I still owe you a longer post on what I gleaned from my deep dive into the mostly sealed immunity appendix over the weekend. Here’s my evolving understanding of the appendix so far.

Volume I:

• GA 1 through around GA 660: Interview transcripts
• Around GA 661 to GA 722: Material justifying treating Eric Herschmann as unofficial role

Volume II:

• GA 723 through GA 771: Presidential Daily Diaries
• GA 772 through GA 965: Social media

Volume III GA 968 through GA 1503: State-related documentary evidence

Volume IV:

• GA 1503 through around GA 1684: Pence and January 6-related documentary evidence
• GA 1685 though GA 1885: Material justifying treatment of Trump’s statements as unofficial conduct

But for now, I want to share a hypothesis: that Mike Roman and Boris Epshteyn used technical (in the case of Roman) or legal (in the case of Epshteyn) delays to stall the exploitation of their phones.

Again, this is all speculative.

As I laid out here, the superseding indictment does not name either Roman or Steve Bannon as co-conspirators using the designator “CC.” But the immunity filing treats both as co-conspirators, as least for the purpose of admitting their speech via a hearsay exception. In that post, I posited that Jack Smith considered a more substantive superseding indictment, adding charges based (in part) on their actions, but did not do so, possibly because of the timing in advance of the election. I further developed that hypothesis in this post, in which I suggested additional charges might pertain to inciting violence.

It is possible that SCOTUS’ decisions — not just Fischer and the Immunity ones, but also the 14th Amendment one — made Smith reconsider his charging decisions; see this post for how those rulings changed the legal landscape around Trump’s actions, and those of his co-conspirators.

But it may also be that a delay in accessing evidence meant that Smith could not yet consider such charges when he first charged Trump.

The mostly-sealed immunity appendix suggests there are fairly key texts obtained from the phones of Roman and Boris Epshteyn.

Much of the first 50 pages of Volume III, from GA 968 through GA 1014 (right up to the unsealed beginning of Pence’s book), are likely texts from Roman or Epshteyn’s phones. GA 968 to 996 are the texts in which Roman encourages a colleague at the TCF counting center in Detroit to “Make them riot.” The next three pages describe similar efforts in Philadelphia. It’s not clear where those came from, but Roman is from Philly, so it’s likely he’d be involved in any fuckery there.

Then, starting at GA 1004 (after three pages of unsealed transcripts showing Trump conceding in an AZ suit), there are what appear to be 11 pages of texts from Epshteyn’s phone. The texts start with the ones describing Steve Bannon telling Boris that Trump had just fired Justin Clark, he (Boris) would report to Rudy, and that Bannon, “had made a recommendation directly that if [Rudy] was not in charge this thing is over Trump is in to the end.” The apparent Epshteyn texts include his efforts to set up meetings to pressure Pence, ending with texts from January 5 where Epshteyn reported back to Bannon that Mike Pence’s counsel, Greg Jacob, had refused their last entreaty to just throw out all the Biden votes, in response to which Bannon said, “Fuck his lawyer.”

“So help me god,” Mike Pence says via the title page of his book on the very next page of the appendix.

It would probably make a dramatic narrative arc if we could read it in sequence.

These texts are (along with the transcript showing Trump’s campaign team conceding a legal case) the first pieces of documentary evidence presented to Judge Chutkan, to support the section of the immunity brief describing, “Formation of the Conspiracies.” But neither the specifics of the communications nor the treatment of Roman and Bannon as co-conspirators show up in the original and therefore the supseseding indictment.

I’ve been suspecting that Smith first obtained the Roman texts, from a phone seized in September 2022, sometime between August 1, 2023 (the date of the original indictment) and December 5, 2023, when Smith asked to submit the “Make them riot” texts in a 404(b) filing, the same filing that asked to present evidence of Trump ratifying the Proud Boys’s sedition that is entirely absent from this brief. That is, I suspect that in the four months after obtaining the original indictment, Jack Smith grew confident he had evidence to prove more than he had originally charged, but by that point, Trump had already secured his eight months of delay, putting the first chance to charge anything more in the pre-election window.

Mike Roman is technically sophisticated. It would be unsurprising if his phone were protected with the kinds of security that could cause a year long delay breaking into it. The reason I suspect there was a delay in getting these texts is that incredibly damning language that should otherwise merit treating Roman, from the start, as a co-conspirator, language that Smith now uses to open the start of his brief, only appeared in the public record in December 2023.

The reasons and means via which I think Epshteyn may have delayed access to texts that, like the Roman ones, don’t appear in the original indictment are different. These are the texts that got Bannon treated as a co-conspirator in the brief, that provided basis for Smith to use Bannon’s public commentary on his podcast — “all hell will break loose” on January 6– as a reflection of Trump’s own views.

Epshteyn’s phone, like Roman’s, was seized in September 2022. Starting in the months before the phone was seized, Epshteyn expanded his consigliere role for Trump, orchestrating Trump’s legal team that would help to hide stolen documents. It’s not entirely certain whether Jack Smith treats Epshteyn’s role as that of a lawyer in his stolen documents court filings. It was not until some months later that Epshteyn started billing his time as a lawyer. But Epshteyn got the press to describe him as serving in a legal role earlier than that.

According to someone who appears to be Eric Herschmann, Ephsteyn took on this lawyer role in order to obtain cover for his own earlier actions. In a November 2, 2022 interview, someone with Herschmann’s potty mouth and access  [Person 16] described how a “total moron” who looked like Epshteyn [Person 5] was, at that time, trying to give himself legal cover for previous activities.

According to Person 16, he “believed [Person 5] was now trying to create [redacted] to cover [him] for previous activities. [Person 16] believed [Person 49’s] records may reflect recent [redacted] that did not reflect what actually transpired.”

And it’s not just January 6 related crimes that Epshteyn might have been obscuring; prosecutors were also investigating a cryptocurrency scheme that Epshteyn and Bannon used to bilk Trump supporters.

To the extent that Epshteyn could claim there was attorney-client privileged material on the phone seized over three months after Epshteyn was involved in recruiting Christina Bobb to sign a declaration on June 3, it would create real obstacles in accessing material from the phone. And since 2023, Epshteyn’s lawyer, Todd Blanche, has also represented Trump, creating all sorts of complexities regarding the protective order.

It took nine months (April 2021 to January 2022), with the involvement of a Special Master, to exploit Rudy’s phones. It took far longer than that to exploit Scott Perry’s. Prosecutors only recently obtained content from James O’Keefe’s phone seized almost three years ago. It would be unsurprising if Epshteyn’s effort to retroactively create a privilege covering his phone extended how much time it took to access his content. And that might explain why details, like Bannon informing Epshteyn he was reporting to Rudy and Bannon’s treatment as a co-conspirator, would not be substantiated in time for the original indictment.

Again, this is all speculation based on what we see in the immunity brief that we didn’t see in August 2023 in the first indictment. But a delay in accessing the texts that have now become the opening act in Jack Smith’s documentation of Trump’s conspiracy might explain the shifted focus.