Donald Trump Confesses He Can’t Distinguish His Own Influence Ops from that of a Russian Spy

To understand the startling confession at the core of Donald Trump’s motion to compel discovery submitted last night, it helps to read a caveat included in Trump’s discovery request, but not included in this motion.

In a letter requesting the same things described in the motion to compel in discovery, Trump’s team admitted it was using a different definition of “foreign influence” than the one he himself adopted in Executive Order 13848 requiring the Intelligence Community to provide a report on any, “foreign interference that targeted election infrastructure materially affect[ing] the security or integrity of that infrastructure, the tabulation of votes, or the timely transmission of election results.”

Rather than just reports of attempts to tamper with election infrastructure to alter the vote count, Trump intended his discovery request to include efforts by foreign governments and non-state actors to influence US policy.

As used herein, the term “foreign influence” is broader than the definition of the term “foreign interference” in Executive Order 13848 and includes any overt or covert effort by foreign governments and non-state actors, as well as agents and associates of foreign governments and non-state actors, intended to affect directly or indirectly a US person or policy or process of any federal, state, or local government actor or agency in the United States.

A vast majority of Trump’s discovery requests claim to need backup about intelligence on potential compromises that could not have affected the election tabulation. Not a single one in the 37-page motion addresses the specific lies the January 6 indictment accuses him of telling:

dozens of specific claims that there had been substantial fraud in certain states, such as that large numbers of dead, non-resident, non-citizen, or otherwise ineligible voters had cast ballots, or that voting machines had changed votes for the Defendant to votes for Biden.

Here are some of the totally irrelevant things Trump is demanding:

  • The classified backup to the 2016 Intelligence Community assessment, which Trump claims was the source of his purported genuine concern about elections that led him to issue Executive Order 13848, when instead he was probably attempting to stave off a law, proposed by Marco Rubio and Chris Van Hollen, requiring stronger election protection measures
  • The backup to the Cybersecurity and Infrastructure Security Agency statement asserting that the election was the most secure in history (which led Trump to fire Chris Krebs by Tweet)
  • Details about the Solar Winds hack, which was made public after the CISA statement, and which is not known to have compromised any election infrastructure, but which Patrick Byrne offered as an excuse in real time to start seizing voting machines
  • Debates about the findings in the 2020 election report ultimately released that pertain to China’s influence operations, not interference operations
  • Details of a January 2 briefing John Ratcliffe gave Jeffrey Clark (which is not described in the indictment), which Trump insinuates is the reason that Clark strengthened language about election irregularities totally unrelated to the things described in the election report, even though — as the indictment notes — Ratcliffe, “disabused the Defendant of the notion that the Intelligence Community’s findings regarding foreign interference would change the outcome of the election”
  • The FISA Court opinion describing improper efforts to query 702 information regarding possible foreign influence — possibly directed at things like Nick Fuentes’ cryptocurrency donation and Charles Bausman’s ties to Russia — which wouldn’t have affected Trump’s lies at all

Not a single one of these items pertains to whether Ruby Freeman added votes in Fulton County, Georgia, whether 10,000 dead people voted in one or another state, whether non-citizens voted in Arizona, whether there was a vote dump of 149,772 illegal votes in Detroit, whether Pennsylvania received 700,000 more absentee ballots than they had sent out.

That is, not a single one of Trump’s main demands pertains to the specific lies he is accused of telling.

This stunt might have been effective if Trump were charged with moving to seize voting machines after the famous December 18 meeting, at which Byrne and Sidney Powell urged Trump to use EO 13848 and the discovery of the Solar Winds hack to seize voting machines. But that’s not in the indictment — the famed meeting is unmentioned. As I’ve previously noted, Powell is only in the indictment for the way in which Trump adhere to her views about Dominion, not for the December 18 meeting. In this request, Trump repeats an earlier request for investigations into Dominion in passing, but focuses his attention instead on Solar Winds.

Instead of asking for evidence pertaining to the actual lies Trump told, Trump argues that because he had the same goal and effect that Russia pursued in 2016 — to erode faith in democracy — it somehow means his own lies weren’t cynical, knowing lies.

Moreover, whereas the Special Counsel’s Office falsely alleges that President Trump “erode[d] public faith in the administration of the election,” the 2016 Election ICA uses strikingly similar language to attribute the origins of that erosion to foreign influence—that is, foreign efforts to “undermine public faith in the US democratic process.” Compare Indictment ¶ 2, with Ex. A at 1; see also id. at 6 (describing “Kremlin-directed campaign to undermine faith in the US Government and fuel political protest”).

The problem is that the lies Russia and Trump told in common in 2020 — primarily a false claim that Joe Biden corruptly fired a Ukrainian prosecutor — don’t have anything to do with the specific lies that Trump told to mobilize thousands of his followers to attack the Capitol.

