his own government in order to illegally seize power, you really ought to at least expect the FBI to take it seriously.

      • BobBobCon says:

        It sure sounds like the House GOP is biting their nails.

        Although as soon as I read that article I knew the reporter was on the business beat and nowhere near a legal beat. He seems clueless how much of an obvious investigative step this would have been, and the kind of thing banks cooperate with all the time for all kinds of shady enterprises, despite what Jordan told the reporter.

        • Rayne says:

          In re business versus congressional beat reporter — struck me as an easy way to manipulate narrative, contact a business reporter and give them a tip as a source knowing they won’t treat it as more of fucking moron Jim Jordan’s blowhole-ishness. Not like we haven’t seen this done before.

          And you’re right; if the FBI was investigating a violent left-wing group or an Islamic terrorist cell, they’d demand no financial stone unturned and full cooperation by banks with the FBI.

          Hope the Democrats use the likely hearings ahead to ask some pointed questions since only Congress can question itself without having Speech or Debate clause thrown up as a road block.

          • Just Some Guy says:

            We’ve seen that overblown, overwhelming approach on finances applied to Cop City protesters in Georgia too, by the GBI.

            Notably, I have not noticed any reporting on Fani Willis with regards to Cop City.

            (Apologies if this comment is garbled; phone isn’t displaying comments per usual.)

    • emptywheel says:

      My evolving theory is that they charged Trump with what was already public, but gave him discovery on what they haven’t yet charged. Including the financial stuff (which as you note, could include some very expansive forfeitures, if Fani Willis doesn’t get it first with her RICO, but also tying him far more closely to the crime scene.

      • GSSH-FullyReduced says:

        What would be the point of charging the defendant with what’s already been made public and then providing discovery to his team on what they haven’t charged? Wouldn’t this theory be counterproductive since it gives the defense the ability to “see everything” long before trial and then create/devise endless arguments for why the non public evidence doesn’t support the prosecution’s argument? I’m trying to understand the rationale behind your evolving theory. Thanks.

        • emptywheel says:

          Sometimes it’s a way to convince the defendant to pick a less damaging off-ramp. Of course Trump will never take an off-ramp. But if he had to choose to go to trial in March on the fake electors stuff or in May on stuff that could lead to forfeiture and far more damning disclosures, would he?

        • earlofhuntingdon says:

          No. Trump’s decision making seems to make a coin toss look like a deliberate choice. As for the possibility that he faces forfeiture of millions, because he wrongfully raised it from rubes, my guess is that he can’t process the risk.

          I suspect Trump feels he has no choice but to double down. If he doesn’t return to the Oval Office, he faces prison, with a buzz cut, no makeup or red tie, and only an occasional McD’s sandwich.

          I see the disclosure as a freebie, too. If the DoJ were to charge him with any crimes covered by it, it would presumably have to disclose the same material. Doing so now shows him what he can look forward to, if he carries on this way.

          • Ginevra diBenci says:

            What a fascinating tangent–EW’s surmise about DOJ’s expansive discovery, followed by both your theories as to how it might affect behind-the-scenes strategy.

            While Trump *wants* to win back the presidency, I see it as increasingly likely that if he is indeed the nominee, he will lose (roiling polls + a groundswell movement aimed at keeping him off the ballot + an accelerating distancing of the other GOP candidates from him, which he will only exacerbate if Maggie is right and he dodges the debate).

            By giving such fulsome discovery, DOJ may be saying in effect that he can roll the dice with a jury before the election on the J6 charges–and then, after losing both the trial and the election, fold his hand. (Or perhaps after losing the first trial and before losing the election.)(He’s quite visibly not getting any younger, and he’s hypersensitive about that.)

            • earlofhuntingdon says:

              I agree that Trump is likely to lose – though that should not encourage Biden to be more cautious or conservative: he still has to get out the vote.

              Trump would rather win, of course, but he will still spend years soaking the rubes for money, denying he lost, while telling the rubes that “illegally” keeping him out of office is an existential threat to humanity (when he means his wealth and personal freedom).

              Frankly, I’m becoming more concerned about what the GOP will do for its next act, because it’s a lot more lawless and anti-democratic than it was when Trump first ran for office.

