“I can get any source on the planet.” The Pre-History of Gal Luft’s Pre-“Whistleblower” Indictment

In this post I noted that Gal Luft — the guy who got James Comer all hot and bothered about having a “whistleblower” confirming his conspiracy theories about Hunter Biden — was indicted on November 1, 2022, before the Republicans even won back the House. The timing alone debunks Luft’s and GOP claims that he was charged as retaliation for coming forward to Republicans.

But he might have been charged even before that.

That’s because the statutes of limitation for many of the substantive charges against him — save the alleged conspiracy to violate FARA — would have expired before he was indicted if he hadn’t fled the country when the person referred in his indictment as co-conspirator-1, Chi Ping Patrick Ho, was arrested in November 2017.

Here’s what the charges, duration, and five year Statute of Limitation looks like for the indictment against Luft.

It seems exceedingly likely that SDNY charged Luft on November 1, 2022 because that’s the day the Statute of Limitations would otherwise have expired on the headline charge: the conspiracy to get James Woolsey to act on behalf of CEFC by using Luft’s NGO as a cut-out.

But the five year Statutes of Limitations would have started expiring on the other substantive charges starting in November 2020.

DOJ could still indict Luft on those charges because — as they allude to in the indictment — once his alleged co-conspirator Patrick Ho was charged in November 2017, he fled the US and never returned.

Since the arrest of an associate (“CC-1”) on different U.S. charges in mid-November 2017, LUFT has remained outside the United States.

The known Luft docket doesn’t show any complaint prior to the indictment. But SDNY doesn’t always include prior charges in the prosecution docket (note, for example, that the Oleg Deripaska docket starts with a superseding indictment as document number 1, thereby hiding the timing and content of the prior indictment).

But if DOJ wanted to preserve those other charges until such time as they indicted on the last-expiring one, they might have obtained one or several serial complaints charging them, in case Luft ever happened to fly into the US unexpectedly, which would otherwise have cause those Statutes of Limitation to expire. If that’s right, then SDNY may have started charging Luft as early as November 2020, with more controversial charges involving Iran and Libya the following year.

With that in mind, I want to look at what the Patrick Ho prosecution — Luft’s alleged co-conspirator in counts 1 and 2, as well as Hunter Biden’s associate and legal client through the beginning of Ho’s own prosecution in 2018 — says about the investigation into Luft.

Based on search warrant return dates, DOJ appears to have obtained probable cause against Ho by June 20, 2016 — possibly based off a FISA warrant noticed during the prosecution. Before his arrest, DOJ continued to obtain Ho’s cloud communications at least through March 6, 2017 — meaning they were collecting communications Ho had with Luft during the period he was cultivating the Woolsey deal, and would have been collecting emails with Hunter Biden, except — unless I fucked up the search — none of the noticed email accounts show up in the MarcoPolo set.

While it’s clear CEFC did use charity to try to cultivate Hunter Biden, it’s not entirely clear what role Ho’s NGO played in that process (or whether Hunter had direct involvement with it). It’s worth noting on this point, charges against the Chadian whom Ho was convicted of trying to bribe were dropped. And Woolsey is not known to have been charged, in part because the Chinese payments to him were too well laundered through (allegedly) entities like Luft’s own NGO — likely the same reason why Tony Podesta wasn’t charged for involvement in Paul Manafort’s Ukrainian influence peddling.

Ho was first charged by complaint on November 16, 2017, then arrested as he landed in JFK two days later. On his arrest, the FBI took possession of six USB drives, at least two phones, and an iPad, all of which they presumably searched.

In the wake of Ho’s arrest, DOJ took other overt steps, which they cited in a detention filing to describe how much more they learned after Ho’s arrest. Those steps including interviewing witnesses, executing search warrants — including for Ho’s Virginia NGO, and subpoenaing documents from third parties.

The government first publicly mentioned the arms and Iran conduct subsequently charged against Luft in an October 2018 motion in limine. Because Ho seemed to be preparing to claim his involvement in Chad and Uganda — the two countries he was charged with attempting to bribe — involved charity, a defense that would have skirted aspects of the charged crime, Foreign Corrupt Practices Act, the government argued they should be able to introduce evidence that Ho was pushing CEFC business, not just charity.

On October 2014, the defendant sent his assistant an email stating, “I am going to BJ [i.e., Beijing] this Friday to see [the Chairman of CEFC NGO and CEFC China] on Sat afternoon. The documents I want to send him before hand in separate items are: . . . 7. Iranian connection (brief).”4 On the same date, the defendant sent his assistant another email, attaching a document, which stated, in pertinent part:

7) Iranian Connection . . . Iran has money in a Bank in china which is under sanction. Iran wishes to purchase precious metal with this money. The precious metal is available through a Bank in HK which cannot accept money from the Bank in China which holds the money but is under sanction. The Iranian agent is looking for a Chinese company acting as a middle man in such transactions and will pay commission. (details to be presented orally) The Iranian connection has strong urge to establish trading relationship with us in oil and products . . . .

The following year, in June 2015, the defendant received an email that stated, in pertinent part: “The Iranian team will arrive in BJ . . . . See the attached.” The attachment referenced in the email was a PowerPoint presentation entitled “Presentation to Potential Partners Iran Petroleum Investments.” The next day, the defendant forwarded the email to his assistant, stating, “For writing report to [the Chairman of CEFC NGO and CEFC China].”

The following year, in June 2016, the defendant emailed another individual, blindcopying his assistant, and stated, in pertinent part, “Will get [two executives of CEFC China] to meet with [oil executive at company with operations in Iran] in BJ, and [another individual] also on another occasion if he comes. You can start organizing these. . . . Other matters ftf [i.e., face to face].” [paragraph 78]

[snip]

The defendant also sought to and did broker arms transactions unrelated to the Chad and Uganda schemes charged in this case. For example:

In March 2015, an individual sent the defendant an email, stating, “I have the list and end user agreement. Pls advise next step.” On the same day, the defendant replied, in pertinent part, “Find a way to pass them onto me and we can execute that right away[].” The individual replied, “Attached. [W]e have the funding and processing mechanisms in place. If it works nice there will be much more. Also for S. Sudan.” The attachment to this email was a document entitled “End User Certificate,” certifying that the user of the goods in question would be the Ministry of Defense of the Republic of Libya. The goods listed on the document included numerous arms. [paragraph 48]

The following month, the defendant sent an email that stated in pertinent part: “It so turns out Qatar also needs urgently a list of toys from us. But for the same reason we had for Libya, we cannot sell directly to them. Is there a way you could act as an intermediary in both cases?” The person whom the defendant emailed replied: “Qatar good chance bc there is no embargo. Libya is another case bc going against an embargo is tricky.” The defendant responded: “Qatar needs new toys quite urgently. Their chief is coming to China and we hope to give them a piece of good news. Please confirm soonest.” [paragraph 48]

As linked above, several of the documents described in this motion describing “other uncharged conduct” are documents listed in Luft’s own indictment. Given that he fled upon Ho’s arrest, he seems to have recognized the threat to himself at that point, in 2017. If not, the public docketing of these documents should have made that clear.

The government repeated these references to communications with Luft — among other places — in their sentencing memorandum for Ho, submitted on March 18, 2019, just days before the meeting with Luft in Belgium.

So Luft was on notice about this part of the criminal investigation into him when he arranged that meeting and pitched dirt on Hunter Biden. The meeting was literally days after Ho was sentenced on March 25, 2019.

SDNY didn’t charge Ho with either of the conspiracies in which he is named as Luft’s co-conspirator, even though their understanding of the arms control conspiracy was well-advanced by the time of his trial in November 2018. He remained imprisoned in the US until June 8, 2020, well over a year after the interview with Luft, after which Ho was deported to Hong Kong. Admittedly, that was the height of the pandemic and Ho was already 70, and so would have been difficult to keep jailed.

But the timing of Luft’s meeting with the SDNY and FBI — literally days after Ho’s sentencing — suggests that SDNY took that opportunity to advance the several overt prongs of the investigations against him, regardless of what dangle — true or not — about Hunter Biden Luft offered. They had already, publicly, made clear they believed it was criminal conduct.

Luft was on notice about that before the Brussels meeting and, as alleged in the indictment, he lied about the arms control scheme and discussions with Iran.

It probably would have been easier to extradite him from the US Embassy in Brussels than it would from Cyprus, so clearly SDNY wasn’t ready to arrest him yet.

There’s no False Statements charge in the indictment pertaining to Woolsey, however, so it’s unclear whether the FBI asked Luft about that.

Trump’s Criminal Division head, Brian Benczkowski, took credit for the Ho sentencing (and may have had to approve the meeting with Luft). So it seems likely even Bill Barr’s DOJ were fine with those two prongs of the Luft prosecution.

