January 29, 2023 / by 

 

On emptywheel’s Continued Obsession with Delayed Oligarch Associate Arrests

A while back, I did a series of posts showing how, in late September, DOJ got a series of indictments targeting Oleg Deripaska and those who facilitated his sanctions violations. We didn’t see all that until months later (and I wouldn’t be surprised if there were a few stray indictments we haven’t seen yet).

That’s why I’m interested in the timing and venue for indictments of two men who facilitated Viktor Vekselberg’s alleged sanctions violations. The indictments were obtained in November, but they were rolled out yesterday. DOJ indicted, separately, Richard Masters (who was arrested in Spain yesterday) and Vladislav Osipov (who remains at large and, presumably, untouchable) for conspiring with each other. The indictments are connected to, and follows, the seizure of Vekselberg’s yacht, the Tango, in April.

The indictments themselves are standard sanctions violations ones. After the legal background on IEEPA (the law behind such sanctions) and the Bank Secrecy Act, a Ukraine-related sanctions under which Vekselberg was sanctioned (though without naming him), it lays out the Panamanian shell companies (which the seizure affidavit identifies as “Arinter”) through which Vekselberg allegedly owns the Tango and the yacht management company Masters runs, Master Yachts Safety, in Mallorca.

The corporate entities are the lead co-conspirators. Masters and Osipov only rank as Co-Conspirator 3 and 4, respectively.

There’s little surprising in the overt acts. One paragraph describes how, in September 2019, the co-conspirators changed the ownership structure of the Panamanian shell company so that Individual 1 (often used to describe someone who should be lawyering up) would appear to own the shell company and through it the yacht, instead of Vekselberg. Then, on March 9, 2022, in the wake of new sanctions after the invasion of Ukraine, Osipov instructed one of the yacht management company’s employees to restrict sharing of Individual 1’s association with the yacht.

The basis for the sanctions in the US includes a $1.3 million December 2017 payment from Vekselberg to the Panamanian shell company, which went through a correspondent bank in Connecticut, and a March 21, 2018 payment from the Panamanian shell company to a Russian company owned by Vekselberg, which went through another US correspondent bank. It also describes 41 payments, which span from December 6, 2018 through December 9, 2021, to an American Internet Service Provider. It describes some payments in 2020, 2021, and 2022 for things for the yacht, including a $2,600 payment to a US manufacturer for luxury robes for the Tango; two such payments for luxury robes also make up two counts of sanctions violation. Then there are five counts of money laundering for payments for services for the yacht.

Some of this, as well as more detail on the shell companies involved, is laid out in the seizure affidavit. The affidavit makes no mention of Osipov, however. It names the Panamanian Corporate Directors, mentions the Swiss bank account, even mentions transfers involving Master Yachts, but does not mention who was directing some of all that.

Which is one reason I find the existence of the two indictments curious. That would have made it possible to arrest Masters without revealing Osipov’s name (though references to Osipov in Masters’ indictment would presumably have been obvious to him). While the indictments of the men were announced in the same press release, the URLs for the press release files are  5 digits apart (1563251 and 1563256). And assuming that Masters has remained in Mallorca since November managing other yachts, he could have been arrested two months ago.

Meanwhile, the venue is curious. The press release ties this into the KleptoCapture initiative rolled out in the wake of the Russian invasion. That effort is led out of SDNY, though the Deripaska actions were charged in EDNY. And it’s likely Masters, if the extradition succeeds, would be first flown into EDNY (often JFK) or EDVA (Dulles), which is often how venue is assigned. The venue in DC is all the more curious given that it was investigated in Minneapolis: “The FBI Minneapolis Field Office is investigating the case.”

The only explanation in the indictment for a DC indictment is that,

Acts and omissions in furtherance of the offenses alleged herein occurred within the District of Columbia.

That suggests the venue lies, in part, on the conspiracy to defraud Treasury.

Or maybe it’s another Federal agency.

While the MN-based FBI affiant works on sanctions cases, she says she is, “currently assigned to conduct investigations involving the illegal export of controlled items, which are regulated by the U.S.” Fancy bath robes are not controlled items nor are any of the other items bought in the US for use on the Tango described in the indictment, at least not obviously. Given Vekselberg’s tech ties, I do wonder if there’s not something more.

In any case, DOJ may soon have an expert in yacht laundering in its custody, someone who might be able to help unpack other laundered yachts.


The Primary Thing Eric Herschmann Remembers from January 6 Is that Cassidy Hutchinson Was Wrong about That Note

There’s a funny detail in Cassidy Hutchinson’s September 14 January 6 Committee testimony.

She claimed that on May 20, after a third appearance before the committee and after firing her lawyer, Stefan Passantino earlier that day, Eric Herschmann called her and told her, “I didn’t know you remembered so much.”

And Eric called me that evening, and I just apologized. And he was like, you know, “I didn’t know that you remembered so much, Cassidy. Mark [Meadows] really put you in bad positions. I’m really sorry that he didn’t take care of you better. You never should’ve had to testify to any of that. That’s all of our jobs. I don’t know why they didn’t ask us, they asked you instead.”

And I was just like, “Look, Eric like, it is what it is.” And he kind of talked for — it was probably a 30-minute conversation.

“Remembered,” she described Herschmann saying, not “knew” or “witnessed.”

It’s an interesting word choice, if accurate, because in Herschmann’s testimony before the committee back on April 6 (and so after Passantino had sat through Hutchinson’s first two appearances before the committee, on February 23 and March 7), he didn’t remember much.

The word “remember” shows up (sometimes used as part of a question to him) 482 times in the transcript. The word “recall” shows up 166 times. The word “recollection” comes up 24 times.

Among the things Herschmann professed to have little memory of were the fake electors casting votes in December, Trump’s December 19 tweet announcing the January 6 event,  the date of a key January 5 meeting involving Marc Short and John Eastman, the details (beyond an “intellectual discussion about [John] Eastman”) of a call he had with Rudy Giuliani — out of the blue! — on the morning of the 6th, what he said to Pat Philbin to try to convince him to join him at the rally before proceeding on his own, what Trump said to him while waiting to speak at the Ellipse (Herschmann invoked Executive Privilege to cover a call between him and Trump at 10:50PM that day), any claims in Trump’s Ellipse speech that Herschmann knew to be bullshit,  what Mark Meadows, Dan Scavino, and Trump were talking about in the dining room after returning from the Ellipse, and whether he had auto-delete set for his texts.

What Herschmann did recall — aside from the times he screamed at Jenna Ellis, Sidney Powell, and John Eastman, which made him a hero of the January 6 Committee hearings — was writing a note calling on people to leave the Capitol.

Q So do you recall, did you tell them what was happening or did they seem to already be aware?

A I don’t remember. I know I wrote out something, but I don’t remember if they were aware when they came back or I told them when I came in. I just don’t remember that detail.

Q And why did you write something out?

A I thought we should put out a statement.

Q Okay. Do you remember what you wrote?

A I don’t remember the exact words, but I remember going down to Mark’s outer office, chief of staff, and asking someone there to get me something to write on. And normally, if I had to — if I was grabbing something, it would be the chief of staff.

They have one of those cards, I don’t know, it’s a rectangular card that says chief of staff.

Q So this was a handwritten note?

A It was a handwritten note, yeah.

Q Okay. Let’s go — we’ll pull up Exhibit 11. Is that the note you’re referring to?

A That is the note.

Q Okay. And what did you do with the note?

A The actual physical note.

Q Yeah. Did you give it to the President?

A No, I didn’t give it to the President. I may have given it to Meadows, but I didn’t hand it to the President. I would have — I think the reason I edited “illegally,” is someone had a discussion, I don’t remember who it was — and it wasn’t the President, but someone had the discussion, how do we establish it’s illegally — that they entered illegally? Which I thought, okay, I don’t want to say overlawyering, but overlawyering, in my view. So I crossed out “illegally” and said “without proper authority.” Okay, that solves that issue, right? And I thought we should put out the statement.

Q Did you tell the President that he should put out a statement?

A Generally, I had discussions with the President about putting out a statement. I don’t remember if I read this or I handed it to Mark, or Mark and I discussed it in front of the President. I just don’t remember that detail. But this was my first reaction to seeing the violence and what I thought the White House should do.

Q Did the President have a reaction?

A I don’t recall his reaction, but obviously he didn’t put out this statement. [my emphasis]

It’s funny that that was one of the few things Herschmann recalled on April 4, because after Hutchinson testified in her May 17 testimony to remembering a whole bunch of things that Herschmann couldn’t remember (including a discussion between Meadows, Herschmann, and Pat Cipollone about Trump’s comment that Mike Pence might deserve to be hung), she went on to publicly testify, on June 28, that she physically wrote that note as Meadows dictated it, with Herschmann chiming into to offer the alternative, “without proper authority.”

LIZ CHENEY: Now let’s look at just one example of what some senior advisers to the president were urging. Ms. Hutchinson, could you look at the exhibit that we’re showing on the screen now? Have you seen this note before?

CASSIDY HUTCHINSON: That’s a note that I wrote at the direction of the chief of staff on January 6th, likely around 3:00.

LIZ CHENEY: And it’s written on a chief of staff note card, but that’s your handwriting, Ms. Hutchinson?

CASSIDY HUTCHINSON: That’s my handwriting.

LIZ CHENEY: And why did you write this note?

CASSIDY HUTCHINSON: The chief of staff was in a meeting with Eric Hirschman and potentially Mr. Philbin, and they had rushed out of the office fairly quickly. Mark had handed me the note card with one of his pens, and sort of dictating a statement for the president to potentially put out.

LIZ CHENEY: And — no, I’m sorry. Go ahead.

CASSIDY HUTCHINSON: That’s Ok. There are two phrases on there, one illegal and then one without proper authority. The illegal phrase was the one that Mr. Meadows had dictated to me. Mr. Herschmann had chimed in and said also put without legal authority. There should have been a slash between the two phrases. It was an — an or if the president had opted to put one of those statements out. Evidently he didn’t. Later that afternoon, Mark came back from the Oval Dining Room and put the palm card on my desk with illegally crossed out, but said we didn’t need to take further action on that statement.

LIZ CHENEY: So, to your knowledge, this statement was never issued.

CASSIDY HUTCHINSON: It was — to my knowledge, it was never issued.

The difference between Herschmann and Meadows dictating the note to Hutchinson (who is not once mentioned in Herschmann’s testimony) and Herschmann writing it himself is negligible in the larger story, so he could have left it well enough alone. Especially given the number of times Herschmann claimed not to remember details of what happened with the note, such as how it was presented to Trump or how the then-President responded.

