Archive for category: emptywheel

Why No One Went to Prison for Rudy Giuliani’s Hunter Biden Corruption

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Like many people, I’ve watched From Russia with Lev since it was released the other day.

The documentary tells a story I’ve covered here in real time: of how, with Lev Parnas’ help, Rudy Giuliani solicited dirt on Hunter (and Joe) Biden from foreigners, mobsters, and Russian spies, in hopes of helping Trump stay in office.

As told, with Lev’s spouse Svetlana serving as a key narrator, it’s a compelling, personal story.

I’ve also told — am one of the only people who has told — the story that many people are now asking: why no one went to prison for this caper. The documentary has led many people, understandably, to demand to know why no one (besides Lev, they sometimes say, inaccurately) went to prison for all this, which has, predictably, led to the same conspiratorial bashing of Merrick Garland we saw with the January 6 investigation.

The question is premised on certain choices the filmmakers made: focusing away from Dmitry Firtash and especially from Andrii Derkach (who got involved after Lev was done), crediting the spin of Lev’s attorney, Joseph Bondy, and simplifying the investigation of Hunter Biden. The film doesn’t fill in any of the gaps I noted in Lev’s book, and creates new ones. It creates the appearance that Lev was prosecuted solely to protect Trump from impeachment and that the investigation into Hunter arose solely out of Rudy’s efforts. Those choices make sense for narrative and legal reasons, but as a good story does, it simplifies the issue.

And I promise you, the film vastly understates the corruption that went on. Wildly understates it. One goal I have for Ball of Threads is to unpack what is currently known of that far deeper corruption, but that still just scratches the surface.

The quick explanation of why Rudy didn’t go to prison for this is that:

  • Bill Barr did wildly corrupt things to protect him, Donald Trump, and himself
  • By the time, shortly into the Biden administration, DOJ tried to pursue Rudy, Rudy’s phones were corrupted

Trying to hold Garland responsible for failing to prosecute the underlying crime amounts to doing Bill Barr’s propaganda work, because Barr worked relentlessly to protect Rudy.

You can, however, hold Garland responsible for one thing: the continued appointment as Special Counsel of David Weiss, who as a witness to Barr’s corruption, is conflicted in any investigation pursuing Alexander Smirnov’s attempts to criminally frame Joe Biden.

This post explains all that in more detail.

 

Lev didn’t go to prison for the Hunter Biden stuff

As I said, the film leaves the impression that Lev was arrested to protect Trump during impeachment by silencing the key witness.

But that’s not why Lev went to prison (as a news clip in the movie tacitly admits).

Lev and Igor Fruman (along with David Correia and Andrey Kukushkin) were first charged on October 9, 2019, via indictment that was (according to then US Attorney for SDNY Geoffrey Berman’s memoir) drafted quickly overnight in advance of Lev and Igor’s trip to meet Dmitry Firtash in Vienna. From Berman’s memoir, I’m not 100% sure whether he pushed it because he genuinely feared they were about to flee the country, felt he had to do so before Barr intervened … or for more nefarious reasons.

The charges were:

  • Conspiring to make a bunch of political donations in the name of Global Energy Producers
  • Lying to the Federal Election Commission
  • Falsifying a document to the FEC
  • Laundering donations from Russian Andrey Muraviev to pay pro-cannabis politicians

As Bondy described, the indictment implied that Lev and Igor’s political contributions to Pete Sessions were tied to an attempt to fire Marie Yovanovitch. But that was not charged as FARA.

On September 17, 2020, the indictment was superseded. Lev and Correia’s longterm Fraud Guarantee fraud was added and the charges tied to Muraviev (who was secretly indicted that same day) were bumped up. The paragraph describing a payment to Sessions took out the reference to an Ambassador, describing it instead as to “further their political goals.” There were still no FARA charges though.

Ultimately, Lev was convicted at trial in October 2021 of the GEP and Muraviev donations, and in March 2022, pled guilty to the fraud guarantee charges. He was never charged with FARA violations.

Bondy’s insinuation that SDNY took out the foreign agent aspect to protect Rudy is wholly inconsistent with the warrants (linked below) targeting Lev and Rudy unsealed last year.

They show that the investigation into Lev, which started based on a Campaign Legal Center complaint, initially focused on campaign finance crimes. In August 2019 — after the firing of Marie Yovanovitch but before the disclosure of the Perfect Phone Call — SDNY began to turn to Foreign Agent suspicions (though one of two warrants obtained in August 2019 was not executed). After the arrest, SDNY more aggressively turned to developing the Foreign Agent prong of the investigation. On November 4, 2019, SDNY obtained warrants targeting Rudy (which were not released last year). On December 10, 2019, the Foreign Agent prong continued.

That’s when Bill Barr intervened to kill that prong of the investigation, certainly as it pertained to Rudy, as I’ll lay out below.