The Woolsey allegation, of course is a different matter.

So, too, might another one be.

Count 7 of his indictment charges Luft with violating sanctions against Iran. It starts, as such charges do, with an explanation of the IEEPA authorizing such sanctions, generally. It spends six paragraphs describing the sanctions regime against Iran. It spends eight paragraphs describing the charged conduct involving Iran. Then, before the two paragraphs charging Luft for evading Iran sections, his indictment includes this paragraph:

80. Several months later, on or about October 10, 2016, CC-2 emailed GAL LUFT, the defendant, that CC-2 had a Chinese client who needed Russian oil, which LUFT confirmed he could help provide: “I just got off the phone with Russia. They have this.” Forwarding this email to CC-1, LUFT wrote: “If [CC-2] really has this client we need to grab it. This is exactly what we need. . . . I can get any source on the planet.”

That’s not related to the current charges (though if Luft continued to pursue business with Russia, particularly after 2017 and 2022 sanctions, those might amount to IEEPA sanctions violations as well). But it suggests DOJ’s interest into Luft may extend beyond China.

Hunter Biden’s Uber Connection and the K Street Collision

On December 3, 2018, at least per emails in the MarcoPolo set at BidenLaptopEmails dot com, Hunter Biden accessed his Uber account by logging in using his phone, but logging in through what appears to be a Comcast connection in Newburyport, MA, where he was getting treatment from Dr. Keith Ablow.

I found this request as part of my effort to figure out which iCloud accounts were run by which devices during the period — roughly January 14 to February 15, 2019 — when his digital life was being taken over and packaged up as part of a huge political hit job to be used against his father the following year.

It was surprisingly common for Hunter Biden to access Uber by logging in using a browser from a Mac computer, not the phone app. I’m not an Uber user, but isn’t the point that the service relies on tracking you via your phone and its location data?

But when Hunter Biden logged into Uber using his phone, the normal way, he appears to have used his cell service. Again, the normal way.

But on December 3, 2018, Hunter Biden logged into Uber using some Comcast network — not his cell service — in Newburyport MA, in the town but not the exact location where Dr. Ablow’s practice was; this also appears to be a different location from where Hunter would stay in January, as well.

As I laid out in this post, there were several instances during the period where Hunter Biden appears to have been getting his digital life hacked where his communications didn’t connect, starting with an exchange in January 2019 that Keith Ablow facilitated, in Hunter’s first known email to the shrink. It was an exchange asking two doctors for assistance. Hunter asked at one point, “Guys are you getting my emails?,” and contrary to Ablow’s assurances, it appears they were not. If Hunter wasn’t accessing his cell service in this period, that might help to explain why he was sending messages that their recipients weren’t getting.

But this Comcast log-in to Uber is notable for several other reasons.

Around February 13, 2018, Hunter had added his rhbdc iCloud account — the account believed to be taken over a year later — to his Uber account; prior to that his account was exclusively registered to his rhb iCloud account — the account that would be exposed via an encrypted phone backup available through iTunes. For most of 2018, Hunter Biden’s Uber account was common to both of those iCloud accounts. Both emails would get a notice whenever he used the service.

On December 1, 2018, the password was changed, with notice to just the rhb account. There were a bunch of rides on December 3, paid by Venmo (Hunter’s Venmo had definitely been compromised earlier in 2018, but that’s for another post), the Uber receipts for which don’t appear to be in the MarcoPolo stash of emails. On December 3, the rhbdc account password was changed. There was one ride on the rhbdc Uber on December 3 in Newburyport, the same location where the password had been changed.

But from December 3, 2018 through at least February 8, at least per the emails that ended up in the MarcoPolo set, just his rhbdc iCloud account was getting notices from Uber. The first trip showing that Uber had been set back to the way it had been was on February 19, 2019. Then, in the very last days of this email set, following new devices being added to Hunter’s Uber account, three or even four receipts show up.

Some of the rides during this period are pretty interesting, too — such as a 50-minute, 15-mile drive (with no wait time) to go .1 mile around the corner on a key day of the account takeover.

And while it doesn’t show up in the emails, per Gus Dimitrelos — the forensics guy who did a long report for Washington Examiner — the iPhone XS that would be stored to iTunes (registered to the rhb iCloud) had an Uber account showing a modified date on November 22, 2018, a created date of January 22, 2019 — right in the thick of events, and an accessed date of February 3, 2019. I don’t believe those Uber events show up in the MarcoPolo set, even though the set includes emails from both the rhb and rhbdc iCloud accounts and so should reflect changes made on the rhb Uber account.

Among other things, by splitting these two Uber accounts, you might show “Hunter Biden” in two different places at one time. Imagine, for example, if the “other intelligence” the IRS used to justify obtaining the laptop from Mac Isaac was just one of two Uber accounts showing him to be in Delaware?

The possibility that a digital or even physical Hunter Biden was in two places at once in this period brings me to a story about Lyft.

In addition to Hunter’s failed attempt to email two doctors in early January 2019, this post describes a few other communication disconnects in this key period.

  • He failed to respond to Ablow’s practice manager when she tried to respond to his droidhunter88 account on January 15
  • On January 18, Ablow entirely rewrote a statement for Vanity Fair in such a way that Hunter’s attorney George Mesires — who appears to have passed it onto the magazine — would not have realized it

Metaphorically, at least, Hunter Biden was not publicly speaking for himself in this period.

But there’s one more potential communication disconnect from this period.

On January 24, 2019, an Ablow associate, Greg, had a meeting with Hunter Biden at which (per an email the associate wrote memorializing the meeting), it was decided that Greg would be Hunter’s “Chief of Staff.”

The email memorialization had a list of things Greg was going to do, including communication with two of Hunter’s kids and his lawyer.

And his father’s assistant.

Among the things on the list — right next to sky diving and flying lessons ASAP — was a note to talk to Katie Dodge: “ski’s and gear – need phone number and address to ship to.”

Katie Dodge was Hunter Biden’s long-time personal assistant, who already was doing the administrative things on this list, though not the flying lessons and sky diving. Dodge was doing those administrative things for income less than half of what Greg proposed he should be paid, to do what Dodge was already doing (again, less the flying lessons and sky diving).

On January 29, 2019, five days after this meeting at which Greg made himself Chief of Staff in charge of contacting Dodge about skis and boots — per SMS texts published by Dimitrelos — Dodge wrote Hunter and asked him about paying for his storage facility. At least per the published SMS texts, this was the first she had spoken to Hunter via SMS text since October 2018.

After an exchange about the storage facility, Hunter asked whether she could get his skis and boots and send them to him, “here,” by context, in MA.

Can you get my ski bag- and ski boots – from storage. Fed-ex can pick them up and deliver here or there’s another company that does that and I can get them if someone puts skis and boots where they can pick up.

She seemed surprised by the request, and asked if they had previously been at K Street. She agreed to go get the skis — but noted that would require paying the overdue storage bill — and asked where she should be overnighting them.

Also what resort do they need to go to? What are the dates?

Hunter had no idea where he’s going to be using these skis that he asked her to overnight to MA.

I have neither.

She appears to have sent them, because on February 8, 2019, she asked,

Did you receive your skis?

This SMS conversation — focused largely on paying bills — went on for almost two more weeks. Then, on February 20 (the day after Hunter’s Uber account was restored to the way it had been before December 3), in response to a question about a particular financial change he said he wanted to make, which they had already discussed on February 15, Dodge asked if he had made the call to make that happen.

He seems to have missed that instruction entirely — because of “limited access to communications on all forms.”

No didn’t ! I’ve got limited access to communications on all forms

Then — in what seems like a muddled voice-to-text transmission — he asked her about the skis that she appears to have retrieved from storage by February 8, as if he doesn’t know that.

Ivan you get the skis done I’ll send you a dress tomorrow

She already sent the skis somewhere, but he was offering to send her the address in MA “tomorrow,” so on February 21.

I’m interested in the skis and Dodge’s efforts to retrieve them from storage in the DC area and her follow-up about them on February 8 because one of the things in unallocated space that someone tried to delete — again, per Dimitrelos’s reports — were the February 7, 2019 texts and collision report from a Lyft driver who apologized to “Mr. Biden” for the collision they had had the previous evening, February 6, at roughly this ridiculous part of K Street in Washington DC.

Hunter Biden’s long-time assistant wrote him on February 8, asking if he got the skis she made significant efforts to send him from the DC area to MA a week earlier, with absolutely no awareness that Hunter — or someone presenting as Hunter Biden — was on K Street, side-swiping or getting side-swiped by a Lyft driver.

Now, certainly, it was possible that Hunter Biden drove from MA to DC to be present for a car accident on February 6, 2019. Maybe the trip — by whomever — served to pick up those skis.