But Herschmann didn’t leave it well enough alone. Shortly after Hutchinson’s public testimony, Herschmann’s spox put out a formal statement claiming he had written the note.

“The handwritten note that Cassidy Hutchinson testified was written by her was in fact written by Eric Herschmann on January 6, 2021,” a spokesperson for Herschmann told ABC News Tuesday evening.

“All sources with direct knowledge and law enforcement have and will confirm that it was written by Mr. Herschmann,” the spokesperson said.

This statement became one of two bases — along with the pushback from people in the vicinity of Tony Ornato about the Beast story — on which Hutchinson’s credibility was attacked in the days after her testimony.

The discrepancy on the note could be just that, a discrepancy. All of Herschmann’s claimed memory lapses might one day come to be refreshed.

The dispute, however minor, between Herschmann and Hutchinson is noteworthy for several reasons though.

First, Hutchinson told the committee that the first time she met with Passantino, after being referred by Herschmann via Alex Cannon, she asked him if he was representing anyone else before the Committee. Passantino wouldn’t answer, but according to Hutchinson, he did say he had represented Eric Herschmann, among others, in the past, and that “we really want to work to protect Eric Herschmann.”

Ms. Hutchinson. ~ You previously asked about individuals he had raised with me. In my conversation with him earlier that afternoon, when I [sic] asking him about the engagement letter, I did also ask Stefan if he was representing any other January 6th clients. And he had said, “No one that I believe that you would have any conflicts with.”

And I said, “Would you mind letting me know?” Now, again, to this day, I still don’t know if that’s really a kosher question to ask an attorney, if they can share their clients with me, but I wanted to make sure that there actually weren’t any conflicts, because I didn’t have anything in writing.

He wouldn’t tell me anybody he was representing before the January 6th Committee, but he did tell me that he had previously represented Eric Herschmann and Jared Kushner and Ivanka Trump in unrelated matters.

And in that same conversation, he said, “So if you have any conversations with any of them, especially Eric Herschmann, we want to really work to protect Eric Herschmann.”

And| I remember saying sarcastically to him, “Eric can handle himself. Eric has his own resources. Why do I have to protect Eric?” He said, “No, no, no. Like, just to keep everything straight, like, we want to protect Eric with all of this.”

Ms. Cheney. Did he explain what he meant?

Ms. Hutchinson. No. And, to be honest, I didn’t ask. I didn’t have anything with Eric anyway that I felt that I had to protect. And I say that because, at the time of being back in Trump world — this is where I look back and regret some of this, but — like, I did feel a need to protect certain people. But with somebody like Eric, I didn’t feel that need, I didn’t find it necessary.  didn’t — I didn’t think that Eric did anything wrong at the time.

Ms. Cheney. Did it have something to do with NARA?

Ms. Hutchinson. He never really explained to me what it was exactly that we wanted to protect Eric on. I sort of erred on the side of: Maybe he just represents Eric in ongoing litigation, whether it’s financial disclosures or whatever it might be.

And, again, I just didn’t prod too much on that either, because, you know, I was under the impression that Eric helped set me up with Stefan, so I didn’t — I was worried that Stefan would then go back-channel to Eric and — this is my very paranoid brain at the time, but I was worried that if I, you know, pushed this subject a little too much, that he would then go back to Eric Herschmann and say, “Cassidy asked a lot of questions about you, like, why she needs to protect you.” So just didn’t really press the subject too much on that.

By the end of that first day, per her testimony, she learned that Passantino was business partners on the election-related business Alex Cannon had with Justin Clark and, possibly, Herschmann.

S0 I — “I want to make sure that I’m getting the dates right with these things?

He goes, “No, no, no.” He said, “Look, we want to get you in, get you out.

We’re going to downplay your role. You were a secretary. You had an administrative role. Everyone’s on the same page about this. It’s extremely unfair that they’re” “they’re” being the committee – “that the committee is putting you in this position in the first place. You really have nothing to do with any of this. It’s Mark’s fault that you’re even involved in this. We’re completely happy to be taking care of you now. We had no idea that you weren’t being taken care of this last year. So we’re really happy that you reached back out to us. But the less you remember, the better. I don’t think that you should be filling in any calendars or anything.”

[Redacted] When he said a

Ms. Cheney. Go ahead.

[Redacted] So everyone’s on the same page about this, did he explain who he was referring to when he said “everyone”?

Ms. Hutchinson. He didn’t at that moment. Then there are times throughout my working relationship with Stefan where he said similar things that I asked.

Later that day, sort of put together that the “they” he was referring to then were Justin Clark, Alex Cannon, Eric Herschmann. I think that’s — yeah, think that’s all of them.

Ms. Cheney. And how did you put that together?

Ms. Hutchinson.  Because he — he had said that — Justin — yeah, Justin Clark. Stefan had told me that — towards the end of the day that because he was involved with Elections, LLC, and tangentially, I guess Trump’s PACs, he had law partners. And unless I was extremely unwilling for him to share, he said it would be natural for him to have to share that information with the people that he works with that are his partners that are involved in Trump world.

Then, after her third interview — the one in which Hutchinson remembered a lot of details about the response to the attack that Herschmann had already testified to not remembering — Passantino responded by confirming to Maggie Haberman that Meadows’ former aide had testified, and telling Meadows’ lawyers, his partners, and Herschmann about her testimony, all in defiance of Hutchinson’s wishes, according to her testimony.

Ms. Cheney. Did he also – so you said that he talked to Terwilliger, to his law partners. Did he also talk to Herschmann?

Ms. Hutchinson. He did. I’m sorry. I neglected to mention that. He –as we were leaving that evening, I got an Uber, and he walked me to my Uber, and he reiterated that he was going to have a conversation with his law partners. He was going back to Michael Best, and he said that he was going to have a conversation with his law partners that night.

And he asked — he asked — I forget how he said it. He said something to the effect of, “I think its best if we tell Eric about this, too. He’s not technically my law partner, but I think Eric deserves to know some of this, too.”

And I said, “Look, at this point, one, I kind of know you’re going to do what you’re going to do.” And I said, “Whatever you think is best”

That’s what led to the 30-minute call from Herschmann, the one where he expressed surprise that she remembered so much.

The discrepancy looks somewhat different give Hutchinson’s claim that Passantino told her, from the start, “they” were trying to protect Herschmann.

Particularly given that the transcripts reveal just how amorphous Herschmann’s job was. He has often been referred to as part of the White House Counsel’s office. I’ve done it. General Keith Kellogg did it in his interview with the Committee, which is why, Kellogg explained, he was so surprised that Herschmann sat silent in the Oval Office as Trump told Mike Pence he could reject electors from contested states, some details of which were something else Herschmann claimed not to remember.

Herschmann’s job was providing legal advice (he was also involved in Jared Kushner’s portfolio of pardons and Middle East negotiations, though when asked, he was coy about his relationship with the kids: “I had met them beforehand,” he said) And he did report through Pat Cipollone. But he was not part of the White House Counsel’s Office.

It’s almost like he was an in-house minder, paid by taxpayers, installed by the family or Bill Barr for the last five months of the presidency.

While working at the White House, Herschmann teamed up with Passantino and Don Jr’s buddy, Arthur Schwartz, to pitch the first Hunter Biden smears to the WSJ, even before Rudy disseminated the “laptop.”

Yet even in that short time period, Herschmann became a key gatekeeper for the President, ostensibly to prevent him from getting outrageous pitches.

Which makes a key discrepancy between Pat Cipollone and Herschmann’s testimony rather interesting, particularly given Passantino’s concern (at least per Hutchinson’s testimony) with protecting Herschmann.

Herschmann claimed that the reason Cipollone wasn’t in that meeting in the Oval Office on January 6, sometime after he spoke with Rudy out of the blue and at which he didn’t remember the Joint Session of Congress coming up, is because Cipollone hadn’t arrived to work yet. In fact, Herschmann remembered that even after the Oval Office meeting, Cipollone still wasn’t in the office; Herschmann described talking to just Pat Philbin before deciding to go, without prior planning, to the Ellipse.

I don’t remember, I don’t think Cipollone was in the office yet, but Philbin was.

The way Cipollone remembered it is that he came to the Oval Office before the meeting, but Herschmann specifically told him he didn’t need to participate — it was just family.

I remember Eric Herschmann was standing there and came and my recollection is he came to me as I was standing in the door and said, this is — this is family — just kind of –you don’t need to be here. And said, fine. And believe I went back to my office at that point.

And so, as Herschmann described, when he was in the Oval Office not hearing a discussion about the Joint Session of Congress, he was just on a social visit, just saying hello.

Q You were not there for any legal purpose. It was just, you indicated, sort of a social gathering?

A Yeah, when I first came in, it was just saying hello.

I’m sure that relative veracity of these claims are all being weighed by Jack Smith and his prosecution team. Indeed, after these events, DOJ started adding Passantino’s name to subpoenas.

I’m interested in one more detail about it. Immediately after Hutchinson testified about her claims of obstruction to J6C on September 14 and 15 (testimony which should have been secret), Maggie Haberman came out with two stories pitching Herschmann — who worked so closely on Jared’s portfolio at the White House — in positive light. On September 16, Maggie Haberman reported on Herschmann’s demand to get an Executive Privilege invocation in writing just in time to avoid testifying sometime that month. In it, Herschmann got to impugn Boris Epshteyn’s legal ability, just like he was made a star of the J6C hearings by yelling at Eastman and Powell.

The claim that Herschmann was invoking Executive Privilege is particularly interesting given two things he said in his J6C interview. First, he said that “based on his understanding” with the two Pats, he would not invoke privilege, at least with respect to Trump’s call to Mike Pence on January 6.

Q And could you hear the Vice President, or only hear the President’s end?

A Only hear the President’s end.

Q Okay. And what did you hear him say?

A Well, I guess from this, based on my understanding with Pat Philbin and Pat Cipollone — I don’t want to assert privilege on that as much as tell you that, at some point, it started off as a calmer tone and everything, and then became heated.

Given his claimed status as a social visitor and his role as an aide giving legal advice reporting to, but not part of, the White House Counsel’s Office, I’m curious what privilege he would claim.

Almost immediately thereafter, Herschmann asked to review with his own lawyers (former colleagues of his from Marc Kasowitz’ firm who also repped Ivanka, Jared, Ivanka Trump’s Chief of Staff Julie Radford and aide Rachel Craddock, and two of Trump’s Executive Assistants, Molly Michael and Austin Ferrer, as well as Alex Cannon, the latter of whom was represented pro bono), in part, whether “if I don’t recall something” it’s invoking a privilege.

Q  Okay. Others have said that President Trump said, I made the wrong decision four years ago?

Do you recall that.