            • Matt___B says:

              a groundswell movement aimed at keeping him off the ballot

              I watched an MSNBC interview with Luttig and Tribe this morning who are trying to spearhead this movement from a legal-scholar POV. Tribe says the way it works is that it will take many courageous Sec’y of States to strike his name from each state’s ballot, followed by inevitable legal challenges to that action, followed by appeals on up to the SC. If enough Secy’ of States from enough states take this action, it could create that groundswell…

          • GSSH-FullyReduced says:

            TY Both.
            Seems like the defendant actually enjoys careening down technically challenging routes and ignores the less-damaging off-ramps. He’s kinda the ‘thrill-seeking Evel Knievel of testing legal limits’, he really does get-off on it, just for kicks, just to get his face into authority.

  7. CPtight617 says:

    Appears to be a typo in this sentence. I think you mean Feb. 24., which is over a week later from Feb. 16.

    “Just over a week later, on February 14, Xitter’s lawyers would include …”

    The news coverage of Trump’s Xitter records has been mostly trash and again begs the question why has nearly every outlet sent their courthouse scrubs or political hacks to write about (try to analyze) this unsealed transcript when they are wholly unqualified to do so? Get a technology reporter, a legal reporter with at least a JD and ideally some trial practice, and maybe a consulting criminal defense lawyer to sift thru this stuff so you understand the import and ID where the reporting holes are. You cant know where to look if all you rely on is what’s on the page or what Trump’s legal team tells you. Basic journalism.

  8. Grumble says:

    Sure, Xitter didn’t *officially* know anything more than the public did, but that doesn’t seem to have stopped them from arguing and stalling.

    Maybe Xitter knew more than what they read in the press? Maybe when Xitter got the warrant, Elon immediately called Trump and Trump asked Elon to delay response, and Elon got his lawyers to comply?

    So what did that shenanigan cost Elon? Under $500K including the lawyer fees and the contempt fine. Maybe that was a cheap investment to ingratiate himself with Trump?

    • EuroTark says:

      The contempt would cost “real money” that actually would have to change hands, and not just stock options moved around, so I guess it would actually have hurt.

  9. Vicks says:

    Alex Jones and his millions of crazies would have been a valuable asset to the planners of Jan 6, but he’s also a loose cannon, perhaps Chesboro’s assignment that day was to make sure Jones kept on message and didn’t blow up the plan?
    I also recall some weirdness that suggested Jones encouraged the crowd he was whipping up to move to a different location near a Capitol entrance, if that’s the case, it’s creepy, but not hard to imagine that Chesboro could have been live streaming to some sort of command center.

    [Moderator’s note. Please use the same username and email address each time you comment so that community members get to know you. SPELLING IS IMPORTANT. You’ve misspelled your email address yet again which looks like someone spoofing your identity. They’ve been corrected this once but future comments may not clear moderation if username/email/URL don’t match. /~Rayne]

    • Unabogie says:

      The thing about conspiracy theories that always marks their flawed thinking is that innocent explanations are discarded, often as “proof” of an even larger conspiracy. An example would be that an independent body investigated A Thing and found it isn’t plausible which only proves the conspiracy “goes further than we ever imagined!”

      But I’m struggling to see an innocent or even cogent reason for Chesebro to be at the Capitol, recording Alex Jones, and moving with him. He’s a lawyer. Up to his eyeballs in the fake elector scheme. Up to his eyeballs in the plot to “delay” the J6 certification. So why was he on the ground with Alex Jones, of all people, and recording his progress while making frequent calls to persons unknown? And what became of Chesebro’s recordings from that day? Were they livestreamed? Posted somewhere? Or did they disappear when subpoenaed?

      • timbozone says:

        Maybe he was supposed to be with Jones in case Trump did show up at the Capitol. Trump said he was going to walk to the Capitol at a speech earlier in the day…

  10. Super Nintendo Chalmers says:

    Didn’t Mike Lindell have his phone seized about the same time as Perry? I remember him whining about getting pinched at a Hardee’s and that he couldn’t do any business because “everything was on his phone”.