After that point, SDNY focused on the Fraud Guarantee fraud.

It’s not that Lev went to prison for this but Rudy did not. On the contrary, Barr worked hard to ensure no one could go to prison on such charges.

While Barr was doing that, SDNY appears to have put that investigation on ice and attempted, without success, to resuscitate once Barr was out of office.

SDNY believed Lev was not fully forthcoming

The film makes it sound like SDNY refused Lev’s efforts to cooperate against Rudy and everyone else.

It’s more complicated than that.

SDNY has a rule: To enter into a cooperation agreement with them, one has to plead to all crimes. Geoffrey Berman described it this way in his memoir, explaining why SDNY didn’t give Michael Cohen a cooperation deal.

Cooperation in the Southern District means full cooperation—taking responsibility for all criminal actions, not just a select few. If any one area of a defendant’s life is off limits, we do not recommend leniency in sentencing. (Some districts are more transactional: you give a little, you get a little.)

When defendants agree to this and become cooperating witnesses against others, their testimony is more credible. Our prosecutors can tell juries that if the cooperator is caught lying, the agreement can be revoked and he or she will be prosecuted not only for the crimes covered at trial but for a host of others that the cooperator copped to as part of his agreement.

The SDNY rules also serve as a powerful investigative tool, because when you acquire absolute cooperation, your avenues for making other cases expand dramatically. We often learn of additional criminal activity—whole new threads of wrongdoing that in some instances we knew nothing about.

That’s one reason why SDNY didn’t give Lev a cooperation agreement. As SDNY explained in their sentencing memo for him, Lev’s attorney, Joseph Bondy, proffered information in the months after his arrest in October 2019. But Bondy provided details that were contradicted by the evidence (at the time, Lev may not have understood that FBI had obtained iCloud content he deleted). SDNY then did a reverse proffer on November 6, 2019 (two days after obtaining a warrant for Rudy’s comms), meaning they told Lev and Bondy all the evidence they had against Lev. After that, Bondy replied saying that Parnas was unwilling to plead guilty to the campaign finance crimes charged against him.

After that meeting, Parnas’s counsel wrote the Government to report that he could not “accept responsibility for criminal activity for which he is not guilty,” which based on discussions with counsel, the Government understood to be a reference to, among other things, the campaign finance and false statements offenses of which Parnas now stands convicted.

That’s consistent with Parnas’ own memoir, in which he still attributes the campaign finance stuff as a lack of awareness of the law and of the Russian source of the money he was throwing around.

According to SDNY, that unwillingness to fully accept responsibility continued when Parnas did sit for a proffer on March 5, 2020.

In addition, SDNY was unable to corroborate some of the things Parnas claimed in that March proffer.

[T]he Government was ultimately unable to corroborate significant portions of what Parnas said.

This was during a period when Barr was aggressively trying to limit SDNY’s investigation, so it may not have been Lev’s fault they couldn’t corroborate this stuff.

Finally, DOJ generally has a rule: Cooperating witnesses who chat to the press are usually useless as witnesses. This makes sense for a lot of reasons, not least that it alerts criminal targets of what prosecutors do and don’t know. SDNY told Parnas this early on, in November 2019, and his early 2020 interviews would have only exacerbated this.

At the close of that [November 6, 2019] meeting, the Government informed Parnas that public spectacles, leaks, and social media postings could undermine his credibility and diminish his value as a potential cooperating witness.

Given Barr’s fuckery, I don’t know if Parnas could have pulled off cooperation in any case. But even without it, things he himself did made it virtually impossible he could get a deal from SDNY.

And honestly, it wouldn’t have served his purposes. He needed to come out publicly against Trump, but that was inconsistent with the ability to cooperate criminally. The impeachment was his one shot for accountability, and Congress blew that. (As I was writing this, I considered that, had Democrats made Lev’s testimony more central to impeachment, Republicans might have forced Hunter Biden to testify, as they were threatening at the time; I have long wondered whether Trump’s impeachment defense team had a copy of the laptop.)

Bill Barr insulated the impeachment review from the Hunter Biden caper

The film focuses closely on how, after Trump’s Perfect Phone Call with Volodymyr Zelenskyy was released, onetime Trump defense attorney John Dowd, speaking as a lawyer for Lev and Igor, first refused to cooperate with Congress. Their arrest, days later, put Parnas and Fruman at the mercy of lawyers arranged by Trump, until Parnas hired Bondy.

It is true that their arrest discredited them as witnesses.

But it wasn’t just their arrest that limited the investigation from impacting impeachment. DOJ also did some tactical things to prevent the Trump impeachment from merging with Lev’s prosecution.

When Lev and Igor were arrested, DOJ told the press that Barr had been briefed on the investigation from early in his tenure as Attorney General.