A Let me — can we take a two-second break, so I get the privilege down in my head? Because if I don’t recall something, I presume it’s not invoking anything, right?

So can we take a five-minute break, so I can get my own ground rules covered.

Herschmann did, as noted, invoke privilege to cover one of two private conversations he had with Trump that day, one after the attack on the Capitol. But that was it. The single solitary thing all day he invoked privilege over. And yet somehow, there would be a lengthy discussion about privilege before he appeared before a grand jury.

The reason I find these discussions of privilege so interesting, though, is because while we know that the two Pats testified before a grand jury after Beryl Howell overruled Trump’s privilege invocation, we’ve never heard whether Herschmann did.

That’s relevant, too, because (like Alex Cannon), Herschmann also reportedly has a role in the stolen documents case. A few days after the story on privilege, on September 19, Haberman reported that Herschmann had warned Trump to return his stolen documents at some otherwise vague meeting in 2021.

As Hutchinson’s testimony and years of past practice make clear, sometimes people share stories with Maggie as a way to telegraph what has gone on in an investigation.


Special Master in Project Veritas Investigation Reviewed Crime-Fraud Submissions in December

Back in December, Paul Calli and his firm withdrew from the Project Veritas Special Master docket, and was replaced by Edward Greim, a partner in Matt “Big Dick Toilet Salesman” Whitaker’s firm. He also represents a number of Trumpsters before the January 6 Committee.

That’s interesting timing because, according to the invoice that Special Master Barbara Jones just submitted, she spent two hours that week reviewing Crime-Fraud submissions in the case.

 


Trump Worked with People Who Allegedly Worked with the Proud Boys to Obstruct the Peaceful Transfer of Power

By my count, at least 14 people are known to have pled guilty to some kind of conspiracy on January 6, with four more cooperating against them. Another four were found guilty of one or more conspiracy in November’s Oath Keeper verdict. Eighteen people, in one way or another have been convicted of conspiring to prevent the peaceful transfer of power on January 6, most by obstructing the vote certification.

Trump played a key part in all those conspiracies.

Ronnie Sandlin, for example, first started planning to go, armed, to DC in response to Trump’s December 19 tweet, posting on December 23 that he planned to “stop the steal and stand behind Trump when he decides to cross the rubicon.” After he watched Trump’s speech on January 6, Sandlin did a live stream where he said, “I think it is time to take the Capitol.” Once he arrived at the Capitol, Sandlin and co-conspirator Nate DeGrave participated in tactically critical assaults on cops in two places, the East door and the door to the Senate gallery. After Sandlin helped him get into the gallery, Josiah Colt then rappelled from the gallery to the Senate floor.

Like Sandlin, Brad Smith started arming himself and planning to come to DC in response to Trump’s December 19 tweet.

The call to action was put out to be in DC on January 6th from the Don himself. The reason is that’s the day pence counts them up and if the entire city is full of trump supporters it will stop the for sure riots from burning down the city at least for awhile.

By December 31, Smith predicted, “Militias will be there and if there’s enough people they may fucking storm the buildings and take out the trash right there.” Smith and his co-conspirator, Marshall Neefe, participated in an assault on cops using an 8′ by 10′ Trump sign. And after the attack he boasted that the mission was successful because “we literally chased them out into hiding. No certification lol.”

Trump played a slightly different role in the Oath Keepers conspiracy. The Oath Keepers — Stewart Rhodes above all — viewed Trump as a means to prevent Biden’s election, because as President he could invoke the Insurrection Act and with it (the Oath Keepers believed) make the militias a legal arm of the state, defending Trump. Rhodes repeatedly called on Trump to invoke the Insurrection Act — on November 9, December 12, December 23, and January 6.

He dictated a note to Trump after January 6 asking him to call on the militias as his army to stop Biden from taking power.

For the most part, none of the channels via which Rhodes tried to speak directly to Trump (including Kellye SoRelle’s attempt to work through Rudy Giuliani’s son) are known to have reached Trump.

One of his attempted interlocutors, though, undoubtedly had access to Trump: Roger Stone, on whose Friends of Stone list Rhodes was sharing his plans for insurrection shortly after the election.

DOJ has exploited at least four phones owned by members of the Friends of Stone list: Rhodes and SoRelle, Owen Shroyer, and Enrique Tarrio. Probably DOJ asked for content from Ali Alexander as well (though he disclaimed having any Signal texts to the January 6 Committee).

While a jury found all the Oath Keepers guilty of obstructing the vote certification, with the key exception of Kelly Meggs (who was also in contact separately with the Proud Boys, Roger Stone, Ali Alexander, and alleged 3 Percenter Jeremy Liggett, who in turn had ties to the MAGA Bus Tour) as well as Jessica Watkins, it found the greater part of their conspiracy either overthrowing the government or interfering with with official duties: not obstructing the vote count. Their larger plan to keep Trump in power used different means than Trump used.

That’s not true of the Proud Boy Leaders, who are three days into their trial.

Not only did the Proud Boys allegedly pursue the same plan that Trump was pursuing — obstructing the vote certification on January 6 — but they were in communication with people who were in communication, and central to, Trump’s plan: most notably, Alex Jones, Ali Alexander, and Roger Stone. They were in communication with people who were in communication with people close to Trump during the attack.

Even their telephony records show that Enrique Tarrio, Joe Biggs, and Ethan Nordean were in contact with Alex Jones and Owen Shroyer during the period.

Records for Enrique Tarrio’s phone show that while the attack on the Capitol was ongoing, he texted with Jones three times and Shroyer five times.124 Ethan Nordean’s phone records reflect that he exchanged 23 text messages with Shroyer between January 4th and 5th, and that he had one call with him on each of those days.125 Records of Joseph Biggs’s communications show that he texted with Shroyer eight times on January 4th and called him at approximately 11:15 a.m. on January 6th, while Biggs and his fellow Proud Boys were marching at and around the Capitol.126

Given the known communication habits of the men, it’s possible there are Signal or Telegram communications that were unavailable to the J6C as well.

Alex Jones and Ali Alexander knew in advance they would lead the mob to the Capitol (the January 6 Report offers an unpersuasive explanation that the request came exclusively from Caroline Wren). Roger Stone had planned to join them, probably until he got cranky about being denied a speaking role on the morning of January 6. Mike Flynn wanted to latch on, as well, until the General got too cold and had to go back to his posh hotel room. “Hell no,” he said, according to Caroline Wren. “It’s freezing.”

Meanwhile, even as Shroyer was in touch with Biggs, Alexander was in touch with Caroline Wren, who remained at the Ellipse, and asked for 5-minute updates on the Trump’s progress to the Capitol (the text in question appears to have come from Wren, but may not have been provided in Alexander’s production).

The communication between Proud Boys and Jones in real time is critical because once the riot police showed up and slowed the attack, the Proud Boy leaders pulled up, effectively waiting until Jones appeared. And after Jones did appear, he told the mob following him that Trump was coming to give another speech — something Alexander, and so almost certainly Jones — knew to be false because Wren had told Alexander. Nevertheless, Jones led his mob to the East steps, riled them up with a 1776 chant, and left them there, where they were soon joined by the Oath Keepers (led by Kelly Meggs, who also was in touch with Alexander) and Joe Biggs and some other Proud Boys (including one who had been directing traffic). That collective mob breached the East door of the Capitol, opening a second major front on the Capitol and adding to the invasion of the Senate chamber.

There are rioters who were sentenced to two months in jail because they followed Alex Jones credulously to the top of those steps and joined the mob storming the Capitol.

And it wasn’t just Jones and Alexander who were in touch with Trump’s handlers.

Mark Meadows was, per Cassidy Hutchinson, in communication with Stone about his plans for January 6, at a time when Stone still planned to march to the Capitol with Jones and Alexander.

LIZ CHENEY: Thank you, Mr. Chairman. Before we turn to what Ms. Hutchinson saw and heard in the White House during the violent attack on the Capitol on January 6th, let’s discuss certain communications White House Chief of Staff Mark Meadows had on January 5th. President Trump’s associate, Roger Stone, attended rallies during the afternoon and the evening of January 5th in Washington, DC On January 5th and 6th, Mr. Stone was photographed with multiple members of the Oath Keepers who were allegedly serving as his security detail.

As we now know, multiple members of that organization have been charged with or pled guilty to crimes associated with January 6th. Mr. Stone has invoked his Fifth Amendment privilege against self-incrimination before this committee. General Michael Flynn has also taken the Fifth before this committee. Mr. Stone previously had been convicted of other federal crimes unrelated to January 6th.

General Flynn had pleaded guilty to a felony charge, also predating and unrelated to January 6th. President Trump pardoned General Flynn just weeks after the Presidential election, and in July of 2020, he commuted the sentence Roger Stone was to serve.

The night before January 6th, President Trump instructed his Chief of Staff Mark Meadows to contact both Roger Stone and Michael Flynn regarding what would play out the next day. Ms. Hutchinson, Is it your understanding that President Trump asked Mark Meadows to speak with Roger Stone and General Flynn on January 5th?

CASSIDY HUTCHINSON: That’s correct. That is my understanding.

LIZ CHENEY: And Ms. Hutchinson, is it your understanding that Mr. Meadows called Mr. Stone on the 5th?

CASSIDY HUTCHINSON: I’m under the impression that Mr. Meadows did complete both a call to Mr. Stone and General Flynn the evening of the 5th.

In an earlier interview, when she was still represented by Stefan Passantino, she had attributed the idea for this call to Peter Navarro or a Navarro staffer; the Navarro staffer who had let Mike Flynn into the White House on December 18, Garrett Ziegler, was another White House contact of Ali Alexander’s, in addition to Wren.

All this matters because of the way conspiracy law works, as laid out in the bullet points from Elizabeth de la Vega that I always rely on.

CONSPIRACY LAW – EIGHT THINGS YOU NEED TO KNOW.

One: Co-conspirators don’t have to explicitly agree to conspire & there doesn’t need to be a written agreement; in fact, they almost never explicitly agree to conspire & it would be nuts to have a written agreement!

Two: Conspiracies can have more than one object- i.e. conspiracy to defraud U.S. and to obstruct justice. The object is the goal. Members could have completely different reasons (motives) for wanting to achieve that goal.

Three: All co-conspirators have to agree on at least one object of the conspiracy.

Four: Co-conspirators can use multiple means to carry out the conspiracy, i.e., releasing stolen emails, collaborating on fraudulent social media ops, laundering campaign contributions.

Five: Co-conspirators don’t have to know precisely what the others are doing, and, in large conspiracies, they rarely do.

Six: Once someone is found to have knowingly joined a conspiracy, he/she is responsible for all acts of other co-conspirators.