    What’s his role? Is he an unindicted co conspirator; a target; or just some loser who’s wasted millions for a hoax?

    • Just Some Guy says:

      Lindell’s phone was not just pinched at a Hardee’s in Mankato, MN but allegedly in the drive-thru!

      I made a pilgrimage, of sorts, to that very same drive-thru last fall. Fries were mediocre.

        • Just Some Guy says:

          I didn’t expect much, but we happened to be in Mankato for a mountain bike race, and after that plus some time in the local record store, we needed a snack before heading back to Minneapolis…

          …where later that evening we saw New Order and the Pet Shop Boys, which more than made up for the mediocre french fries served from a otherwise-unnotable fast food franchise location that, if it wasn’t for Mike Lindell’s idiocy, wouldn’t even be on our radar.

  11. greenbird says:

    following along S-L-O-W-L-Y … (dimming lights helps regulate haste) :

    Doc Cloud: re Attachment B [- EXHIBIT B] = Identified in Attachment A
    Doc Cloud: re Attachment B – EXHIBIT B* link:

    (2023 08 15) pages and links:
    230815 23sc31 Attachment B- Documents unsealed without redactions
    – courthouse sightings of witnesses p. 29
    – has been public p. 50
    – Well known p. 51
    – 230224 Reply motion to vacate p. 64
    – CNN secret court battles p. 181
    * Appendix show cause p. 208

    Original Document (PDF) »
    Contributed by Marcy Wheeler (emptywheel)

    i still don’t know whether a docket exists for Sealed 1:23-sc-00031 …
    had no time to read Attachment A or B yet, either.

    • greenbird says:

      i am not complaining.
      it seems this bicycle has warped wheels making ensuring scrutiny impossible because of all the wobbles – interesting and informative ones but wobbles nonetheless.
      i am still not to the point where i know where i am, but i know i am not lost.
      this is difficult for a descendant of engineers of various types.
      oh dear – the known unknowns are challenging the unknown knowns! AGAIN.
      (up to and within Attachment A — AT LAST, the hearing transcript is in process …)

      • xxbronxx says:

        Thanks, Rayne. Striking WGA writer here. Comments here and at CP Pierce are all I’m permitted to write these days.

        • Rayne says:

          Solidarity. As a shareholder of several companies with either AI or streaming products, I hope your strike is successful. I’d really like to see shareholders organize to kick some executives to the curb because they simply don’t understand a living wage makes the entire industry more productive and creative, and that AI is anything but creative.

  12. JVOJVOJVO says:

    Sorry for the dated reference but it just struck reading EW’s last line.

    “You know nothing, Jon Snow”

    • Unabogie says:

      Crypto always seemed useless to me as a currency, unless it was for things like money laundering or illicit purchases. For that, it’s great as long as no one can trace the crypto back to you. So when someone appears to do a flip as drastic as Chesebro (or Lindsey Graham, for that matter) I always wonder if there’s some pressure coming from something they did.

      We do know that Trump and David Pecker used information as a way to control people. We do know that Trump stole at least some documents pertaining to the personal lives of world leaders.

      So pure speculation but it would not surprise me if Chesebro were brought into this scheme because of something he got himself into and not purely personal political whiplash.

      • DrStuartC says:

        Well, crypto is not really that useful for hiding illegal transactions. The federal government has, in the last few years, shown it can track down and find people committing crimes and getting paid with crypto.

        But what really struck me is that he TOLD Tribe he made millions from crypto. Is there proof of that? I’m a psychologist, it’s built into how we think: Just because someone says something, it only means they deliberately or unconsciously want someone to believe what they’re saying. Is this verifiable and true? Or did he get his money elsewhere and Bitcoin was the cover story? In 2014, the nice left leaning lawyer from cheese country says he won the Bitcoin lottery. But he started working with hardcore right wing nut jobs. In 2016, it was Eastman, the former law clerk of Clarence Thomas, who maintained a relationship with Ginny, and Cruz with his lawsuit.