That seems inconsistent with a claim that Barr made in his memoir (which IMO is largely CYA about these matters). Barr claimed he had no awareness of Rudy’s efforts to investigate Biden, and only learned of it from news reports.

By the spring of 2019, I had noticed news stories stating that Giuliani was pushing the Ukrainians to investigate Biden’s role in Shokin’s dismissal. But other than what I glimpsed in the media, I had no knowledge of the former mayor’s activities. During the spring, I expressed my concern about Giuliani with the President. As I was leaving an Oval Office meeting on another topic, I paused briefly to raise the matter.

“Mr. President,” I said, “I don’t think you are being well served by Giuliani at this point. Mueller is over, and Russiagate is dying. Why is Giuliani thrashing about in Ukraine? It is going to blow up—”

“Yeah,” the President said, cutting me off. “I told him not to go over there. It was a trap.” President Trump gave the impression Giuliani had a degree of independence and was going to pull back. I did not press the point.

Even imagining that SDNY kept these details from Barr, by August 14, 2019, it is highly likely that the National Security Division had notice of the focus on Rudy. That’s when possible Foreign Agent charges (and a reference to Marie Yovanovitch) got added to the warrants targeting Lev and Igor.

NSD head John Demers was one of the first people at DOJ to review the Perfect Phone Call. He did so, on August 15, 2019, after SDNY had turned to FARA crimes normally overseen by NSD.

That may explain why DOJ did something that served to insulate the Public Integrity (PIN) review of the Perfect Phone call from the ongoing investigation of Rudy’s efforts with Lev and Igor: Demers and Criminal Division head Brian Benzkowski only had PIN review the transcript of the call, not the full whistleblower complaint. Had investigators done what investigators have been ordered to do since 9/11 with the full complaint, they would have searched on all the references in the complaint, including those in the OCCRP report on Lev and Igor referenced repeatedly in it. That, in turn, should have identified the SDNY investigation, which would have immediately implicated Trump in the investigation.

Effectively, by focusing solely on the transcript, someone at DOJ deliberately blinded that PIN review to an ongoing FARA investigation, thereby eliciting a clean bill of health for Trump.

There’s a lot more that Barr did as the scandal unfolded, as I’ve laid out here and here. But the first thing someone at DOJ did was to gin up a prosecution declination before anyone could tie Trump’s coercion of Zelenskyy with the existing investigation into Lev and Igor.

Bill Barr played a shell game to protect Rudy’s “collusion” with a known Russian spy

Barr was nowhere near done.

There seems have been an ongoing cat-and-mouse between SDNY and Barr.

When SDNY got the indictment, according to Berman, they got approval from two PIN prosecutors in the middle of the night, not NSD, which may be why only the campaign finance crimes were in the indictment and only the campaign finance crimes were on the warrants for the searches done the day of arrest (this would have served to hide that part of the investigation from Lev and Igor, too). That’s the biggest piece of evidence that SDNY did not arrest Lev and Igor as a favor for Barr, as he attempted to kill impeachment, but the reverse.

In October, SDNY got warrants to search everything for the FARA crimes. On November 4, 2019, SDNY got warrants targeting Rudy for FARA crimes.

On December 5, 2019, Rudy met, with Barr’s foreknowledge, known Russian asset Andrii Derkach.

And on December 10, 2019, SDNY got further warrants in that investigation.

DOJ had just let Rudy meet with a Russian spy while SDNY had an ongoing investigation into whether Rudy was working with foreign spies. It was insane to let that happen in any case. All the more so given the ongoing investigation from the Sovereign District of New York, as SDNYers like to call themselves.

So Barr had to gut SDNY’s sovereignty.

Barr did several things:

  • Assigned any investigation of Derkach, with whom Rudy had just met, to EDNY, not SDNY where it would be a natural follow-on.
  • Made EDNY US Attorney Richard Donoghue the gate-keeper for all Ukraine investigations, requiring SDNY to get permission from him before taking any investigative steps against Rudy or Lev.
  • Asked Pittsburgh US Attorney Scott Brady to play a role. Publicly, Barr and Brady claimed this was a vetting process of tips from Ukraine. But Brady’s congressional testimony revealed he did almost no functional vetting; he ignored evidence from the impeachment and some key public articles. Plus, he did more than vetting. Brady also checked in on investigations into all the oligarchs from whom Rudy had solicited dirt on Hunter Biden, with uncertain outcome; he tried to tell SDNY he knew better than they did about their investigation; he demanded details about the investigation into Hunter Biden. Most importantly, some yet unidentified person told Brady to seek out FBI informant Alexander Smirnov, who had made a reference to Hunter Biden in an informant report about Mykola Zlochevsky years earlier. By May 2020, Smirnov was allegedly attempting to frame Joe Biden with allegations of bribery, and Brady made that part of his work. Once again with Smirnov’s allegations, Brady did little functional vetting, falsely claiming that his travel schedule confirmed the claim, rather than debunked it.
  • Barred the FBI Agents working with SDNY from receiving certain information, including Rudy’s interview with Scott Brady.
  • Ordered David Weiss, whom DOJ had put in charge of an investigation into DC and CA resident Hunter Biden, to consult with Brady on his tips.