That both Russia and Trump want to undermine democracy is not a specific defense to the charges against him.

28 replies
  1. Ebenezer Scrooge says:

    What I find interesting about this motion is that it reads as if it were prepared by real lawyers. It invariably refers to the defendant as “President Trump,” but otherwise has very little unprofessional language in it. This is not a judgment on the arguments’ quality. Most of the arguments seem weak. But they’re drafted the way a lawyer would draft them.

    I don’t know what–if anything–this portends. No personal review by Trump, maybe?

  2. Spencer Dawkins says:

    So, as IANAL, I wonder why the Trump team filed THIS list of demands. Marcy notes that there’s no overlap between the demands and the crimes Trump was indicted for. I might have guessed the goal is to clog up the proceedings, as prosecution and defense litigate each demand. Are there other obvious reasons?

  3. Amicus12 says:

    The motion strikes me as fundamentally misguided. The motion (at 1) seeks “information that supports [Trump’s genuine belief that the election was stolen] defense and related statements regarding good faith and the absence of criminal intent.” In other words, the motion seeks information bearing upon Trump’s then present state-of-mind on or before January 6. This means that things he did not know then, which is much of what the motion seeks, are irrelevant.

    Consider for example, the 2020 Election CISA Statement that “there was no evidence any voting system had been compromised.” Trump knew about this statement and contemporaneously claimed it was “highly inaccurate.” Motion at 9 (citations omitted). As regards his alleged good faith and absence of criminal intent, he either possessed information at the time that provided a basis for this claim, or he did not. A fishing expedition into other information underlying the Statement that he was unaware of at that time has no relevance to his state of mind on November 17, 2020.

    Maybe there is something in this hodge podge to which he is entitled, but by and large it seems like an effort to engage in gray mail, chase irrelevant material, and otherwise seek to delay trial. And if the motion is substantially successful (highly unlikely) it provides fodder for speechifying at trial.

    Later, it might be appropriate to wade into my favorite claim in the motion (at 17): “The January 6 protests at the Capitol are irrelevant to this case and, if necessary, will be the subject of defense motions in limine.”

    • Becker0313 says:

      I may be mistaken, however I thought Judge Chutkan has ruled against this motion and told Mr. Trump this was nothing more than a fishing expedition. It could have been another of his motions.

    • 2Cats2Furious says:

      Well said, Amicus12.

      You can almost hear Trump saying: “You think you’re going to charge ME with crimes for election interference? Well, I’m going to use this case to show the election was RIGGED and STOLLEN, just live I’ve been saying [without evidence] for the last 3 years!”

      • timbozone says:

        I ask you—is there a law against furthering a conspiracy…when being tried for that same conspiracy?

  4. Upisdown says:

    In late September 2020, DNI Ratcliffe planted the seed of Russia aiding Clinton during the 2016 election, which John Durham later seized upon as “The Clinton Plan”.

    Earlier that month, Trump’s own Treasury Dept sanctioned Andrii Derkach and others for assisting in passing Russian disinformation to useful idiots like Rudy Giuliani.

    Still, in Oct 2020, Ratcliffe went on record that “Hunter Biden’s laptop is not part of some Russian disinformation campaign”, without actually checking to see if it was.

    So, no matter what John Ratcliffe told Trump and Clark in Jan 2021, he should not be taken credibly as an unbiased informed source regarding the integrity of the 2020 election.

  5. earlofhuntingdon says:

    The second paragraph of Trump’s 37-page Motion to Compel Discovery is laughable, although better written than usual:

    The problem with that approach is that President Trump and others—indeed, hundreds of millions of voters—are not obligated to accept at face value the Office’s politically motivated narrative. It was not unreasonable at the time, and certainly not criminal, for President Trump to disagree with officials now favored by the prosecution and to rely instead on the independent judgment that the American people elected him to use while leading the country.

    It is not Trump’s opinions that constituted crimes. But it was manifestly unreasonable for Trump to continue to act as if he had won the election, after having been told by every responsible official in govt, and many outside of it, that he had lost. That makes his lie that the “American people elected him” in 2020 a cruel lie, as well as circular reasoning.

    • SteveBev says:

      “..Rely instead on the independent judgment the American people elected him to use’

      Is IMHO a particulary pernicious framing.

      It seeks to dignify Trump’s behaviour and decision making as if it was the exercise of independent wisdom, as sanctioned by the constitution and the electorate.

      The sleight of hand in the use of ‘elected’ is clear.

      Whereas, of course, during and after 2020 election period, what Trump indulged in (aided and abetted by a selected coterie of lackeys) was the exercise of personal caprice, the wilful avoidance of proper advice and evidence, manipulation and distortion of information, misuse of the levers of power, all to maintain a grip on power in the face of the true mandate of the electorate.

      I hope and expect the SC will not let this framing pass without adverse comment.