But neither he nor his personal assistant seems to have had any clue that that had happened.

Update: After several tries, I’ve taken out errors regarding when the Uber for the XS was set up. Thanks to zscoreUSA for the persistence.

Related posts

The Laptop Everyone Knows as Hunter Biden’s Appears to Have Been Deleted Starting February 15, 2019: This post describes a number of the events that occurred in the key time period, and has a timeline that will have to suffice until I tidy up an updated one.

Gary Shapley and Hunter Biden’s Colleague Named “Z”: One thing that happened in the key period in 2019 is that Hunter Biden’s contacts were restored — which creates the possibility that the publicly released contacts reflect alterations.

Hunter Biden’s Matryoshka Cell Phone: How the IRS and Frothers Got Hunter’s Encrypted iPhone Content: The “laptop” as we know it appears to be the entire iCloud of one Hunter Biden account and a phone containing another iCloud account saved — during the period of compromise — to his iTunes account.

Keith Ablow’s Unallocated Space in Hunter Biden’s Memory: When Hunter Biden went to Newburyport, MA to get Ketamine treatment from Fox News personality Keith Ablow in early 2019, he had a series of communications failures that prevented him from speaking to others directly.

Jay Bratt to Chris Kise: You Already Made that Frivolous Presidential Records Act Argument

This post talks about the government’s legal argument against delay in the Trump stolen documents case. This other post talks about the filing’s description of the evidence in the case. 

My favorite part of the government’s reply to Trump’s request to put off his Espionage Act trial indefinitely comes in how they rebut Trump’s argument that there are novel issues that will require more time.

DOJ dismisses Trump’s suggestion that there’s a question about whether the Special Counsel could prosecute him by pointing to the appeal from the key witness protecting Roger Stone, Andrew Miller.

In re Grand Jury, 916 F.3d 1047, 1052–54 (D.C. Cir. 2019), the D.C. Circuit held that a special counsel appointed by the Attorney General has the authority to investigate and prosecute federal crimes.

More hilarious is the way they dismiss the claim that Trump needs a lot of time to make the Presidential Records Act argument he lifted from (noted non-attorney) Tom Fitton. They do so in several ways: noting that the argument really isn’t going to work and that even if they want to try it, the only thing they need to try is the indictment.

But then they note that Trump, with one of his existing counsel — Chris Kise, already made that argument, before Judge Cannon.

As for the impact of the Presidential Records Act on this prosecution, any argument that it mandates dismissal of the Indictment or forms a defense to the charges here borders on frivolous. The PRA is not a criminal statute, and in no way purports to address the retention of national security information. The Defendants are, of course, free to make whatever arguments they like for dismissal of the Indictment, and the Government will respond promptly. But they should not be permitted to gesture at a baseless legal argument, call it “novel,” and then claim that the Court will require an indefinite continuance in order to resolve it.

[snip]

As with any pretrial dispositive motion, all that is necessary is the Indictment—which the Defendants have had for over a month. And in fact, Trump (including his current counsel) has already briefed in this Court a variation of this argument. See, e.g., No. 22-CV-81294-CANNON, ECF No. 171 (filed Nov. 8, 2022). The legal issues Defendants raise do not justify deviation from a speedy trial date, much less open-ended deferral of considering one.

Jay Bratt went easy on Trump: He doesn’t bother reminding Kise (and Aileen Cannon) how that worked out before the 11th Circuit the last time they tried it.

Ultimately, though, the core nugget of the filing is this: The Speedy Trial Act requires a judge to set a trial date.

Any discussion of setting a trial date must begin with the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161–3174 (the “Act”). The very first sentence of the Act forecloses Defendants’ proposal here:

In any case involving a defendant charged with an offense, the appropriate judicial officer, at the earliest practicable time, shall, after consultation with the counsel for the defendant and the attorney for the Government, set the case for trial on a day certain, … so as to assure a speedy trial.

18 U.S.C. § 3161(a). The Defendants chide the Government for seeking an “expedited” trial (Resp. at 1, 2, 8), but in doing so they have it exactly backward. A speedy trial is a foundational requirement of the Constitution and the United States Code, not a Government preference that must be justified. See U.S. Const. amend. VI; 18 U.S.C. Ch. 208 (captioned “Speedy Trial”).

[snip]

“That public interest cannot be served, the Act recognizes, if defendants may opt out of the Act entirely,” id., which the Defendants effectively try to do here by requesting an indefinite adjournment of the trial, for a minimum of some fifteen months.1 See Barker v. Wingo, 407 U.S. 514, 519 (1972) (noting the “societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused.”).

This filing doesn’t get very deep into Trump’s claims about the election. It side-steps the issues I pointed to — voters’ need to know whether Trump reneged on the promises he made the last time he got elected. It acknowledges picking a jury may be tough but says that’s good reason to get started on it earlier. It even notes that Trump’s busy work schedule, like those of a lot of powerful people charged with a crime, is not an excuse to put off trial indefinitely.

[T]he demands of Defendants’ professional schedules do not provide a basis to delay trial in this case. Many indicted defendants have demanding jobs that require a considerable amount of their time and energy, or a significant amount of travel. The Speedy Trial Act contemplates no such factor as a basis for a continuance, and the Court should not indulge it here.

While I find several of these arguments persuasive, ultimately, it’s unclear whether this filing will work. We’re at the point where we’ll get the first hint of how Judge Cannon plans to approach this case.

But by laying out that she cannot do what Trump has asked, simply delay the case indefinitely, it simplifies her choices.

Keith Ablow’s Unallocated Space in Hunter Biden’s Memory

In the third part of Gus Dimitrelos’ report* on the laptop attributed to Hunter Biden, he examines what he could find in the unallocated space of the laptop — the place where deleted files go on computers until they eventually get written over. He does it, in laymen’s terms, to prove that there was someone at the keyboard of the laptop, deleting individual files by hand, which he claims (falsely) is proof that, “Robert Hunter Biden is in control of the MacBook Laptop.”

He shows remarkably little interest in what got deleted.

At least two of the files deleted from the laptop pertain to the therapist from whom the President’s son was getting Ketamine treatment during the period his digital life appears to have been taken over, Keith Ablow, and in whose office the DEA discovered different laptop owned by Hunter Biden in 2020.

According to two people familiar with the matter, a different Hunter Biden laptop landed in the custody of the DEA in February when they executed a search warrant on the Massachusetts office of a psychiatrist accused of professional misconduct. The psychiatrist has not been charged with a crime.

Hunter Biden was not a target of the search or the investigation, and his lawyer ultimately got his laptop back. It’s not clear why his computer was left in the doctor’s office.

Who is Keith Ablow?

One enduring mystery about the “Hunter Biden” “laptop” affair is why the son of a top Democrat ended up doing Ketamine therapy with a Fox personality just weeks short of allegations that the shrink had sexually harassed patients, an accusation that would lead to his suspension.

Ablow’s career on Fox extended back years by the time in 2018 when Hunter Biden got involved with him. He made obnoxious comments both about the Obamas and marriage equality and a ludicrous pitch in favor of Newt Gingrich. There’s no reason a Democrat should ever have trusted him.

And then, shortly after the time when Hunter Biden’s digital world appears to have been taken over by his droidhunter Gmail, several lawsuits accusing Ablow of sexual harassment went public.

The women allege that Dr. Keith Ablow, an author who was a contributor to Fox News network until 2017, abused his position while treating them for acute depression, leaving them unable to trust authority figures and plagued with feelings of shame and self-recrimination.

“He began to hit me when we engaged in sexual activities,” wrote one plaintiff, a New York woman, in a sworn affidavit filed with her lawsuit. “He would have me on my knees and begin to beat me with his hands on my breasts,” she wrote, “occasionally saying, ‘I own you,’ or ‘You are my slave.’”

The malpractice lawsuits, two of them filed on Thursday in Essex Superior Court and a third filed last year, paint a picture of a therapist who encouraged women to trust and rely on him, then coaxed them into humiliating sexual activities, often during treatment sessions for which they were charged. When the New York woman had trouble paying her therapy bills, she said, Ablow advised her to work as an escort or stripper because the work was lucrative.

The three lawsuits were settled. But as a result Ablow’s medical license was suspended. As noted above, for some reason the DEA searched his office a year later, where they found yet another Hunter Biden laptop left behind.

Update: Here’s a picture of Ablow speaking at a Trump rally in MA on March 4, 2017.

 

Deleting Ablow

In fact, the accusations against Ablow were one of two things that Dimitrelos found in the unallocated space of what would have been the laptop.