Seven: Statements of any co-conspirator made to further the conspiracy may be introduced into evidence against any other co-conspirator.

Eight: Overt Acts taken in furtherance of a conspiracy need not be illegal. A POTUS’ public statement that “Russia is a hoax,” e.g., might not be illegal (or even make any sense), but it could be an overt act in furtherance of a conspiracy to obstruct justice.

Co-conspirators don’t all have to meet in a room together and agree to enter a conspiracy. That can happen (and did, in the Oath Keepers’ case) via a series of communications which networks everyone.

The demonstrative exhibit prosecutors used in the Oath Keeper trials showed how the various communications channels included everyone, even if some members of the conspiracy only interacted with a limited group of other co-conspirators.

I circled Rhodes and SoRelle in pink to show that even in the Oath Keeper trial, prosecutors treated the Friends of Stone list part of the communications infrastructure of the conspiracy.

Here’s what the larger conspiracy looks like, reflecting  the known communications between Rhodes, Meggs, Tarrio, Biggs, and Nordean and Jones and Stone, and the known communications between Jones and Stone and Alexander with Trump or his handlers, like Meadows, Wren, and Ziegler by way of Navarro.

The numbers and letters in parentheses come from one or another of the indictments charging conspiracy. As you can see, Trump’s known actions map onto the known, charged overt acts of various conspiracies to obstruct the vote count like a mirror.

Obviously, the pink part of this table has not been charged (yet). And it may not be unless prosecutors win guilty verdicts in the Proud Boys case. It also may not be if the obstruction charge gets narrowed on appeal.

For reasons I laid out here, the Proud Boys trial is far more complex than the Oath Keepers trial. And in the Proud Boys trial, like the Oath Keepers trial, prosecutors don’t have a clear map showing that the plan was to occupy the Capitol; instead they have testimony that Biggs and Nordean kept consulting, and everyone took orders from them, and those orders had the effect of sending cells of Proud Boys off to breach parts of the building. So it is not at all certain that prosecutors will win convictions of the men — Tarrio, Biggs, and Nordean — who were working with people who were working with Trump and his handlers.

But this is one of the means via which DOJ has been working to hold Trump accountable since just months after the attack (I first laid this out in July 2021, long before most commentators understood how DOJ was using obstruction).

Even with the disorganized conspiracy (Sandlin and friends), prosecutors have carefully shown how the men took Trump’s December 19 tweet as an explicit instruction, took instructions from a WildProtest flyer put out by Ali Alexander, believed Trump had ordered them to march to the Capitol. There are hundreds more rioters who took Trump’s December 19 tweet as an instruction, though in the case of Sandlin and his co-conspirators, they took steps that were critical to the occupation of the Capitol and the Senate chamber in response.

But with the Proud Boys, to an extent thus far only seen with Oath Keeper Kelly Meggs, the communication ties, via a two step network, to Trump’s own actions and directions. And with the Proud Boys, that coordination builds off years-long relationships, particularly between Biggs and Jones and Stone, and through them, to Trump.

Everyone was working towards the same goal: to prevent Congress from certifying Joe Biden’s victory. There were, in various places, explicit agreements made. There were, as with Trump’s Stand Back and Stand By comment that prosecutors used to kick off this trial, more implicit agreements as well.

And DOJ is now at the point where it is beginning to show how those agreements, explicit and implicit, all worked together to make the assault on the Capitol successful.

Conspiracy guilty verdicts

Oath Keepers Stewart Rhodes, Kelly Meggs, Jessica Watkins, Kenneth Harrelson, Kelly Meggs, Mark Grods, Caleb Berry, James Dolan, Joshua James, Brian Ulrich, Todd Wilson (11 conspiracy verdicts)

Proud Boys Matthew Greene, Charles Donohoe, Jeremy Bertino, with Isaiah Giddings, Louis Colon, and James Stewart cooperating (3 known conspiracy verdicts)

Disorganized Militia Ronnie Sandlin, Nate DeGrave, with Josiah Colt cooperating (2 conspiracy verdicts)

“Patriots” Marshall Neefe and Charles Smith (2 conspiracy verdicts)


How Legal Certainty about 1512(c)(2) Has Wobbled Even as Certainty Trump Violated It Increased

In the past year, those who believe Trump could and should be held accountable for January 6 reached near unanimity that he should be charged with obstruction of the vote certification — 18 USC 1512(c)(2).

In the same year, certainty about how the law applies to January 6 has wobbled, with one appeal pending before the DC Circuit (which will be appealed no matter how it comes out), and either an expansion of this appeal or a follow-on one virtually certain. All that uncertainty may not change DOJ’s determination to use it; under all but the most restrictive appellate rulings, it should still easily apply to Trump and his ilk, though not necessarily all the January 6 rioters who’ve already been prosecuted with it.

But DOJ probably won’t know exactly how it’ll apply for at least six months, maybe another year.

This post will attempt to explain what has happened and what might happen going forward.

1512(c)(2) reads:

Whoever corruptly otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

You need an official proceeding — here, Congress’ vote certification mandated by the 12th Amendment, you need an attempt to obstruct it, and you need corrupt purpose. The “otherwise” here is at the center of the legal dispute, meaning how this clause relates to the rest of the obstruction statute is under dispute. But depending on that relationship, the obstruction statute has the advantage of including a potential 20 year sentence, an explicit conspiracy charge, with enhancements under the sentencing guidelines for things tied to the degree of obstruction and the use of violence that offers a good deal of flexibility to tailor sentences ranging from 4 months to 6 years (and hypothetically far higher).

At first, lawyers not following the actual DOJ investigation imagined that Trump could be held accountable for January 6 on an incitement model; indeed, that’s what Congress used in impeachment. But from the start, DOJ charged many of the rioters who premeditated their effort to stop the vote certification with obstruction. It charged Oath Keepers Jessica Watkins and Proud Boy Joe Biggs with obstruction from their initial arrest affidavits on January 16 and 19, 2021, respectively. A jury found Watkins guilty of obstruction (but not seditious conspiracy) on November 30, 2022, and Biggs’ obstruction and sedition conspiracy trial kicked off last Thursday.

In July 2021, I argued that Trump (and any of members of Congress prosecuted) would be charged with obstruction, not incitement. I repeated and expanded that argument in August 2021. In her December speech calling to hold Mark Meadows in contempt, Liz Cheney invoked obstruction as the crime under consideration, which led TV lawyers, almost a year after the fact, to consider Trump’s conduct using the frame of obstruction. In March, Judge David Carter ruled it more likely than not that Trump and John Eastman had attempted to obstruct the vote certification (adopting the 9th Circuit standard for corrupt purpose).

At that point, 14 months after the attack, everyone was in agreement: That’s how Trump could be held accountable. By prosecution under 18 USC 1512(c)(2).

But starting in a November 22, 2021 hearing in the case of Garret Miller, former Clarence Thomas clerk Carl Nichols explicitly raised questions about whether obstruction could apply to the President. In March, even before Judge Carter’s ruling, Nichols ruled that while the vote certification counted as an official proceeding, obstruction required the involvement of documents. In refusing to change his mind on reconsideration, Nichols also noted the discrepancy among DC judges as to what “corruptly” means in the statute.

And that’s how on December 12, 2022, almost two years into this process and a month after the appointment of a Special Counsel, former Trump White House lawyer Greg Katsas, Mitch McConnell protégé Justin Walker, and Biden appointee Florence Pan came to consider how 1512(c)(2) would apply to January 6. On paper, the question they were reviewing pertained to Nichols’ ruling that obstruction under 1512(c)(2) must involve documents. But along the way, the Republican judges invited both sides to weigh in on both how to define corrupt purpose under the statute and, procedurally, how to address it if they were going to rule on it (that is, whether to issue a ruling now, or to remand it back to Carl Nichols only to be appealed after he rules).

Defendants have challenged whether the vote certification counts as an official proceeding too, and I don’t rule out that this Supreme Court, would insert itself into that issue as well, especially given that protests associated with the Brett Kavanaugh confirmation have, from the start, been raised as an inapt parallel to January 6.

It has been a month since the DC Circuit ruling, so they could rule anytime. In the hearing, Katsas seemed inclined to rule for defendants on requiring obstruction to include a documentary component and to intervene to sharply narrow corrupt purpose. Walker seemed to start out in the same camp, but by the end may have come around to splitting his ruling, ruling with DOJ on the documents question but with defendants on the corrupt purpose one. Importantly, he seemed to favor tying “corrupt purpose” to some personal benefit. Pan, who presided over some of these cases before being elevated to the Circuit, seemed inclined to rule with DOJ on both counts.

Whatever the DC Circuit decides, it will be appealed.

If DOJ loses, they’re likely to ask for an en banc review, where they would not face a panel with a majority of Trump appointees. If the defendants lose, they’re likely to appeal it to SCOTUS, where they’d be guaranteed a conservative majority. If the DC Circuit remands the “corrupt purpose” issue — procedurally the correct thing to do — it might be another nine months before DC Circuit gets it back. And then that decision will be appealed by the losing side, to the full panel or SCOTUS. Plus there’s a minor issue on a Trevor McFadden ruling that will be appealed too, how much of a penalty to impose at sentencing.

There will not be certainty on how 1512(c)(2) applies to January 6 before June, and such certainty might not come until next June.

With rioters, DOJ has responded to these legal challenges by adopting several backstop positions. With edge cases, it allowed defendants accused of obstruction to plead down to the more serious misdemeanor, 18 USC 1752. With defendants who had some kind of confrontation with the cops, they have charged civil disorder, 18 USC 231. At the beginning of this process, there were the same kind of appellate challenges to 231, too, but those have been significantly resolved. With the Oath Keepers and Proud Boys, DOJ has also added 18 USC 372 charges, conspiracy to prevent Congress from doing its duty of certifying the vote count.

To see how those backstops would work, consider the Oath Keepers found guilty in the first sedition trial. If the obstruction verdict against all five were thrown out, Stewart Rhodes and Kelly Meggs would remain jailed on sedition guilty verdicts, Kenneth Harrelson and Jessica Watkins would remained jailed on 372 verdicts (as well as civil disorder in Watkins’ case), Thomas Caldwell’s other obstruction conviction — obstructing the investigation by destroying evidence — would stand, as would those of Rhodes, Meggs, and Harrelson. There seems to be some movement on plea bargaining in the third Oath Keepers group, which suggests DOJ may be offering some of them 231 pleas as well.

And because of that mens rea requirement, DOJ has had limited success in getting obstruction convictions. A jury hung on obstruction with Riley Williams, and Judge Amy Berman Jackson just acquitted Joshua Black of obstruction as well. Both Williams and Black were found guilty of other felonies.