        What does it mean? is a question we ask ourselves. This seeming 180 degree turnaround politically? From what I understand, it’s not common to switch parties/affiliation. Did he like making millions so much, that he realized the right wing pays much better than liberal causes? Did he hate paying taxes on his new-found wealth? Trumps tax cuts were around that time. Was he really never as liberal or hold the values as he seemed, but likes to “fit in”? His newfound wealth, from whatever actual source, would bring him into a different world, of rich, powerful people to fit into, especially as a lawyer. My guess is money, it’s the answer to so many sudden changes in behavior.

        • RipNoLonger says:

          I like the way you think. The anecdote of Cheseboro telling Tribe that he came into some big sums of money via Bitcoin immediately raised a flag for me. If he suddenly had a change of political direction that coincided with this anecdote, I’d suspect an outside influence.

          • Vicks says:

            If you’re a believer, the devil is all over these details….
            ”But in his 50s, Chesebro went through a stunning mid-life crisis after investing in Bitcoin, selling out four years later and making a fortune. It was around this time that Chesebro transformed his life, splitting with his wife of more than two decades and buying a penthouse apartment at 230 Central Park South in Manhattan, where an adjacent penthouse “is currently on the market for $13.95 million… Around his 60th birthday, Chesebro began courting a young woman, providing trips around the world, including an extended one to Paris and London to celebrate her 21st birthday. According to (a) family friend, the couple has since married,” the story notes
            Meanwhile the cheese had turned Republican, making political donations to GOP candidates”…


    • theartistvvv says:

      A very emptywheelian observation might be that,

      “Smith’s federal indictment also contains a telling anecdote from 11 December 2020 in which Chesebro discussed the need to petition the supreme court to provide cover for the fake electors. Without such cover, he said, the casting of fake votes “could appear treasonous”.”


  13. Kent says:

    Whenever I read the latest compilation of Trump’s (alleged) crimes and obvious obstruction and witness tampering, I wonder anew why he isn’t in pre-trial detention.

    [Welcome back to emptywheel. SECOND REQUEST: Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Thanks. /~Rayne]

    • bmaz says:

      Because there is no even possible reason for pre-trial detention and it is absurd to think so. Most pre-trial detention is stupid, let’s not make the situation worse out of derangement syndrome.

  14. greenbird says:

    i shall not give up. but it would clarify for me if i had some way to obtain the gov’t opp from what court listener tells me is ‘ not found ‘ by case # … 00031, that is.
    “Just over a week later, on February 24, Xitter’s lawyers would include that story in package of media articles it claimed — in its *** reply brief *** to vacate the gag order — showed that DOJ didn’t need to keep the warrant for Trump’s Xitter account sealed any longer.

    That story about how little we knew of sealed grand jury proceedings became part of yet another sealed grand jury proceeding in the investigation into Donald Trump.

    The reply *** motion *** itself made a bunch of claims about how much was known about the investigation, with more links to news articles.”

    i have the whole day, plus tomorrow. i don’t think i canna du more.

    but canna link be shared from some good guys ? found in marcy’s timeline …

    • greenbird says:

      made it. the puzzle pieces are sorted into groups.
      i just need to go outside for a bit and enjoy a beautiful late summer day for all the very many people who can’t — for too many atrocious reasons.

      oh – and to take time to polish my fine-toothed comb, in preparation for next steps.

  15. jdmckay8 says:

    OT. John McPhee is amongst my favorite contemporary writers. Strictly non-fiction, McPhee has the rare ability to write about what, on the surface, appear mundane to most folks… and leaves readers fascinated. I think first book of his I read was in late 70’s: Coming Into The Country. It was solely responsable for my desire to visit & spend some time in Alaska.

    He is a national treasure.

    I’ve read your (Marcy) writings since I 1st stumbled across then around time of Bush vs. Gore. Stood out then, and have read your “stuff” ever since (and donated too). I’d get busy for a year or 2/3/? and only do quick cursory reads limited by time constraints, but always came back. Comment lightly for most part, and enjoy occasional joust with bmaz just to keep him on his toes. [g]

    This time around here, a little different. Different because I read everything here now (not just topics I have interest in). And I find myself often doing so because, even on some of your topics that aren’t on my front burner become… fascinating. Like a McPhee read. Often my wife, Ping (good English speaker w/strong Shanghai accent), will shout across the house: “Jim, dinner is ready!”