On February 25, 2019, Hunter Biden texted someone else a link to the BoGlo report on the accusations, which had been published four days earlier. “My psychiatrist,” Hunter Biden explained in a follow-up text. “I can’t catch a break,” he said in the third. If authentic, these texts appear to capture Hunter’s immediate response to the abuse allegations, and the four-day delay in his discovery of them.

That someone would delete those is interesting enough.

But I’m far more interested in the other file Dimitrelos found. It was a December 10, 2018 invoice, sent by iChat. It reflected the following psychotherapy sessions with Hunter, which were identified as “New Incident”:

  • November 10, 2018: 90 minutes
  • November 11, 2018: 90 minutes
  • November 12, 2018: 30 minutes
  • November 14, 2018: 60 minutes
  • November 14, 2018: 60 minutes
  • November 15, 2018: 60 minutes
  • November 16, 2018: 60 minutes

It was a three page invoice, but Dimitrelos only shows the first page, so there could be more sessions in the weeks between November 16 and December 10, 2018. All sessions were paid by credit card within days.

But even just that single page shows that Hunter was spending time with Ablow in the period when he obtained new devices — including the laptop believed to be the one that ended up in John Paul Mac Isaac’s shop.

It’s easy to see, then, how and when Ablow might have come into possession of a Hunter Biden laptop and Hunter Biden might have started using the new one that would end up becoming a big political hit job.

[Update: I corrected my timeline here. Hunter Biden started using the laptop believed to be the one brought to Mac Isaac’s shop in October, not November.]

Baystate or Bluewater

Dimitrelos says the invoice, “correlates [with] email communications with Keith Ablow and the Practice Manager.”

But the invoice doesn’t. It differs with the emails we see with Ablow and his practice manager, a woman named Tiffany Bartholemew, as they appear in the BidenLaptopEmails dot com collection, in at least one key respect. The bill is from “Bluestate Psychiatry.” But Bartholomew writes from “Bluewater Wellness.”

The discrepancy may arise from a difference in treatment: and therefore also payment schemes. Of the emails related to Ablow sent by Hunter, about a dozen had to do with accommodations, including:

  • Emails Bartholomew sent on December 4, 2018 (and so before the invoice) about payment for “this week” at Plum Island Rental
  • The confirmation for that reservation, sent the same date as the invoice, to the rhbdcicloud and cc’ed to Bartholomew, followed by one sent on January 3, not cc’ed to Bartholomew, providing instructions for getting in
  • An email sent on January 26 from the “manager of Dr. Ablow’s cottage”
  • Seven emails from a guy who seems to have made himself Hunter’s Chief of Staff at a meeting on January 24, all of which pertain in part or in whole to finding a new place in Newburyport, MA

Those were all sent to the rhbdcicloud. Another email from Bartholomew, sent to the same email, alerted Hunter to a rescheduled Yoga session while in Massachusetts.

There were several other more curious emails involving Bartholomew:

  • An email sent on January 5, 2019 to rhbdc at me.com, seemingly asking Hunter for advice about how to deal with an insane temp leaving adverse reviews on Google
  • An MP4, dated January 8, 2019, titled Neverending story, sent first via Google Drive from a Gmail account, then forwarded the next day from her Ablew email account, both times to the rhbdcicloud

In this same period, Hunter paid someone with the last name Bartholomew but a different first name, via Venmo, for purchases at CVS, using his rhbrspdc account.

Guys are you getting my emails?

But several of the emails demonstrate Hunter’s communication woes during this period.

The very first email from Hunter Biden to Ablow in the Marco Polo set, sent on January 3, 2019, was misaddressed, and bounced. It was sent again, with the subject line “yyyy.”

While no body of that text appears in the Marco Polo set, Ablow responded to it, adding a third person, Rock, and asking for help getting a doctor to review Hunter’s daughter’s x-rays from a bad skiing accident.

Hunter responds, saying he is attaching the x-rays (and reply emails show jpg attachments):

I am attaching the X-rays and would so much appreciate your helopmputting [sic] them in the right hands.

Hunter and Ablow exchange two emails among themselves.

Then Ablow responds to his own email, which this time is marked [External], noting that “His [apparently meaning Hunter’s] email is screwed up,” and then saying he had texted Rock.

From: Keith Ablow <kablow[redacted]>
Sent: Thursday, January 3, 2019 11:40 AM
To: Positano [redacted]; rhbdcicloud
Subject: [EXTERNAL]Re: From Keith

CAUTION: External Email.

Rock
His email is screwed up

I texted you

The doctor responds — happy to help — and provides his contact. Ablow thanks him. Hunter responds to that, plaintively,

Guys are you getting my emails?

And though neither of the external interlocutors ever said a thing directly to Hunter, Ablow says, yes, suggesting they had gotten his emails, then instructs Hunter to contact the doctor and “send him the x-rays,” even though in the original email Hunter already sent 2 jpgs.

Hunter then tried to email the doctor directly, using the same email included in Ablow’s email (possibly even using the link from the doctor’s own email), and it bounces, “RecipientNotFound; Recipient not found by SMTP address lookup.”

At least based on the Marco Polo set, Hunter Biden didn’t send much between then and January 15 (though I may return to what he did send; he had important exchanges with his lawyer George Mesires).

Then he had another communication failure with Ablow’s team, though apparently of a different type.

On January 15, 2019 at 11:13AM, Hunter sent Ablow’s practice manager, Bartholomew. an email from his droidhunter account, asking “Schedule?” The email itself appears in the MarcoPolo collection, but any other body of the email is not preserved.

Bartholomew responded, on January 15 at 11:19PM, to the droidhunter account, describing his schedule for both “today” (seemingly meaning January 15) and “tomorrow,” his Ketamine treatment on January 16.

Then, just under 3.5 hours later, she sent that same email again, to both the droidhunter and rhbdcicloud with the message:

Below is the response I sent within minutes of receiving your email.

I called you this morning
Both Keith and I texted – I, multiple times, both on the group text and solo
I tried calling
I had Jodi text and call and you did not answer until 2pm

I texted you after sending the below email and mentioned adding yoga on for tomorrow – I did not receive a response and I will not waste people’s time booking them if you do not stay in touch

Bartholomew appears to have attributed this to Hunter’s mental struggles, and it may well have been (though it is notable since it is the sole exchange with her involving the droidhunter email).

The reason people love my Dad Chris iOS because he’s the son they hope to raise

The questions about whether Hunter was communicating externally — to say nothing of the effect of the Ketamine treatment, which by context would have been January 16 — makes me really uncomfortable with what happened with a statement Hunter Biden shared for this Vanity Fair story on whether Hunter’s problems were leading Joe to hesitate about running.

The exchange starts with Hunter forwarding an email he sent to Doug Brinkley on his rosemontseneca email to Ablow, using his rhbdcicloud email, with his long and very rough draft of a statement.

Ablow asks if he wants edits.

I could also make a few other edits, with humility. Would you like me to?

Hunter responds by saying it needs both edits and to be more concise. So Ablow promises to do it overnight.

I can make it all happen by 8 am.

Not to worry.

This is my thing.

Stay tuned.

As that exchange was happening, Hunter sent the statement to his lawyer, George Mesires, via his rhbdcme address. Mesires responded saying, “I can’t stop crying,” but providing no edits.

Hunter sends two snide comments to the journalist to his attorney George Mesires, from the rosemontseneca email, ccing Ablow.

Then ultimately he sends the statement as rewritten by Ablow to Mesires.

“FIXED A FEW OF MY TYPOS . . .” Hunter said of the statement substantially written by Ablow. Mesires would have no way of knowing that Ablow had made all the changes.

Vanity Fair removed one paragraph about Hunter’s own background as well as this significantly edited snide comment to him:

I hope that answers your question, Chris. I would ask this one of you: Are your talents best used as a tabloid journalist? If you were willing to endure more pain to make a more powerful contribution to our shared world, what would you do? What has stood in your way? My father would tell you this: Don’t let it. Reach deep down and deliver the gifts you were meant to give to others. And that’s the message Americans will see come to life in 2020.

At a time when Hunter Biden was in a communications vacuum, just days off a Ketamine treatment, and probably getting his life hacked irreparably, to become the non-stop political hit job of those trying to take down his father, Keith Ablow replaced Hunter’s statement with his own.

In the process Ablow replaced this fairly amazing paragraph about Joe Biden … [I’ve left all typos, including the charming, “iOS” instead of “is.”]