As I said above, even if the DC Circuit or SCOTUS adopts the most restrictive rulings on existing challenges, an obstruction charge against Trump still should survive. That’s because Trump’s obstruction, which included the recruitment of fake electors to create falsified certificates that members of Congress could use to justify their vote challenges, entails a documentary component that should meet Nichols’ standard. And while the most restrictive imaginable definition of corrupt purpose would include a desire for personal benefit, Trump was seeking the most craven personal benefit of all: to remain President even after voters had fired him.

But the further you get from Trump, the harder proving such a corrupt purpose would be. Did Mark Meadows do what he did because he wanted to remain in a powerful White House position? Did John Eastman do what he did because he was seeking personal benefit? Did Peter Navarro? Did the lower level aides who flew fake elector certificates from state to state? Many of them did what they did because they believe Democrats are illegitimate, just like Clarence Thomas and Sam Alito do, or resent them like Brett Kavanaugh does, and so even that kind of ruling would constrain 1512’s applicability to the stuff that Jack Smith has been appointed to investigate.

Plus, if SCOTUS rules (perhaps driven byBrett Kavanaugh’s ever-festering resentment) that non-investigative Congressional proceedings are not official proceedings, then 18 USC 1512(c)(2) wouldn’t even apply to Trump.

As I alluded to in passing recently, one reason I think the scope of what has become the Jack Smith investigation has expanded, beyond the fact that it is investigating real corruption and the fact that numerous witnesses may be exposed on one part of the scheme and so could be coerced to cooperate on other parts of the scheme, is to backstop the Trump investigation. If you charge fraud based on raising money off false claims about vote fraud, and charge campaign finance violations tied to violating PAC rules, and charge  conspiracy to defraud the US, forgery, and extortion tied to the fake elector plot, then it meets the standard for corrupt purpose that Dabney Friedrich adopted on 1512(c)(2): otherwise illegal activity.

But it also ensures that if SCOTUS throws out the obstruction charge for anyone for January 6, even someone corruptly seeking to remain President after being fired, those other charges would backstop the main charge, just like 18 USC 372 and civil disorder are backstopping charges against the Oath Keepers.

I think Trump has exposure on other charges, too. I believe Trump has exposure to aid and abet charges tied to the assaults his armed mob committed; that’s a lonely position, but I’ll take Amit Mehta’s opinion on the issue over virtually anyone else’s. I’m increasingly confident DOJ is trying to charge Trump in a conspiracy, via at least Alex Jones and Roger Stone, with the Proud Boys and other militias (though what that conspiracy would be depends on the Proud Boy jurors and the various appellate rulings). I wouldn’t be surprised if DOJ used 372 as a backstop with people like Trump, Eastman, and Meadows, just like they did with the two militias.

And DOJ is no doubt doing a similar kind of analysis as it considers whether and if so, how, to charge others who tie Trump and his associates with the crime scene, along with people who, independently of the White House efforts, funded or otherwise abetted the attack. None of that will entirely hold off further charges; in September, DOJ charged Kellye SoRelle, who has ties to the Oath Keepers, Latinos for Trump, and Trump’s efforts to undermine votes in some states, with three counts of obstruction (one of which would not be affected by these appellate issues). But her case has been continued until March. And, in part, because of the centrality of the Proud Boys case to where things go from here, I expect a lot to remain in flux until then on a bunch of other cases.

No matter how much work Jack Smith and his team get accomplished in the weeks ahead, it will be hamstrung by appellate uncertainty around the one charge, most everyone agrees, that should be used to hold Trump accountable.

Resources

Opinions upholding DOJ’s interpretation of 1512(c)(2)

  1. Dabney Friedrich, December 10, 2021, Sandlin*
  2. Amit Mehta, December 20, 2021, Caldwell*
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, NordeanMay 9, 2022, Hughes (by minute order), rejecting Miller
  5. Randolph Moss, December 28, 2021, Montgomery
  6. Beryl Howell, January 21, 2022, DeCarlo
  7. John Bates, February 1, 2022, McHughMay 2, 2022 [on reconsideration]
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, CostianesMay 26, 2022, Fitzsimons (post-Miller)
  10. Christopher Cooper, February 25, 2022, Robertson
  11. Rudolph Contreras, announced March 8, released March 14, Andries
  12. Paul Friedman, March 19, Puma
  13. Thomas Hogan, March 30, Sargent (opinion forthcoming)
  14. Trevor McFadden, May 6, Hale-Cusanelli
  15. Royce Lamberth, May 25, Bingert

Carl Nichols’ interventions:

DC Circuit proceedings

Amit Mehta opinion ruling it plausible that Trump conspired with rioters and the militias: February 18, 2022

David Carter opinion ruling, on 9th Circuit standard, it more likely than not that John Eastman and Trump obstructed vote certification: March 28, 2022

January 6 Committee Executive Summary, including referral for obstruction and other crimes: December 19, 2022


Why Trump’s Lawyer, Evan Corcoran, Says Joe Biden Couldn’t Violate 18 USC 1924

My Twitter feed continues to be inundated by a bunch of experts on the latest talking point telling me why Joe Biden violated the law.

He may have. We don’t know the circumstances surrounding the documents found at his home. Based on what we know, it’s far less likely that Biden broke the law than Trump. But we don’t know.

Virtually all those parroting the latest talking point are misunderstanding the likely law in question — 18 USC 793e, the same law in question with Trump — and how classification works with a former President or Vice President.

Maybe I’ll get into that at more length in days ahead, but for now, I wanted to lay out what Trump, in the voice of his lawyer Evan Corcoran, says about whether Biden could be charged.

Corcoran addressed many of the questions my Twitter experts have shared in a letter sent to Jay Bratt, DOJ’s head of counterintelligence, last May.

First, Trump — in the voice of Corcoran — says if a former President (a Vice President is also a Constitutional Officer) has voluntarily returned documents to the Archives, there should be no leaks about it.

There have been public reports about an investigation by DOJ into Presidential Records purportedly marked as classified among materials that were once in the White House and unknowingly included among the boxes brought to Mar-a-Lago by the movers. It is important to emphasize that when a request was made for the documents by the National Archives and Records Administration (NARA), President Trump readily and voluntarily agreed to their transfer to NARA. The communications regarding the transfer of boxes to NARA were friendly, open, and straightforward. President Trump voluntarily ordered that the boxes be provided to NARA. No legal objection was asserted about the transfer. No concerns were raised about the contents of the boxes. It was a voluntary and open process. Unfortunately, the good faith demonstrated by President Trump was not matched once the boxes arrived at NARA. Leaks followed. And, once DOJ got involved, the leaks continued. Leaks about any investigation are concerning. Leaks about an investigation that involve the residence of a former President who is still active on the national political scene are particularly troubling.

So Trump, in the voice of Corcoran, should be outraged that CBS broke this story before the White House or Attorney General revealed it.

Corcoran says that those vested with constitutionally-based authority to classify and declassify documents have unfettered authority to declassify documents, an argument that Trump still pretends he hasn’t waived both before at least three courts, SDFL, the 11th Circuit, and SCOTUS.

(1) A President Has Absolute Authority To Declassify Documents.

Under the U.S. Constitution, the President is vested with the highest level of authority when it comes to the classification and declassification of documents. See U.S. Const., Art. II, § 2 (“The President [is] Commander in Chief of the Army and Navy of the United States[.]”). His constitutionally-based authority regarding the classification and declassification of documents is unfettered. See Navy v. Egan, 484 U.S. 518, 527 (1988) (“[The President’s] authority to classify and control access to information bearing on national security … flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant.”).

Now, in reality, the authority of the President is not entirely unfettered. As we discussed last fall, nuclear documents require additional people to declassify.

But here’s the thing: There’s good reason to believe that the Vice President has the same authority to declassify documents that the President does.

To the extent that classification is constitutionally tied to Article II authority, it is governed by Executive Order. The Executive Order that governed classification for the entirety of the Trump Administration, and still governs classification, treats the Vice President on par with the President. The EO that governs classified information gives the Vice President the same original classification authority it gives the President, which is where the authority to declassify comes from.

(a) The authority to classify information originally may be exercised only by:

(1) the President and the Vice President;

The language on post-tenure access (which Trump later invoked in arguments before the 11th Circuit) also applies to the Vice President in the same way as the President.

(a) The requirement in section 4.1(a)(3) of this order that access to classified information may be granted only to individuals who have a need-to-know the information may be waived for persons who:

[snip]

(3) served as President or Vice President.

(b) Waivers under this section may be granted only if the agency head or senior agency official of the originating agency:

(1) determines in writing that access is consistent with the interest of the national security;
(2) takes appropriate steps to protect classified information from unauthorized disclosure or compromise, and ensures that the information is safeguarded in a manner consistent with this order; and
(3) limits the access granted to former Presidential appointees or designees and Vice Presidential appointees or designees to items that the person originated, reviewed, signed, or received while serving as a Presidential or Vice Presidential appointee or designee.

Biden could access stuff from when he was Vice President, but he’d have to do so at the Archives and get a waiver first (a waiver that Biden had after his term but Trump, because of a decision by Biden, did not).

Now, to be clear, none of this has been tested. Much of this language is a legacy of changes in a prior EO that Dick Cheney oversaw in March 2003, which were key in the Valerie Plame investigation.

Some of that is covered in this post I did in 2017, in which I asserted that Mike Pence had declassification authority.

But the fact of the matter is that Joe Biden could say, if he were ever charged, that his understanding is that his authority to classify and declassify as Vice President was the same as the President’s, and over the entire four years of the Trump Administration, Trump did nothing with his unfettered authority to change that (nor has Biden since).

In reality, Trump didn’t declassify these documents, nor did Biden. Trump has now waived his opportunity to claim he declassified these documents legally repeatedly. (Biden could have legally declassified them when he found them; instead he returned them to the Archives.)

But there’s good reason to believe that Corcoran’s arguments about Trump — for the little they’re worth — would apply equally to Biden as to Trump, thanks, in part, to Dick Cheney.

How about them apples, huh?

By far the most interesting argument Corcoran makes, though, is that the statute that most Twitter experts think is at issue, 18 USC 1924, cannot apply to the President, because the President — like the Vice President — is not an “officer” appointed by the President.

(2) Presidential Actions Involving Classified Documents Are Not Subject To Criminal Sanction.

Any attempt to impose criminal liability on a President or former President that involves his actions with respect to documents marked classified would implicate grave constitutional separation-of-powers issues. Beyond that, the primary criminal statute that governs the unauthorized removal and retention of classified documents or material does not apply to the President. That statute provides, in pertinent part, as follows:

Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than five years, or both. 18 U.S.C. § 1924(a).