    I shout back: “Start without me, I’m reading.”
    Ping: “NOW!!! Wheeler can wait until after dinner.”
    “Yes dear, be right there.”

    Ping and Marcy are almost always right. :)

    Other commentors here now say similar things regularly. I never used to see that before. I’ve referred a lot of people here, after having been asked about stuff I often speak about that you write about… always recommend they read for themselves. A number of them have come back, especially last couple years, and said these same things in their own words.

    In my mind these days, you also are a national Treasure. I hope and pray you have a full, healthy and very satisfying life. Very much respect.

    • RipNoLonger says:

      I really enjoyed seeing your reference to John McPhee. I hope I have almost all of his books on my shelves, but they get permanently lent out frequently. Marcy and John are treasures and it’s hard to break away. Although I frequently refresh one of the EW posts to see new comments that may have arrived during dinner or overnight. Thanks to the very fine moderators who keep this running!

      • P J Evans says:

        The appropriate McPhee for tomorrow and Monday: Los Angeles Against the Mountains: It’s in “The Control of Nature”.

        • RipNoLonger says:

          Thanks – I actually haven’t read that.

          But also recommend most of Wallace Stegner. Guess there are too many to make this a book fan club….

        • jdmckay8 says:

          Apt. :)

          For Rip: it’s everything there is to know about the flood prevention and drain system on San Gabriel Mtn. Fascinating.

          • P J Evans says:

            The Sunland-Tujunga area, too. That’s where they’ve had the cemetery get washed out. More than once.

      • jdmckay8 says:

        I’ve received a lot of pleasure reading his stuff over the years. I think the last time I did so was around 2010. I was curious when I wrote that comment if he was still at it. Pleased to see (on wikipedia link I put in there) he’s still going strong at 92.

      • jdmckay8 says:

        My pleasure. It’s good to acknowledge people for things well done, probably we don’t do enough of it.

    • -mamake- says:

      100% – I have my own version of what you wrote. I value the time I spend here over any other news source. I cannot believe the range and depth of so many of the regulars as well. So many interesting topics.
      Marcy’s work is truly astounding – I can’t add to what you and others have described in praising MW. This is the go to place to understand this bizarre time we are in.
      But also appreciate the rest of the ew team – Rayne, bmaz, Peterr, Ed, who am I forgetting? I miss Jim White – loved reading his food, animal, and remodeling efforts. Anyway – beginning to ramble.

      I contribute as much as I can but it is not as much as I’d like. If it was ten times the amount it would not equal the value, so a pitch to everyone who perhaps hasn’t donated yet. No better value anywhere else.

      Thank you Marcy and team for making it possible to navigate through these last years with some degree of sanity.

    • greenbird says:

      ‘Uncommon Carriers’
      also fish … first ? … American ? was given as an appreciated gift.
      McPhee is my #1.

    • DrStuartC says:

      Hear, hear! So many of us totally agree with the national treasure status! We come here to read and be more informed about political events over the years, and we come away astonished with the consistent high quality and productivity of Marcy in her work. Her attention to detail, her ability to decode events from the legal paperwork with her decades of experience. Her investigative, insightful, problem solving, puzzle piece fitting mind, is a wonder to behold. Supported by an outstanding group of moderators and contributors, we are all quite grateful to have found this place. Since around 2015-2016, the days of buttery emails, I’ve been deeply appreciative to understand better what’s been going on, instead of being vulnerable to not knowing how full of shit the tv lawyers are. Who knew? Until we know. So, thank you to all involved for making me less stupid. I really really appreciate it!

      Now, where’s that contribution button, and I’ll put my money where my mouth is, as we used to say.

  16. Hart Liss says:

    Mandatory reminder that essentially none — maybe none — of the public knowledge of Smith’s investigations, except for the indictments, have come from leaks from Smith’s office. Which to assertions based on the public record are per sé questionable.
    Also, what’s a reply motion? Is it a reference to a reply declaration? A cross-motion?

Comments are closed.