The reason people love my Dad Chris iOS because he’s the son they hope to raise he’s the parent they hope to be he’s the brother and friend we all look up to. They love him Chris because he is as real an American as they are and they all want to be. He’s not perfect’ he’s got a horrible temper, he spoils his grandkids, he loves my Mom almost too much and he still thinks he can still make me angrier than anyone on earth sometimes. There’s nobody I want to make more proud of me than my Dad and there’s no-one that I know can ever be more proud of me and my whole family. May Dad never has asked anyone of us to be less human he’s just taught us all what it means to be a good man in hard world. He taught me what his mom and dad taught him “Always remember no man is better than you and you are no better than you.”if er to break I m certain they would all say —no one will ever know you better than your brothers and your sisters you always take their side no matter how badly they screwed up. Every Biden kid knows there’s nothing that they could do to make anyone in this family to stop loving you. And finally always be kind to the people in pain (unless they hurt your grandmother your mom your aunt or your sister- then you’re free to beat the shit out of them if your sister hasn’t beat you to it.)

With this one:

I believe that my father has become an ongoing symbol of what it means to keep on fighting for what is good in oneself, in others and in our country. I can tell you that I wouldn’t be alive today, if my dad hadn’t kept fighting for me, too, through my darkest days. So the idea that tragedy or tough times or any number of trials would dissuade a Biden from serving his fellow man—whether a friend or a fellow citizen—could not be more misguided. My dad has proven, ag ain and again, that he is (as Teddy Roosevelt once said of himself) “as strong as a bull moose” and that America “can use [him] to the limit.”

There’s no sign Brinkley ever responded to Hunter’s email. Instead, Hunter sent him three emails — one, responding to an email Brinkley sent him in July 2018, saying,

Obviously I didn’t send that stream of conscience rant with personal attacks and 7000 grammatical spelling and plain unintelligible errors made tons of edits and cutout 80%.

A minute later he sent two more responding to the email he had actually sent Brinkley, quoting just the bolded part of this last line of his own second paragraph.

And its made us understand that the one thing that binds us all not just my family everyone you will ever meet is what it is to feel pain and how the even the smallest gesture of genuine kindness and love can make you hope for a better day.

That line about small gestures of kindness, like much else from Hunter’s own statement, had been removed.

It’s not yet clear what happened between Ablow and Hunter — or whether Ablow’s awareness of Hunter’s technical communication problems went further than that single email.

What is clear is that, in the process, Ablow managed to replace Hunter’s own, heartfelt words about his father and his own struggles.


* At least the first of Dimitrelos’ reports is on Scribe. He sent me copies, but would only permit me to repost them (which would take far more redactions) with some kind of indemnity for ongoing privacy violations. I instead reached out to Hunter Biden’s attorneys for permission to share it privately with some experts but have heard nothing.

When “Lock Her Up!” becomes “Wait Till Later!”

Last month, I did a post noting the legal significance of two paragraphs in Trump’s indictment, one quoting Trump’s promises to protect classified information during the 2016 election, and another quoting Trump’s rationale for (pretending to) strip John Brennan of clearance for using classified information for his own gain.

Here’s the paragraph quoting just some of the times Trump used a promise to protect classified information to beat Hillary Clinton.

22. As a candidate for President of the United States, TRUMP made the following public statements, among others, about classified information:

a. On August 18, 2016, TRUMP stated, “In my administration I’m going to enforce all laws concerning the protection of classified information. No one will be above the law.”

b. On September 6, 2016, TRUMP stated, “We also need to fight this battle by collecting intelligence and then protecting, protecting our classified secrets. . . . We can’t have someone in the Oval Office who doesn’t understand the meaning of the word confidential or classified.”

c. On September 7, 2016, TRUMP stated, “[O]ne of the first things we must do is to enforce all classification rules and to enforce all laws relating to the handling of classified information.”

d. On September 19, 2016, TRUMP stated, “We also need the best protection of classified information.”

e. On November 3, 2016, TRUMP stated, “Service members here in North Carolina have risked their lives to acquire classified intelligence to protect our country.”

The two paragraphs played a certain role in proving that Trump understands the import of classified information. But they also, I argued, bundled a public integrity component up inside this Espionage Act trial.

That is, they laid out how Trump himself has argued that voters need to know whether you’re going to mishandle classified information before they cast their votes.

Those paragraphs may come in handy as DOJ attempts to respond to Trump’s opposition to the government’s proposed schedule for trial. Because he is now arguing that he’s too busy running for President to take time out to be tried for stealing classified records.

Note that Trump misrepresents what his filing attempts to do (and few journalists are calling him on it). The filing is titled, “Response in Opposition to the Government’s Motion for Continuance and Proposed Revised Scheduling Order” — that is, it claims to be responding only to the government’s pitch for a December trial. But the first paragraph admits that it is also asking Cannon to entirely withdraw her own orders setting trial in August.

The Defendants, President Donald J. Trump and Waltine Nauta, in the above captioned matter, respectfully request that this Court deny the Government’s proposed scheduling order, withdraw the current Order (ECF No. 28), and postpone initial consideration of any rescheduled trial date until after substantive motions have been presented and adjudicated. [my emphasis]

As we all hold our breath to see how Cannon will respond to this request, understand that Trump has pitched this (smartly, probably), as him against the government, but there’s a tiny chance Cannon will be miffed Trump is downplaying her own authority both here and (as I note below) on picking a jury.

There are many reasonable parts of this filing:

  • Trump argues this case should get complex case designation, leaving a longer time for pretrial proceedings (though he falsely claims the government is asking for an “expedited” trial)
  • Trump states that CIPA is going to take some time
  • Trump claims that this trial will present a number of matters of first impression — or at least matters of first impression for this Circuit (for example, Trump and Paul Manafort, have already lost on Special Counsel authority in DC, but not in the Eleventh Circuit)
  • Trump unsurprisingly calls all the classified designations as “purported,” which reserves the issue for trial
  • Trump describes that jury selection will be onerous (this is one issue on which Cannon has already issued a ruling)
  • While Trump is bullshitting that he’s being tried by his opponent, it is true that there should be as little secret evidence in this case as possible

Much of it is typical defense attorney argument about the need to adequately review the evidence before figuring out where to go next — though this filing pitches what is actually fairly modest discovery, if you ignore the CCTV footage, as a great burden.

The Government anticipates producing discovery in stages due to the sheer volume of documents collected and because of procedural mechanisms necessary to protect against the unlawful production of classified information. The Government produced its “first production of unclassified discovery” on June 21, 2023. 1 That initial production was substantial and voluminous. Therein, the Government produced more than 428,300 records (in excess of 833,450 pages) consisting of approximately 122,650 emails (including attachments) and 305,670 documents gathered from over ninety (90) separate custodians. The initial production also included some 57 terabytes of compressed raw CCTV footage (so far there is approximately nine months of CCTV footage, but the final number is not yet certain).

There’s a hilarious line where the same guy who consented to a discovery vendor to turn some of this very same evidence for a Special Master review before this very same judge less than a year ago now says the use of such vendors will be impossible given the “sensitive and high profile” nature of the case.

Since, unlike most cases, all the discovery materials are sensitive and high-profile, the Defendants are unable to utilize contract or other third-party reviewers to the extent such resources would normally be available.

And Trump pitches a one year investigation as a totally long time — without mentioning that he, with Judge Cannon’s help, caused three months of that duration by demanding a stay in the investigation, to say nothing of his months of obstruction before that.

The Government’s investigation into the matters at issue in the indictment has been ongoing for over a year.

There’s a funny progression where Trump first says his day job running for President doesn’t leave him time to be prosecuted for stealing documents the last time he was President, then admits that he has found time in his busy schedule for two other trials.

President Trump is running for President of the United States and is currently the likely Republican Party nominee. This undertaking requires a tremendous amount of time and energy, and that effort will continue until the election on November 5, 2024. Mr. Nauta’s job requires him to accompany President Trump during most campaign trips around the country. This schedule makes trial preparation with both of the Defendants challenging. Such preparation requires significant planning and time, making the current schedule untenable and counseling in favor of a continuance

[snip]

Finally, previously scheduled trials in other matters for both President Trump and defense counsel make it nearly impossible to prepare for this trial by December 2023. For example, President Trump and Mr. Blanche are preparing for a March 2024 criminal trial in New York Supreme Court; Mr. Kise and President Trump are preparing for a lengthy civil trial in New York Supreme Court commencing October 2, 2023;

[snip]

The pendency of these other proceedings and their collective impact on the ability of defense counsel to prepare effectively for trial also support granting a continuance pursuant to 18 U.S.C. § 3161(h)(7)(B)(ii) & (iv).

But, given that he got elected the last time by promising he would be more careful with classified information than his opponent, the most remarkable paragraph in the filing is this one, where Trump says there is no exigency to scheduling this trial (as opposed to his hush money or corporate fraud trials) before the election.

While the Government appears to favor an expedited (and therefore cursory) approach to this case, it cannot point to any exigency or urgency requiring a rapid adjudication. There is no ongoing threat to national security interests nor any concern regarding continued criminal activity

I suspect the paragraph is designed to elicit a response to the question, “is there any concern regarding continued criminal activity?” That is, I think it is an attempt to probe for what more the government continues to investigate.