    • The Old Redneck says:

      These Trump briefs are good in one respect: repeated and artful conflation. Having an opinion that you didn’t lose, in this example, becomes the same thing as being innocent of overt and conspiratorial acts.

      But the bigger picture is that Trump has nothing to lose with these requests. If Judge Chutkan denies them, then you scream coverup. If she allows them, then you scream about the government trying to withhold information and being chastised by the trial judge. Either way, you’re shoveling red meat to the base.

  6. 2Cats2Furious says:

    The motion to compel discovery should be read in conjunction with Trump’s motion re: the scope of the prosecution team [ECF 166-1], which was also filed yesterday.

    The latter motion seeks to expand the scope of the prosecution team (that is, the entities required to search for and turn over discoverable information) to include not only the Special Counsel’s Office actually prosecuting this case. No, Trump also wants to include the AUSA for DC (which has prosecuted hundreds if not thousands of J6 cases); the entire DOJ; FBI’s Washington Field Office; the Department of Homeland Security; Department of Defense; Office of the Director of National Defense; the J6 Committee; and the forking CIA.

    It’s another absurd delay gambit from Trump’s attorneys, who keep complaining that they don’t have enough time to review the discovery already provided to them on the 4 counts Trump is actually charged with.

    • earlofhuntingdon says:

      I don’t imagine there’s much precedent or law supporting the proposition that a defendant gets to define the scope of prosecution, that is, who prosecutes him or for what charges.

      • 2Cats2Furious says:

        Agreed. As I said, just another bogus delay tactic, and I don’t see Judge Chutkan countenancing it.

        Smith made the seemingly wise choice to charge Trump – and only him – for 4 felony counts, which do not include incitement. And, as Amicus12 noted above, the issue is what evidence Trump knew at the time of the alleged criminal offenses. That doesn’t warrant a costly, time-consuming fishing expedition for potentially exculpatory evidence from a range of government entities, which likely doesn’t exist and has no relevance to the pending charges.

        I don’t think Trump’s attorneys have crossed the line for violations of 18 USC 3162(b) [sanctions for filing frivolous, meritless motions solely for purposes of delay], but they’re dancing awfully close to it.

  7. earlofhuntingdon says:

    Trump seems to want to expand a narrowly defined prosecution, involving a few charges and prosecutable within a reasonable time – and before the 2024 election – into something so unwieldy, in almost couldn’t be prosecuted. Good luck with that. Chutkan won’t bite, and neither will the DC Circuit. It’s not as if this were the Fifth or Eleventh Circuit. Nor, do I think the Supremes could accept cert. on this sort of case until after a conviction.

  8. vigetnovus says:

    This definitely has the whiff of greymail to me, as the information Trump seeks is likely highly classified and he certainly would not be cleared to see it now. To me, and this actually includes the Roger Stone stuff too, this reads like Trump is trying to find out how CISA, cybersecurity companies like Crowdstrike/Mandiant and the IC writ large did it — how they protected the voting infrastructure in 2018 and beyond. That would be very important to know if you wanted foreign assistance in trying to manipulate the next election.

    • @leemidi says:

      BINGO! He’s still working for VladPutin & this is just a look-see at how they did the work & what might work next time…

  9. earthworm says:

    Focusing on Jan 6 is important, but the backstory seems to be that there was always a plan for a coup.
    The focus of the charged felonies is what happened on or around Jan 6, 2021.

    What is the role in these investigations and prosecutions (for the four felonies) of the known or suspected Trump Campaign’s plan — from far earlier in 2020 — to claim the election was fraudulent?
    The murmurs are the campaign knew trump would lose, and so it began to insinuate, manipulate, and put forth the idea that there was no way trump could lose, unless there was fraud, which would then of course become the basis for insurrection.

  10. rationalthought says:

    Most, if not all of the material trump wants is legally, as well as factually irrelevant. The only Count that deals with corrupt intent is 1512, and for purposes of 1512 the Defendant’s subjective belief is irrelevant. The legal std. is the “objective man” std of reasonably foreseeable. For the life of me I don’t know why the govy’t included motive in its complaint. The prosecution is not required to prove motive, conviction only requires that the act in question have the reasonably foreseeable effect of obstructing a proceeding, regardless of the defendant’s subjective intent. The prosecutorial inquiry is not, the intent to obstruct the proceeding per se, but rather the intent to commit an act that could reasonably be foreseen to have that effect.

    [Welcome back to emptywheel. SECOND REQUEST: Please use the same username AND email address each time you comment so that community members get to know you. This is your THIRD user name; you’ve commented twice as “Bizarro Trump” and before that as “Rational Thought”. Letter case and spacing matter in username. Pick a unique username and stick with it. You’ve also had typos TWICE now in your email address; I’ve corrected this one yet again but in the future your comments may not clear. /~Rayne]

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