An element of this offense, which the government must prove beyond a reasonable doubt, is that the accused is “an officer, employee, contractor, or consultant of the United States.” The President is none of these. See Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 497-98 (2010) (citing U.S. Const., Art. II,§ 2, cl. 2) (“The people do not vote for the ‘Officers of the United States.”‘); see also Melcher v. Fed. Open Mkt. Comm., 644 F. Supp. 510, 518-19 (D.D.C. 1986), aff’d, 836 F.2d 561 (D.C. Cir. 1987) (“[a]n officer of the United States can only be appointed by the President, by and with the advice and consent of the Senate, or by a court of law, or the head of a department. A person who does not derive his position from one of these sources is not an officer of the United States in the sense of the Constitution.”). Thus, the statute does not apply to acts by a President. [my emphasis]

Corcoran made what could be a grave error with this legal analysis, which I’ll get to, but it’s not necessarily in his read about Constitutional officers.

In fact, DOJ seems to agree with Corcoran that Trump’s actions — taking classified documents home at the end of his term and keeping them — are not covered by this law. It was not among the crimes for which they had demonstrated probable cause on Trump’s search warrant affidavit.

It may be DOJ believes that because they agree with Corcoran, that Constitutional Officers who are elected directly by voters are not subject to this law.

It may also be that they believe that because it is routine for Presidents and Vice Presidents, when leaving office, to remove their papers from their official residences and offices and then sort through the stuff they have to send to the Archives. A CNN report describes that Biden, like Trump, didn’t wrap up his office until the last minute (though for different reasons — Trump didn’t because he was still trying to cling to power, whereas Biden didn’t because he was still working). The result was the same, though: the process was rushed and disorderly.

That is, it is possible that the removal of documents at the end of an Administration is not, per se, considered criminal because of how White Houses transition.

Whatever it is, there is nothing about the known fact set about Biden that would make this law apply to Biden if it did not with Trump. Both are believed to have retained stuff they took with them when they left their offices in a hurry.

If 18 USC 1924 cannot apply to Trump, like Evan Corcoran said, then it cannot apply to Biden.

I said, above, that Corcoran may have made a grave error in his analysis. That’s because he didn’t consider whether 18 USC 793, the law we know is under investigation, could apply to a former President (or Vice President). And that appears to have led him to give Trump really bad advice, allowing him to refuse to give back classified documents when asked.

That is a crime.

Taking classified documents unknowingly is probably not a crime, especially for a President or Vice President. Refusing to give them back may well be. That’s the question before Jack Smith, as well as the obstruction question. That’s probably the question before Robert Hur.

How about them apples, huh?

There’s one more interesting thing Corcoran said in his letter. He demanded that DOJ adhere to the White House contact policies that were routinely violated under the Trump Administration.

(3) DOJ Must Be Insulated From Political Influence. According to the Inspector General of DOJ, one of the top challenges facing the Department is the public perception that DOJ is influenced by politics. The report found that “[o]ne important strategy that can build public trust in the Department is to ensure adherence to policies and procedures designed to protect DOJ from accusations of political influence or partial application of the law.” See https://oig.justice.gov/reports/top-management-and-performance-challengesfacing-depatiment-justice-2021 (last visited May 25, 2022). We request that DOJ adhere to longstanding policies and procedures regarding communications between DOJ and the White House regarding pending investigative matters which are designed to prevent political influence in DOJ decision-making.

He’s not wrong that those contact policies should be upheld. And whatever else you think about Merrick Garland’s decision to appoint for John Lausch and then Robert Hur to investigate this, the necessity to uphold contact policies, to which Garland has (as far as is public) adhered to rigorously, is a really good reason to appoint a Special Counsel (and, for that matter, for the White House to be very reserved about its public comments). Trump’s favorite way of violating the contact policy was to Tweet something that would, fairly routinely, be followed almost immediately by DOJ taking action, including on criminal cases (most notably with Roger Stone’s).

Indeed, Biden’s people have said that one reason they have not issued more public comments was in an attempt to avoid even appearing to influence the process.

They should revert to that stance, in my opinion, and point to Evan Corcoran’s letter as authority to do so.

Evan Corcoran said a lot of things. He’s not a national security expert though, so if I were Biden, I wouldn’t rely on it.

But we should be able to rely on his argument that Trump doesn’t think that Biden should be charged, at least not with 18 USC 1924.


If the Former President Gets Top Billing in a Sedition Trial But You Didn’t Bother to Notice …

There’s a weird passage in a column that Charlie Pierce published today, announcing that,

[M]y patience with Attorney General Merrick Garland and his dilatory pursuit of the former president* and the various thieves and yahoos under his employ is now exhausted.

… Because Garland has …

let the investigation into the crimes of Donald Trump go on long enough that the forces of public reaction could gather sufficient strength to muddy the evidence and deaden the outrage.

It’s this passage: Charlie claims that the “announcement” of a subpoena, which he attributes to Jack Smith, got lost amid the news of the investigation into the classified documents found in President Biden’s possession.

This was a distressing week, a week in which it seemed that a lot of criminal consequence was slipping away. Again. That’s probably unfair, considering Jack Smith, the special counsel Garland put in charge of the investigations into the previous administration*, unloaded a blast of canister fire, dropping subpoenas on people associated with almost every dubious enterprise conducted between 2017 and 2020, even the post-election grift in which the former president* fleeced the rubes for his purported probe into “voting irregularities,” an enterprise with the credibility of OJ Simpson’s search for the real killers. That’s genuine momentum—except that the announcement was lost in the hurly-burly of the Biden documents.

There was no announcement.

What Charlie treats as an “announcement” is a WaPo story, on which Mar-a-Lago Court Reporter Josh Dawsey is the first byline and Devlin Barrett is the second, describing a subpoena sent out on December 9, just three weeks and a Thanksgiving holiday after Jack Smith was appointed and over a month before the story itself. Charlie considers the subpoena “a blast of canister fire,” and hails the “genuine momentum,” but complains that “the announcement was lost in the hurly-burly of the Biden documents.”

Charlie doesn’t consider that this paragraph is itself an admission on his part that stuff can go on — stuff that he considers really impressive — and he might not find out about it for over a month. He says that about a story that describes that, “the Jan. 6 grand jury had accelerated its activities in recent weeks, bringing in a rapid-fire series of witnesses, both high and low level,” but doesn’t describe who those witnesses are (and whose testimony, with the exception of about seven people — Rudy Giuliani, Stephen Miller, Dan Scavino, William Russell, Beau Harrison, and the two Pats, Philbin and Cipollone, has not otherwise been reported). He says that of a story that linked an earlier WaPo story, dated September 16 and so describing developments that preceded Jack Smith’s arrival by two months, that described dozens of subpoenas requesting communications with more than 100 people.

Dozens of subpoenas issued last week show that the Justice Department is seeking vast amounts of information, and communications with more than 100 people, as part of its sprawling inquiry into the origins, fundraising and motives of the effort to block Joe Biden from being certified as president in early 2021.

That’s the investigation, still under Garland, that Charlie calls “dilatory.”

And Charlie says that the same week that a third January 6 sedition trial kicked off by showing Donald Trump’s call on the men standing trial for sedition to “Stand Back and Stand By.”

As Charlie’s statement admits, his is partly a complaint about the press, which was focused on Biden’s legal discomforts rather than more important things, like Trump’s attempted coup.

Of course, Charlie is part of the press.

And Charlie, part of the press, made no mention of Trump’s prominence in DOJ’s Proud Boys opening argument. Charlie wants a compelling trial the likes of the Nuremberg Trials, yet the most important January 6 trial to date tied Trump’s actions directly to the overt acts in this alleged sedition conspiracy, and Charlie made no mention of the fact that Trump’s comments were presented as evidence in a sedition trial.

A huge part of Charlie’s complaint is about the evidence that he can see.

[Nuremburg Prosecutor Robert Jackson] wanted the rule of law to do more than simply demonstrate its strength. He wanted that strength used, firmly and relentlessly, in the pursuit of justice. Garland may be doing the same thing, but there’s damn little evidence of it, and this week, everything seemed to be running in the opposite direction.

It’s not actually clear whether Charlie even knows that Trump’s incitement of the Proud Boys played a central role in the opening argument of a sedition trial, though dozens of reporters covered it, a number in real time. Many of those reporters are exhausted, though exhausted not so much about their perceptions of Garland, but because they’ve given up evenings and weekends for two years to make sure these events get covered.

If the former President gets top billing in a sedition trial but you didn’t bother to notice, does it count as evidence about DOJ investigations?

My January 6 anniversary post last year was about how unknowable January 6 is, particularly for anyone not working full time to know it.

To have something that poses such an obvious risk to American democracy remain so unknowable, so mysterious — to not be able to make sense of the mob that threatens democracy — makes it far more terrifying.

In recent weeks, those of us doing that full time have learned still more about how vast it all is — and how many tools the January 6 Committee withheld from prosecutors six months after the prosecutors had urgent need of them.

In those same recent weeks, two years into this thing, I’ve come to new realizations about how complex this is: it’s not just an investigation into a former President protected by Executive Privilege and at least six people protected by the Speech and Debate clause, but it’s also an investigation in which at least 26 key witnesses or subjects are lawyers protected by Attorney-Client Privilege. I’ve developed new theories about how DOJ — the same AUSAs who’ve been working 24/7 on this case for two years, before and after Jack Smith got involved — aspires to chisel away at those unprecedented protections. I’ve also increasingly seen gaps, both in PACER dockets and subpoenas, where investigative subjects used to be, gaps which sometimes suggest progress that DOJ needs to protect, progress that even those of us following full time might only confirm four months after the fact and only if we happen to be listening in real time when a lawyer blurts something out he shouldn’t have.

Charlie says this was a distressing week.

This was a distressing week, a week in which it seemed that a lot of criminal consequence was slipping away.

It was a distressing week for me, too, in part for the same reasons as it was for everyone else: watching the members of Congress who participated in an insurrection launch their efforts to muddle the truth again, watching the same insurrectionists encourage a coup attempt in Brazil, losing sleep over whether American democracy can be saved.

But it was distressing for another reason: because so many really smart people I respect — and I include Charlie among them — have responded to the unknowability of January 6 not by attempting to grab ahold of something to ensure their own meanderings remain grounded in evidence, but instead by making authoritative assertions about evidence that are, instead, confessions that great swaths of this investigation are proceeding without them noticing.

One major reason we’re all so distressed is because truth is under assault — because Jim Jordan intends to spend the next two years turning Trump’s crimes into victimhood, just as he spent the entirety of Trump’s presidency doing.