And yes, the government may well respond to this by answering, “funny you should mention ongoing threats to national security because we’re still looking for all the things that disappeared up at Bedminster.”

But the underlying premise is even more remarkable, given how Trump’s got elected the last time.

Trump says that there is no exigency in telling the citizens and voters of the United States whether the last time he was President, all the promises he made to get elected were just bullshit, because in fact he used his position of power to steal the nation’s secrets and store them in his chandeliered bathroom.

There is a lot that is reasonable in this filing.

But at its core, it argues that a guy accused of using the access to the nation’s secrets he got by getting elected President on false promises the last time, should get a shot at accessing those secrets again, without first letting a jury decide whether he had abused his position of power the last time.

Trump promised voters in 2016 that he would protect classified secrets; it’s actually a key part of how he got elected. Now he says voters shouldn’t have a chance to find out whether he broke that promise before going to the polls again.

Update: This post originally suggested current Trump lawyer Todd Blanche was on Paul Manafort’s team when he tried to challenge Robert Mueller’s Special Counsel authority. That’s not the venue in which Blanche represented Manafort.

Update: Judge Cannon has reset the CIPA conference for Tuesday afternoon, as all parties had agreed would work.

How Jonathan Swan Covered [Up] John Durham’s Corruption

Something funny happened yesterday.

Full-time Trump-whisperer Maggie Haberman, Trump-whisperer Jonathan Swan, and DOJ reporter Charlie Savage wrote a story responding to Trump’s promise to appoint prosecutors to investigate Joe Biden and his family just like Biden’s own DOJ has done (which they note). They described that if Trump won a second term, he would “appoint an ally who would bring charges against his political enemies regardless of the facts,” then described how Jeffrey Clark and Russell Vought were already working on the plan.

Mr. Trump appeared to be promising his supporters that he would appoint an ally who would bring charges against his political enemies regardless of the facts.

[snip]

Mr. Clark and Mr. Vought are promoting a legal rationale that would fundamentally change the way presidents interact with the Justice Department. They argue that U.S. presidents should not keep federal law enforcement at arm’s length but instead should treat the Justice Department no differently than any other cabinet agency. They are condemning Mr. Biden and Democrats for what they claim is the politicization of the justice system, but at the same time pushing an intellectual framework that a future Republican president might use to justify directing individual law enforcement investigations.

They make no mention of the cases on which Bill Barr attempted to do just that — bring charges against Trump’s political enemies regardless of the facts: Greg Craig, Jim Comey, Andrew McCabe, John Kerry, among others (though Savage has covered them).

The only mention of Barr’s unprecedented past success at politicizing DOJ includes an important error.

Under Mr. Barr, the Justice Department overruled career prosecutors’ recommendations on the length of a sentence for Mr. Trump’s longest-serving political adviser, Roger J. Stone Jr., and shut down a case against Mr. Trump’s first national security adviser, Michael Flynn, who had already pleaded guilty. Both cases stemmed from the Russia investigation.

Barr’s DOJ did not succeed at shutting down Mike Flynn’s prosecution, in which a sentencing memo, approved by Barr’s DOJ, had already been submitted by the time Barr commenced his efforts. Emmet Sullivan was still deciding whether to grant DOJ’s request to throw out Flynn’s guilty plea when Trump pardoned Flynn; and when Sullivan finally did dismiss the case, he reaffirmed Flynn’s guilty verdict.

NYT’s silence about how Trump really overturned Flynn’s conviction, a pardon, carries over generally. These journalists join Kaitlin Collins in warning of future Trump corruption without bothering to catalog or hold Trump accountable for his past unprecedented corruption, the pardons he used to reward those who lied about what really happened with Russia in 2016. That’s the opposite of accountability journalism, warning of future corruption while remaining silent about the similar corruption that already happened.

But the weirdest thing, coming as it does from a team including both Swan and Savage, is that NYT made no mention of the Durham investigation, in which a Special Counsel appointed under Trump literally did, “bring charges against [Trump’s] political enemies regardless of the facts.”

The silence from Savage is unfortunate given that he has done such important work laying out how that’s what Durham did.

Swan’s silence is more inexcusable.

That’s because — as I documented in real time — Swan was absolutely central in disseminating Durham’s unsubstantiated insinuation that a “Clinton/Dem operative” (Durham’s claim itself relied on exaggeration) was behind the pee tape.

Swan’s judgement, a neutral journalist not just magnifying and repeating Devlin Barrett’s shitty reporting on the Igor Danchenko indictment (Barrett said charges, plural, were tied to Charles Dolan and falsely claimed that Durham had alleged Dolan was the source for the dossier, “rather than well-connected Russians”), but adding his judgment that it “doesn’t get much worse,” went viral, accepted as fact.

I pointed that out, with a hot link to his earlier Tweet.

Swan responded. He ignored the clear factual error about Flynn and the point about pardons, but he conceded that his Tweet “is inaccurate.”

So he deleted it, with only this Tweet recording that he did so and no apology to the two innocent men, Charles Dolan and Igor Danchenko, he falsely accused and — with his viral tweet and his considerable credibility as a journalist — led others to falsely accuse, having done so because of the deliberately misleading way Durham had presented his charges against Danchenko.

Most curiously, Swan explained that he, “never covered Durham.”

It’s absolutely true that he never laid out how Durham, a Special Counsel Trump demanded and got, brought “charges against his political enemies regardless of the facts,” as Savage has. Swan never even, as Barrett did, reported on an indictment and misleadingly claimed uncharged allegations in it were charged conduct. Swan wasn’t the experienced DOJ reporter who first fell for Durham’s affirmatively misleading charging document, Barrett was.

But as a journalist, Swan disseminated Durham’s unsubstantiated, uncharged claims, exacerbated by Barrett’s shitty reporting, and people took his report as true. Swan played a key role in leading the public to believe that a prosecutor who charged Danchenko for making a literally true statement to the FBI about his contact with Dolan had instead found something so bad that, “it doesn’t get much worse.”

Perhaps his role was unwitting. But Swan played a key role in helping Durham to make and lead the public to believe in false claims, “regardless of the facts,” precisely the topic that Swan and his colleagues suggest is just a prospective threat from Trump.

And much of the public still believes Durham’s false claims, in (small) part because of Swan’s own actions.

John Durham is going to go before Congress next week and be asked to explain and repeat demonstrably false claims — outright fabrications, in some cases — that he made in his report. Durham will likely renew his claims, made in his report, that Michael Sussmann and Igor Danchenko lied, even though two juries told him that he made those accusations, “regardless of the facts.”

And Swan, who generously describes that, “the pee tape rumors didn’t bear out,” rather than that a prosecutor made the claim “regardless of the facts,” Swan, who believes the topic of prosecutors who make false claims “regardless of the facts” is a topic worth reporting, thinks that deleting evidence of his own role in disseminating such false claims is sufficient, even as Durham continues to do Trump’s bidding of making false claims in real time.

John Durham is precisely the threat that Haberman and Swan and Savage warned about prospectively, but Swan, having played a role in leading the public to believe Durham’s false claims “regardless of the facts,” thinks that merely deleting the evidence that that’s what Durham has done is sufficient.

If the threat of prosecutors charging Trump’s enemies “regardless of the facts” is worth reporting, than Durham’s ongoing corruption must be covered, not covered up.

On Judge Aileen M. Cannon

The New York Times is out with a long, interesting, piece on SDFL Judge Aileen M. Cannon by Schmidt and Savage. I won’t call it a hit piece, but it is extremely negatively framed, and in some regards disingenuously so. For a news article, there is no way not to view it as a position piece.

“Aileen M. Cannon, the Federal District Court judge assigned to preside over former President Donald J. Trump’s classified documents case, has scant experience running criminal trials, calling into question her readiness to handle what is likely to be an extraordinarily complex and high-profile courtroom clash.

Judge Cannon, 42, has been on the bench since November 2020, when Mr. Trump gave her a lifetime appointment shortly after he lost re-election. She had not previously served as any kind of judge, and because about 98 percent of federal criminal cases are resolved with plea deals, she has had only a limited opportunity to learn how to preside over a trial.”

That is the opening salvo. Okay, Cannon is a newish federal judge. So what? You take your federal judges as you get them, not as you want them. Criminal trials are not the only trials federal judges do, they also do civil trials. And complicated criminal hearings, including evidentiary ones, pre-trial that most often lead to pleas. The NYT did not delve into that, to any extent it may exist. The fact Cannon has only four criminal jury trials is not shocking in the least. Importuning that she is incompetent because of that is lame.

In Arizona state courts, I have Rule 10 right to notice a change of judge as a right within 10 days of arraignment or assignment of judicial officer.

There is no such availability in federal court. You get what you get. TV lawyer gadabouts like Norm Eisen are shouting that Cannon MUST recuse, and if not Smith must affirmatively move for her disqualification. Based on a ruling in a short civil matter involving Trump previously. Granted her action in that matter was dubious, to be overly kind. But even the hideous 11th Circuit slapped that down, and she complied with the edict. This is a non-starter, and Smith would be an idiot to attempt it. Attempt that and lose, and you almost certainly would, now you really have a problem.

Would Cannon self recuse? There is no evidence of that to date. My friend Scott Greenfield thinks she should for the sake of her career, while acknowledging there is little to no chance of forcing her off like windbags like Eisen clamor for.

I, which rarely happens, disagree with Scott. It would torpedo her career and be a tacit admission she is a right wing nut job incapable of presiding over any partisan issues. That would not be a good look, does not look like a career enhancer in a jurisdiction like SDFL to me.

Back to the NYT article. It reports:

“But the chances appeared low. Under the Southern District of Florida’s practices, a computer in the clerk’s office assigns new cases randomly among judges who sit in the division where the matter arose or a neighboring one — even if the matter relates to a previous case. Nevertheless, Judge Cannon got it.

That is completely contrary to the facts as I understand them. As I have related in comments previously, anybody who took the job seriously enough to check with the clerk’s office, and current status of the SDFL bench could have seen this coming. Not just as a freak chance, but arguably a likelihood. Smith chose to put his eggs in that basket, and did so.

Another portion of the report literally made me roll out of bed and laugh:

“At the same time, they said, she is demonstrably inexperienced and can bristle when her actions are questioned or unexpected issues arise. The lawyers declined to speak publicly because they did not want to be identified criticizing a judge who has a lifetime appointment and before whom they will likely appear again.”

Seriously?? That describes pretty much EVERY federal judge I have been in front of, irrespective of how long they have been on the bench. This is completely silly land.

Here is another one:

“The Trump case is likely to raise myriad complexities that would be challenging for any judge — let alone one who will be essentially learning on the job.

There are expected to be fights, for example, over how classified information can be used as evidence under the Classified Information Procedures Act, a national security law that Judge Cannon has apparently never dealt with before.”

Seriously? There are a LOT of very experienced federal District judges that have never had to meaningfully deal with CIPA at trial. And most of the ones that have are in DC or EDVA. Again Smith chose this locus, he, and we, will have to live with it. So too should the NYT instead of posting up a somewhat dubious and negative filled report.

The Times report goes on to belittle Cannon’s background and qualification to even serve. But Cannon is nowhere near as bad as many of Trump’s appointments. She is a graduate of Duke and then the University of Michigan Law School. She worked for years at Gibson Dunn and as an AUSA. She is fully qualified, even if you think she should not have been nominated. And the NYT citing “ABA” ratings as still being relevant in any regard seems quaint, at best.

Read the NYT article. I am sure it will inflame your passions. But this is federal court, and the law, where not your passions control things. Am I warm and fuzzy about Judge Aileen M. Cannon? No, not whatsoever, but that is irrelevant. Here is where the issue is, for better or worse. Unless Cannon self recuses, that is where it shall remain.

Jack Smith Knows his Justice Robert Jackson

Justice Robert H. Jackson, lead US prosecutor at Nuremberg

Much is being made, rightly, of the current historical moment: a former US president has been indicted in federal court. Trump and his supporters are trying to position this investigation and indictment as political revenge. Sadly for them, Special Counsel Jack Smith appears to understand the best lessons to come out of the Nuremberg Trials of Nazi leadership after World War II.

The US legal delegation at Nuremberg was led by US Supreme Court Justice Robert Jackson. In his opening statement at the first trial, he acknowledged that the victors in the war were in charge of the trial.

Unfortunately, the nature of these crimes is such that both prosecution and judgment must be by victor nations over vanquished foes. The worldwide scope of the aggressions carried out by these men has left but few real neutrals. Either the victors must judge the vanquished or we must leave the defeated to judge themselves. After the first World War, we learned the futility of the latter course.

But how does a prosecution by the victors avoid being accused of running a kangaroo court? Again, from Justice Jackson:

We will not ask you to convict these men on the testimony of their foes. There is no count in the Indictment that cannot be proved by books and records. The Germans were always meticulous record keepers, and these defendants had their share of the Teutonic passion for thoroughness in putting things on paper. Nor were they without vanity. They arranged frequently to be photographed in action. We will show you their own films. You will see their own conduct and hear their own voices as these defendants re-enact for you, from the screen, some of the events in the course of the conspiracy.

[UPDATE: I just found video of Jackson’s opening remarks. The “Unfortunately . . .” quote above is at the 10:15 mark, and “We will not ask you . . .” quote is at 12:55.]

As I read the indictment in the matter of the United States v. Donald J. Trump, Jackson’s words kept echoing in my head.

Books and records . . .

Vanity and photographs . . .

“You will see their own conduct and hear their own voices . . .”

What Marcy labeled (properly!) as “Hillary’s Revenge” is a collection of Trump’s own words, and Trump can be seen and heard saying them in numerous video clips all over the internet. The same is true of “Brennan’s Revenge”.

It should be no surprise to anyone that the Trump indictment echoes Justice Robert Jackson at Nuremberg. Before he was named as the Special Counsel in this matter, Jack Smith had spent several years working at the International Criminal Court at the Hague. From his wiki:

From 2008 to 2010, Smith worked as Investigation Coordinator for the Office of the Prosecutor of the International Criminal Court in The Hague.[11][10] In that position, he oversaw cases against government officials and militia members accused of war crimes and genocide.[3][9] 

[snip]

On May 7, 2018, Smith was named to a four-year term as chief prosecutor for the Kosovo Specialist Chambers in The Hague, investigating war crimes committed in the Kosovo War,[8][9][13] including the case of Salih Mustafa.[16] He took up the post on September 11, 2018, and was appointed to a second term on May 8, 2022.[8]

You don’t hold positions like these without studying the Nuremberg Trials and learning their lessons.

In Jackson’s opening speech to the Nuremberg Tribunal, at the end of his introductory remarks and before he pivots into the specific discussion of the case at hand, he offered these words to the Tribunal:

The case as presented by the United States will be concerned with the brains and authority back of all the crimes. These defendants were men of a station and rank which does not soil its own hands with blood. They were men who knew how to use lesser folk as tools. We want to reach the planners and designers, the inciters and leaders without whose evil architecture the world would not have been for so long scourged with the violence and lawlessness, and wracked with the agonies and convulsions, of this terrible war.

“Men of station and rank . . .”

“men who knew how to use lesser folk as tools . . .”

“reach the planners and designers, inciters and leaders . . .”

Marcy called the Trump indictment a “tactical nuke” and she explored how it ramps up pressure on Walt Nauta to come clean. But more than that, I see it as Jack Smith channeling his inner Justice Jackson.

Yes, this is the DOJ of a political victor charging a political loser with serious crimes, but Smith learned from Jackson how that can be done with integrity. Yes, this is the first time a former US president has been charged with serious crimes, but Smith learned from Jackson that this must be done when circumstances warrant, or the nation and the world will pay a price for failing to seek justice.

Jack Smith knows his Justice Robert Jackson. Now he’s begun teaching Team Trump what’s he learned, and something tells me they aren’t going to like it at all.

Hillary’s Revenge: Trump Promised Voters He Would Protect Classified Information

According to NBC news, Jack Smith prosecutor David Harbach, not Jay Bratt, was at the Miami courthouse on Thursday as a grand jury indicted the former President.

That was a surprise to me. While Harbach has post-DOJ ties to Jack Smith from the Hague, at DOJ, he was primarily a corruption prosecutor.

A seasoned trial lawyer, Harbach has tried more than 35 cases to verdict in federal and state courts. He has also conducted some of the nation’s highest profile public corruption trials, including cases against former U.S. Senator John Edwards and former Virginia Governor Robert F. McDonnell.

Harbach was an Assistant U.S. Attorney in the Southern District of New York from 2005 to 2010, and for four years beginning in 2015, Harbach was an Assistant U.S. Attorney in the Eastern District of Virginia. In 2016, he was appointed Managing Assistant U.S. Attorney and Criminal Supervisor of the Richmond Division office, overseeing 21 prosecutors.

From 2014 to 2015, Harbach served on detail as Special Counsel to FBI Director James Comey. Before his work with the FBI, Harbach served as a Trial Attorney in the DOJ Criminal Division’s Public Integrity Section, earning the Deputy Chief title after two years.

By all appearances, Smith had a corruption prosecutor present the Trump indictment to the jury, not DOJ’s head of counterintelligence Jay Bratt.