But making authoritative claims about evidence without knowledge of the evidence only makes his job easier, in part because it stoops to his level, in part because it magnifies the anxiety.

You don’t respond to an assault on truth by permitting yourself to fill the vacuum created by the unknowability of January 6 with claims that themselves do not present the truth, that ignore key pieces of evidence that — while public — may have gone unnoticed.

Charlie Pierce wants trials the likes of the Nuremberg Trials, which were so powerful because the architects of an authoritarian conspiracy were tied to the events that took place at the crime scenes. And DOJ took a key step in doing that week — a key step in an effort that has been obviously in the works for 18 months, an effort that started on January 4, 2021, when Enrique Tarrio’s phone was seized (his phone, which ties the Proud Boys to other organizers, took over a year to exploit), and took another step on January 7, 2021, when the first Proud Boy who would plead guilty to obstruction was arrested.

And yet Charlie Pierce has seen no evidence of that.

Update: I’ve fixed the January 7 detail: that was a reference to Nicholas Ochs, who was arrested when he arrived back in Hawaii. He and Nicholas DeCarlo were charged with conspiring with each other to obstruct January 6, and they did plan together. But both pled to obstruction, not conspiracy. They were both sentenced to 4 years in prison.


Kash Patel Wants the Insurrection Protection Committee to Investigate Why Robert Hur Tried to Protect Past Ongoing Investigations

Matt Taibbi (aka MattyDickPics) and Kash Patel are whining about the Nunes Memo again.

As you’ll recall, in the first year of the Trump Administration, Patel wrote a misleading memo for Devin Nunes purporting that the entire Russian investigation stemmed from the Steele dossier.  When the Carter Page IG Report and FISA applications were released, it became clear how Patel spun the facts. In this post I cataloged what both Nunes and Adam Schiff, in his counterpart to the Nunes memo, got wrong.

But it’s not the Nunes Memo itself that Taibbi and Patel are whining about. They’re complaining about the circumstances of its release five years ago.

Taibbi made it the subject of his latest Twitter Files propaganda thread and related Substack — the latter of which, astoundingly, says the public has to rely on the attributions of cloud companies, something Taibbi has always refused to do when discussing the GRU attribution of the 2016 hacks targeting Democratic targets. “It’s over, you nitwits. It’s time to stow the Mueller votive candles, cop to the coverage pileup created by years of errors, and start the reconciliation process,” Taibbi says, in appealing to precisely the kind of evidence he himself has refused to credit for more than six years. I dealt with both in this thread, but the important takeaway is that Taibbi doesn’t even manage to get facts that both the Daily Beast and I were able to cover in real time, including the fact that Republicans, too, were making unsupported claims based on the Dashboard’s reporting and Russian trolls were part of — just not the biggest part — of the campaign.

[A] knowledgeable source says that Twitter’s internal analysis has thus far found that authentic American accounts, and not Russian imposters or automated bots, are driving #ReleaseTheMemo. There are no preliminary indications that the Twitter activity either driving the hashtag or engaging with it is either predominantly Russian.

In short, according to this source, who would not speak to The Daily Beast for attribution, the retweets are coming from inside the country.

The source pointed to influential American users on the right, including Donald Trump Jr., with his 2.49 million followers, pushing the hashtag forward. It’s become a favorite of far-right Republican congressmen, including Steve King, who claimed the still-secret memo shows the FBI was behaving “worse than Watergate” in one viral tweet. Mark Meadows called it an “absolutely shocking” display of “FISA abuses,” referring to a counterintelligence process.

Rules of Engagement

There are reasons for skepticism about both the source’s claim and Alliance for Securing Democracy’s contrary findings.

Russian influence accounts did, in fact, send an outsize number of tweets about #ReleaseTheMemo—simply not enough for those accounts to reach the top of Twitter’s internal analysis.

Meanwhile, Kash Patel is outraged that Merrick Garland picked Robert Hur as Special Counsel to investigate Biden’s mishandling of classified documents because, when and after serving as a top aide to Rod Rosenstein in the early days of the Russian investigation, he opposed release of the memo.

This guy Hur needs to be the first one subpoenaed by the new Special Select Committee under Jim Jordan’s authority on the weaponization of government and do you want to know why? Because Hur — we have the receipts, Steve, and we’re going to release them later — was sending communications to the Justice Department and Rod Rosenstein’s crew arguing against the release of the Nunes memo. Saying that it would bastardize and destroy the United States national security apparatus. This guy is a swamp monster of the Tier One level, he’s a government gangster, he’s now in charge of the continued crime scene cover-up, which is why the first congressional subpoena that has to go out for the weaponization of government subcommittee is against Hur.

Remember, this committee was modified during the period when key insurrectionists were refusing to vote for Kevin McCarthy to include language authorizing the committee to investigate why the Executive Branch is permitted to conduct criminal investigations of US citizens.

the expansive role of article II authority vested in the executive branch to collect information on or otherwise investigate citizens of the United States, including ongoing criminal investigations;

It may be the intent to interfere in ongoing investigations into people like Scott Perry and Paul Gosar (who changed their votes on McCarthy later in the week, as these changes were being made) and Jordan (who will have great leeway to direct the direction of this committee). But Jordan may be surprised when he discovers that Merrick Garland will enforce the long-standing DOJ policies about providing Congress access to ongoing investigations that Jeff Sessions and Matt Whitaker and Bill Barr did not. Indeed, some precedents from the Russia investigation legally prohibit the sharing of this information with Congress.

But Kash’s complaint (back atcha with the rap gangsta alliteration, Kash!) is a bellybutton moment in which he attempts to villainize Hur’s past commitment to those long-standing DOJ (and intelligence community, including the NSA that conduct much FISA surveillance) policies. Consider the things the memo revealed, many of which had never before been released publicly.

  • Details about the dates and approvals for four FISA orders
  • Financial details involving private individuals, including US citizens
  • Contents of the FISA memo (but not their true context)
  • A reference to a Mike Isikoff article that appeared in the Carter Page applications; Kash was outraged when his own public article was included in the warrant affidavit targeting Trump
  • Details from a Confidential Human Source file
  • Misrepresentations about both Bruce Ohr and his spouse, the latter of whom was a private citizen whose work was shared with the FBI as part of the effort to vet the dossier
  • Direct communications with the President-elect the likes of which Trump claimed were covered by Executive Privilege in the Mueller investigation
  • False claims about the texts between Peter Strzok and Lisa Page that are currently the subject of two Privacy Act lawsuits; even aside from the privacy implications, at the time it was virtually unprecedented for texts between FBI officials to be released, even in criminal discovery (and many of these released, including some misrepresented in the memo, pertained to work matters unrelated to the Russian investigation)

In other words, Kash Patel wants to investigate Hur’s comments, made either at the time he was the key overseer of the Mueller investigation or during a transition period as he awaited confirmation to be US Attorney, advocating that DOJ protect informants, FISA materials, details about private citizens, and work texts between FBI officials.

The very first thing Kash wants the Insurrection Protection Committee to investigate is why, five years ago, a senior DOJ official advocated following long-standing DOJ policy.


Merrick Garland Appoints a Special Counsel in Biden Documents Case

Given the discovery of two sets of documents at Joe Biden’s house, Merrick Garland has appointed former Maryland US Attorney Robert Hur as Special Counsel to investigate that case.

I don’t think this is a bad thing. It will eliminate any claim of bias and ensure a report can be filed at the end. And it will stave off GOP interference in the case.

Garland described the following timeline.

November 4: NARA informs DOJ of the documents

November 9: FBI conducts an assessment to understand whether classified information was mishandled

November 14: Garland assigned US Attorney Lausch to conduct initial investigation

December 20: Biden’s counsel informed Lausch of additional documents in the Wilmington garage

January 5: Lausch briefed Garland of initial investigation and recommended further investigation

January 11: Biden informed Lausch of an additional document from Biden’s personal residence

Update: Hur’s statement:

I will conduct the assigned investigation with fair, impartial, and dispassionate judgment. I intend to follow the facts swiftly and thoroughly, without fear or favor, and will honor the trust placed in me to perform this service.

 


Yes, It Turned Out January 6 Committee Endangered the DOJ Investigation by Withholding the Jeremy Bertino Transcript in June

I often get accused of being an uncritical booster for DOJ on the January 6 investigation. In reality, I have focused my criticism on real problems with the investigation.

In fact several of the criticisms I’ve raised have borne out in recent days, as an attorney-client conflict that should have been identified in June threatened (and still threatens) to bollox the Proud Boy Leader trial, and with it the larger effort to tie Trump’s immediate associates with the crime scene.

Twice, for example, I’ve discussed how central Joe Biggs’ actions the day of the attack were to understanding the larger event. In the first, I described how Biggs’ chumminess with FBI agents led them to overlook his plans for a terrorist attack on the Capitol.

Something brought Joe Biggs, Florida Oath Keepers Kenneth Harrelson and Jason Dolan, along with former Biggs employer Alex Jones to the top of the East steps, along with the mob that Jones brought on false pretenses. Shortly thereafter, Florida Oath Keeper head Kelly Meggs would bring a stack of Oath Keepers through the same door and — evidence suggests — in search of Nancy Pelosi, whom Meggs had talked about killing on election day.

Joe Biggs kicked off the riot on the West side of the building.

Then he went over to the East side to join his former employer Alex Jones and a bunch of Oath Keepers, led by fellow Floridians, to lead a mob back into the Capitol.

West side. Joe Biggs. East side. Joe Biggs.

This is the guy a couple of FBI Agents in Daytona believed was a credible informant against Antifa.

A month later, I described how problematic it was that an AUSA who played a part in Sidney Powell’s efforts to spread false claims about Mike Flynn and Joe Biden before the 2020 election had a role (now reportedly expanded) in overseeing the prosecution of Biggs.

Because of Joe Biggs’ role at the nexus between the mob that attacked Congress and those that orchestrated the mob, his prosecution is the most important case in the entire January 6 investigation. If you prosecute him and his alleged co-conspirators successfully, you might also succeed in holding those who incited the attack on the Capitol accountable. If you botch the Biggs prosecution, then all the most important people will go free.

Which is why it is so unbelievable that DOJ put someone who enabled Sidney Powell’s election season lies about the Mike Flynn prosecution, Jocelyn Ballantine, on that prosecution team.

All that was clear by September 2021.

In that same time period, I was complaining and complaining and complaining about DOJ’s lackadaisical approach to attorney conflicts, first as John Pierce racked up 20 clients, most who served as a firewall to Biggs and the other Proud Boy leaders, and later as DOJ waited three months before inquiring into Sidney Powell’s alleged role in funding some of the Oath Keeper’s defense teams.