I didn’t even know Harbach was working this case! I thought he was working the January 6 case. I thought he was working on holding Trump accountable for defrauding a bunch of MAGA supporters, claiming they were paying for election integrity when instead it all went to paying staffers at his post-election office (including Walt Nauta).

Perhaps Bratt flew back to DC after attending the grand jury appearance for Taylor Budowich on Wednesday to deal with Stan Woodward’s accusations of ethical abuse. Perhaps Smith figured that, until that allegation is resolved, someone else should have their name on the official documents.

But Harbach’s apparent role in presenting the indictment is one of the things that made me look at two of my favorite passages differently. There’s this passage, which I call “Hillary’s Revenge.” It collects five of the instances in 2016 where Trump distinguished himself from Hillary Clinton by boasting of his purported concern for classified information.

22. As a candidate for President of the United States, TRUMP made the following public statements, among others, about classified information:

a. On August 18, 2016, TRUMP stated, “In my administration I’m going to enforce all laws concerning the protection of classified information. No one will be above the law.”

b. On September 6, 2016, TRUMP stated, “We also need to fight this battle by collecting intelligence and then protecting, protecting our classified secrets. . . . We can’t have someone in the Oval Office who doesn’t understand the meaning of the word confidential or classified.”

c. On September 7, 2016, TRUMP stated, “[O]ne of the first things we must do is to enforce all classification rules and to enforce all laws relating to the handling of classified information.”

d. On September 19, 2016, TRUMP stated, “We also need the best protection of classified information.”

e. On November 3, 2016, TRUMP stated, “Service members here in North Carolina have risked their lives to acquire classified intelligence to protect our country.”

Andrew Kaczynski put together all the instances of it.

In an Espionage Act indictment, this paragraph serves the function of demonstrating Trump’s awareness of the importance of classified information.

Then there’s this passage, which I call “Brennan’s Revenge.” It’s a statement that Trump issued to justify stripping John Brennan of his security clearance in 2018.

23. As President of the United States, on July 26, 2018, TRUMP issued the following statement about classified information:

As the head of the executive branch and Commander in Chief, I have a unique, Constitutional responsibility to protect the Nation’s classified information, including by controlling access to it. . . . More broadly, the issue of [a former executive branch official’s] security clearance raises larger questions about the practice of former officials maintaining access to our Nation’s most sensitive secrets long after their time in Government has ended. Such access is particularly inappropriate when former officials have transitioned into highly partisan positions and seek to use real or perceived access to sensitive information to validate their political attacks. Any access granted to our Nation’s secrets should be in furtherance of national, not personal, interests.

The circumstances around the statement are fascinating. Trump started publicly considering stripping security clearances after Rand Paul, fresh off a trip as a back channel to Putin, pitched it to Trump with two other unnamed people on July 23. Trump announced it on August 15, but then Brennan threatened to sue as obvious retaliation. The next year, NYT reported that Trump never did file the paperwork to strip the clearance.

Still, at least on first appearances, that background is not why this paragraph is in the indictment. Rather, it shows Trump’s awareness that you can’t take your privileged access to “our Nation’s secrets” with you after you leave.

But, presented by a public integrity prosecutor rather than a counterintelligence one, that last bit may prove to be the most important. Read that way, this paragraph is a declaration by the Commander in Chief that one cannot use classified information in furtherance of personal interests. That kind of declaration by the Commander in Chief has a certain kind of force.

And presented by a public integrity prosecutor rather than a counterintelligence one, the Hillary’s Revenge paragraph reads like someone engaged in fraud, getting elected on a promise he will use the office to protect classified information, only to use it, instead, to steal classified information.

Let me suggest the Mar-a-Lago indictment might actually be a public corruption indictment wrapped up inside an Espionage Act indictment.

To be sure: there’s little discussion in this indictment of why Trump stole these documents. Significantly, what is in there happened as uncharged conduct in Bedminster. There’s the meeting at which Trump used a stolen Iran document to badmouth Mark Milley.

34. Upon greeting the writer, publisher, and his two staff members, TRUMP stated, “Look what I found, this was [the Senior Military Official’s] plan of attack, read it and just show . . . it’s interesting.” Later in the interview, TRUMP engaged in the following exchange:

TRUMP: Well, with [the Senior Military Official]—uh, let me see that, I’ll show you an example. He said that I wanted to attack [Country A]. Isn’t it amazing? I have a big pile of papers, this thing just came up. Look. This was him. They presented me this—this is off the record, but—they presented me this. This was him. This was the Defense Department and him.

WRITER: Wow.

TRUMP: We looked at some. This was him. This wasn’t done by me, this was him. All sorts of stuff—pages long, look.

STAFFER: Mm.

TRUMP: Wait a minute, let’s see here.

STAFFER: [Laughter] Yeah.

TRUMP: I just found, isn’t that amazing? This totally wins my case, you know.

STAFFER: Mm-hm.

TRUMP: Except it is like, highly confidential.

STAFFER: Yeah. [Laughter]

TRUMP: Secret. This is secret information. Look, look at this. You attack, and—

Robert Costa had a really fascinating thread on the background to this, a description of an ongoing obsession with Milley.

This is precisely the kind of conduct of which Trump accused Brennan, the use of secrets he learned while he had access to secrets to suggest (falsely in this case) to have dirt on one of his political adversaries.

Then there’s the instance where Trump showed one of his PAC representatives a classified map and claimed that some ongoing conflict was not going very well, presumably to suggest that Joe Biden wasn’t doing as well as Trump had.

In August or September 2021, when he was no longer president, TRUMP met in his office at The Bedminster Club with a representative of his political action committee (the “PAC Representative”). During the meeting, TRUMP commented that an ongoing military operation in Country B was not going well. TRUMP showed the PAC Representative a classified map of Country B and told the PAC Representative that he should not be showing the map to the PAC Representative and to not get too close. The PAC Representative did not have a security clearance or any need-to-know classified information about the military operation.

Still, all the conduct describing Trump putting classified information to personal use happened in Bedminster, where two sets of classified documents went, never to be seen again.

Indeed, that’s one part of the existing indictment that surprised me: I had expected Smith would charge the document showing that Trump compiled one confidential and one secret document into a larger one including messages from a pollster, a faith leader, and a book author. The FBI found that document in a drawer in Trump’s desk at Mar-a-Lago.

I similarly expected Smith might charge the Presidential schedules that Chamberlain Harris loaded onto her laptop. Again, another instance of documents that were comparatively less sensitive, which Trump put to use for his PAC.

But maybe all this will show up in some other place. After all, one of the last things that Jay Bratt did before indicting was that Budowich interview, in which the head of Trump’s current PAC described the foreknowledge that he and others had early last year that Trump wasn’t turning over all the documents.

I proposed that this indictment might be understood as a public integrity indictment wrapped up inside an Espionage Act indictment.

But I don’t rule out we’ll see an Espionage Act indictment wrapped up inside a public integrity indictment.

Update: Over on Twitter, Yale HillBillionaire JD Vance points out why it is so important for a political candidate to be honest about whether they intend to uphold classification or intend to steal documents in bulk. I’m really grateful that Vance has laid out why Trump engaged in fraud here.

Lock Him Up! Trump Charged with Crimes He Believes Candidates Can Be Charged With

While I was asleep, the news broke that DOJ issued a summons to Trump to appear to be arraigned in SDFL Tuesday at 3PM.

Trump has not seen the indictment yet, but Jim Trusty says that based on the summons, there are seven crimes charged:

  • 18 USC 793(e): hoarding (and possibly disseminating) stolen classified documents
  • 18 USC 1512(k): conspiracy to obstruct justice
  • 18 USC 1512(b)(2)(a): inducing someone to withhold testimony (possibly asking Nauta to withhold testimony, or setting Evan Corcoran up to make incorrect statements)
  • 18 USC 1512(c)(1): concealing a document (possibly altering surveillance video)
  • 18 USC 1519: concealing a document (probably for hiding docs from Evan Corcoran)
  • 18 USC 1001(a)(1): concealing a material fact (possibly false statements to NARA and DOJ)
  • 18 USC 1001(a)(2): false statement

Until we see the indictment, this is a game of telephone through lawyers who are woefully inappropriate for this kind of investigation. For example, DOJ often charges multiple counts of 18 USC 793(e), one for each stolen classified document they want to tell a story about. Here’s how DOJ did it in the case of Hal Martin:

Similarly, we know of several instances that might be charged under the inducement charge, 18 USC 1512(b)(2)(a): including at least Evan Corcoran, Alex Cannon, and Walt Nauta. Each could be charged separately.

So until we see an indictment, it will be unclear what story DOJ is telling.

Update: Corrected Trump’s summons date.

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