The importance to the Trump investigation of getting the militia conspiracies that implicate Roger Stone and Alex Jones right is one of the reasons I argued, in June 2022, that it was urgent for the Proud Boys’ prosecution team to get Jeremy Bertino’s transcript sooner rather than later.

On June 6, DOJ charged the Proud Boy Leaders with sedition. As I noted at the time, the single solitary new overt act described in the indictment involved Jeremy Bertino, Person-1, seeming to have advance knowledge of a plan to occupy the Capitol.

107. At 7:39 pm, PERSON-1 sent two text messages to TARRIO that read, “Brother. ‘You know we made this happen,” and “I’m so proud of my country today.” TARRIO responded, “I know” At 7:44 pm. the conversation continued, with PERSON-1 texting, “1776 motherfuckers.” TARRIO responded, “The Winter Palace.” PERSON-1 texted, “Dude. Did we just influence history?” TARRIO responded, “Let’s first see how this plays out.” PERSON-1 stated, “They HAVE to certify today! Or it’s invalid.” These messages were exchanged before the Senate returned to its chamber at approximately 8:00 p.m. to resume certifying the Electoral College vote.

Just days earlier, as part of a discovery dispute, prosecutors had provided this (dated) discovery index. For several reasons, it’s likely that at least some these entries pertain to Bertino, because the CE ones are from the Charlotte office, close to where he lives, because he’s one of the three uncharged co-conspirators of central importance to the Proud Boys efforts, and because we know FBI did searches on him.

In a hearing during the day on June 9, the Proud Boys’ attorneys accused DOJ of improperly coordinating with the January 6 Committee and improperly mixing politics and criminal justice by charging sedition just before the hearings start. In the hearing there was an extensive and repeated discussion of the deposition transcripts from the committee investigation. AUSA Jason McCullough described that there had been significant engagement on depositions, but that the January 6 Committee wouldn’t share them. As far as he knew, the Committee said they would release them in September, which would be in the middle of the trial. Joe Biggs’ attorney insisted that DOJ had the transcripts, and that they had to get them to defendants.

Judge Tim Kelly ordered prosecutors that, if they come into possession of the transcripts, they turn them over within 24 hours.

Hours later, during the first (technically, second) January 6 Committee hearing, the Committee included a clip from Bertino describing how membership in the Proud Boys had tripled in response to Trump’s “Stand Back and Stand By” comment.

His cooperation with the Committee was not public knowledge. I have no idea whether it was a surprise to DOJ, but if it was, it presented the possibility that, in the guise of cooperating, Bertino had just endangered the Proud Boy sedition prosecution (which wouldn’t be the first time that “cooperative” Proud Boys proved, instead, to be fabricators). At the very least, it meant his deposition raised the stakes on his transcript considerably, because DOJ chose not to charge him in that sedition conspiracy.

Today, in response to a bid by Dominic Pezzola and Joe Biggs to continue the trial until December, DOJ acceded if all defendants agree (Ethan Nordean won’t do so unless he is released from jail). With it they included a letter they sent yesterday to the Committee — following up on one they sent in April — talking about the urgency with which they need deposition transcripts.

We note that the Select Committee to Investigate the January 6th Attack on the United States Capitol (“Select Committee”) in its June 9, 2022 and June 13, 2022, hearings extensively quoted from our filings in active litigation and played portions of interviews the Select Committee conducted of individuals who have been charged by the Department in connection with the January 6th Attack on the United States Capitol.

It is now readily apparent that the interviews the Select Committee conducted are not just potentially relevant to our overall criminal investigations, but are likely relevant to specific prosecutions that have already commenced. Given this overlap, it is critical that the Select Committee provide us with copies of the transcripts of all its witness interviews. As you are aware, grand jury investigations are not public and thus the Select Committee does not and will not know the identity of all the witnesses who have information relevant to the Department’s ongoing criminal investigations. Moreover, it is critical that the Department be able to evaluate the credibility of witnesses who have provided statements to multiple governmental entities in assessing the strength of any potential criminal prosecutions and to ensure that all relevant evidence is considered during the criminal investigations. We cannot be sure that all relevant evidence has been considered without access to the transcripts that are uniquely within the Select Committee’s possession.

The discovery deadline for the Proud Boy case is tomorrow. If DOJ put Bertino before a grand jury and he said something that conflicts with what he told the Committee, it could doom his reliability as a witness, and with it the Proud Boys case, and with it, potentially, the conspiracy case against Trump.

Less than a week before I wrote that, there’s reason to believe, DOJ had flipped a key witness in the case.

It appears that DOJ did not get Jeremy Bertino’s transcript until around December 7. DOJ promised to give transcripts to the defendants within 24-hours after they received them, and DOJ provided 16-January 6 Committee transcripts on December 8.

And we now know the Bertino transcript was utterly critical to preparing for the trial, which is about to kick off. That’s because, in his deposition with the committee, Bertino explained at length both what appeared to be an attempt, by Joe Biggs’ attorney Dan Hull, to tie representation in a civil lawsuit to a deposition in the trial, and because Bertino had conversations with Hull on the day his girlfriend’s home was searched (which is probably when the FBI found the unregistered weapons described in Bertino’s plea paperwork).

A Yes. So I’m going to go back in my memory and try to remember the first time that I spoke with him. I believe it was after I received a civil suit from a church. I reached out to Enrique Tarrio and said, hey, I just got this subpoena or notice of civil suit. I think I need an attorney. And he’s like, oh, well, I’ll talk to Dan, my attorney, and I’ll see if he’ll take it for you. So I said okay. Couple of weeks went by, I didn’t hear anything. I got back in touch with Enrique and asked him, I said, hey, have you talked to your lawyer? And he’s, like, oh, yeah, Dan said he’ll do it for you pro bona because you were stabbed, but he wants to talk to you.

And so he sent me his phone number and I called Dan. I can’t remember when, what date, I don’t remember the specific details, but I do remember calling him and him basically asking me — or I was asking him about representing me in the case and he said oh, sure, sure, sure, we’ll get to that. But he was interested in possibly having me take the stand in the Joe Biggs’ trial about my stabbing to show why Joe was wearing body armor when he was in D.C. because there was a lot of talk after I was stabbed about guys making sure you had a stab proof vest on and stuff like that.

So I think his original intent was to get me on board to help his client. And then the next — I believe the next interaction I had was when I — Jay Thaxton reached out to me and was looking for representation for his deposition. And I said, hey, give this guy Dan a call. I sent him Dan’s number. And I guess Dan took care of his deposition, which I, you know, when I kind of heard what happened there, that’s when I became reluctant to have him represent me in this.

He didn’t seem very stable on the phone. I started to really listen to when he was talking and his rants, and I was, like, okay, this guy– I don’t think this guy’s great for me.

And then the morning that the FBI raided my girlfriend’s house I reached out to him because he was the only attorney that I knew and I was just kind of asking him for advice on how to handle everything.

And I specifically asked him for a retainer, like, can we sign a retainer paperwork, and he was, like, not right now, not right now. And I said okay.

Then a few days later, he asked — he called me — he would call me randomly late at night and go on, like, an hour rant about how the Proud Boys were little girls and just, I mean, off the rail conversations. I didn’t know what he was talking about. I was, like, my brain was popping trying to figure out what he was talking about. Then I believe he came to me and said, well, I’m going to — he said, do you want me to accept service on your behalf for the congressional thing, he said, but I’m not going to be able to be there because that date doesn’t work for me, so you’re going to have to go do it on your own.

I said no — and this was on a phone conversation, not a text conversation — I said no. He’s like, well, take 48 hours and think about it. This was on like a — I don’t even remember what day, but I believe it was the day before he actually accepted service from you guys. And he never got confirmation from me to accept service.

He said, well, just take 48 hours and think about it. I said, okay.

Next phone call I got from him was, hey, I accepted service, your date for your deposition is this day, and I’m not going to be there so you’re going to be on your own.

And that is pretty much when I cut off contact, I stopped responding to his calls and his text messages, and I hired Mr. Wellborn.

Bertino’s prior conversations with Hull were made all the more urgent because Norm Pattis, Alex Jones’ attorney, just got kicked off the case after having his license suspended in Connecticut for violating the Sandy Hook protective order, something we all knew was coming since November. [Update: Judge Tim Kelly is letting Pattis stay on the team, though it’s unclear in what role.]

Yesterday and today, Judge Tim Kelly hammered out some plan whereby Hull will be prevented from questioning Bertino, but that in no way eliminates the conflict. That in no way eliminates the risk of having Hull serve as the sole attorney in a case where he had privileged conversations with one of the key cooperating witnesses.

The J6C Committee is significantly to blame about this — at least by the time Bertino’s plea became public, they had to have recognized this conversation needed to be shared with prosecution.

But DOJ itself should have raised conflict issues with Pattis. At the time he joined Biggs’ team last summer, he was already representing Jones’ sidekick, Owen Shroyer, who had a bunch of calls with both Ethan Nordean and Biggs in advance of and during the attack.

Other, more prominent members of the Proud Boys appear to have been in contact with Jones and Shroyer about the events of January 6th and on that day. Records for Enrique Tarrio’s phone show that while the attack on the Capitol was ongoing, he texted with Jones three times and Shroyer five times.124 Ethan Nordean’s phone records reflect that he exchanged 23 text messages with Shroyer between January 4th and 5th, and that he had one call with him on each of those days.125 Records of Joseph Biggs’s communications show that he texted with Shroyer eight times on January 4th and called him at approximately 11:15 a.m. on January 6th, while Biggs and his fellow Proud Boys were marching at and around the Capitol.126

Meanwhile, the emergency motion to keep Pattis on the trial team claimed that both he and Hull are representing Jones.

He was suspended for disclosing confidential medical records to other lawyers working on related matters for our joint client, Alex Jones;

This is insanity! You’ve got two lawyers, both facing major ethical challenges, jointly representing Biggs, Jones, and Shroyer in prosecutions aiming to demonstrate that after Trump asked him to lead a mob to the Capitol, Jones coordinated the delivery of that mob to the Proud Boys.

And Pattis’ suspension will upend the prosecutions of both Shroyer — who at least claimed he would plead guilty at the end of this month — and a guy named Doug Wyatt, who has long been pegged by researchers as one of the rioters who seemed like he might be coordinating with others.

While a lot of people were wailing that J6C was way ahead of DOJ, I was raising concerns about the things that may upend the most important prosecution to date: that Bertino transcript and attorney conflicts.

It turns out I had reserved my complaints for the stuff that, as the trial kicks off, could be the thing that sinks it.

Copyright © 2023 emptywheel. All rights reserved.
Originally Posted @ https://www.emptywheel.net/author/emptywheel/page/2/