These efforts halted what should have been obvious next steps in the SDNY investigation, ensured Rudy could share information obtained from a known Russian spy with no legal risk, and ordered that some of Rudy’s information be used in an investigation of Joe Biden’s kid. DOJ was literally protecting a Russian influence operation, because it served the interest of the President.

The biggest reason why Rudy didn’t go to prison for this is that Barr protected this entire process, including the solicitation of dirt from a known Russian spy.

DOJ approved steps against Rudy on Lisa Monaco’s first day on the job

While Trump remained in office, SDNY tried several more times to get warrants targeting Rudy, but were denied.

On Lisa Monaco’s very first day on the job, April 21, 2021, SDNY finally obtained warrants targeting Rudy. Merrick Garland’s DOJ did precisely what everyone is wailing for: He immediately permitted prosecutors to advance this long-thwarted investigation.

Based on what we can see, there were at least two limitations on the investigation, however. First, the warrants targeting Rudy did not include the Trump lawyer’s January 29, 2020 interview with Scott Brady. That suggests Rudy’s effort to share dirt from Russian spies was still protected as cooperation rather than confession, even after Garland took over (indeed, that’s what Rudy pointed to to argue he couldn’t be searched at all, his “cooperation” with Barr). Just as importantly, while some of the 2019 warrant affidavits mentioned Donald Trump’s call to Volodymyr Zelenskyy, the 2021 warrants did not. I would be unsurprised if Barr got OLC to write a memo putting all that off limits before they left office.

Aside from that, DOJ’s approach to Rudy Giuliani remained remarkably aggressive, contrary to what virtually every news outlet will tell you. Importantly, SDNY did something no one else has reported: They installed a Special Master and got permission to review Rudy’s content — all Rudy’s post-2017 content — for privilege. Among other things, that freed up content, including at least one document the January 6 Committee did not get, for any other investigations.

Nevertheless, the delay (or possibly corrupt Rudy dead-enders in NY) appears to have killed any chance of pursuing Rudy for his role in soliciting dirt from Russian spies and others to attack Hunter Biden. On November 14, 2022, SDNY informed the court that the grand jury had concluded without filing charges (though Rudy’s lawyer and Hunter Biden laptop co-conspirator, Robert Costello, has never substantiated a declination letter). In a July 25, 2023 declaration in the Ruby Freeman lawsuit, Costello revealed one potential explanation: many of the devices seized from Rudy obtained in April 2021 were corrupted. Costello blamed the FBI’s contractor for making the phones unusable.

Not all the devices were corrupted, however. As noted, the privilege log from Freeman’s case shows a great deal of files pertaining to January 6 were successfully extracted, including a few identifiable files not obtained by the January 6 Committee.

DOJ also seized a phone from Victoria Toensing. But the value of that may have been limited by attorney-client privileged tied to Firtash, the same privilege which has, at times, led Lev (because he was a translator in that relationship) to limit his own comments about Firtash in all this. To fully unpack what happened, you’d need to know what promises Toensing made to Firtash and what Barr knew about them.

Attorneys General have vast discretion

In a just world, Bill Barr could be held accountable for the corruption he enabled. But that’s virtually impossible under the structures of impunity our system accords prosecutors and Attorneys General.

I’m neck-deep in a post on the three IG investigations pertaining to Bill Barr’s corrupt conduct.

All of them conclude that however nuts Bill Barr’s conduct was, the expansive authority of the Attorney General means that his actions, including his intervention into the sentencing for Trump’s rat-fucker and his decision to share details of minor infraction by someone whom Barr knew would never be charged for political gain, were within the discretion of the Attorney General.

DOJ IG has spent over four years investigating Barr’s corruption, and thus far, they have always concluded that as Attorney General, Barr’s discretion was so vast that he can break all of DOJ’s rules prohibiting its politicization.

There’s still at least one IG Report including Barr’s conduct outstanding (almost certainly, the ongoing investigation into DOJ getting the communications records of journalists for whom people like Jim Comey might have been a source). But of all the fuckery I know Barr to have committed, I can envision only a few details of his conduct might even remotely end up the focus of criminal investigation.

Even the most corrupt insinuations about Rudy’s efforts, in which Rudy allegedly offered Ihor Kolomoyskyi, Dmitry Firtash, and Mykola Zlochevsky relief from criminal investigations for dirt on Hunter Biden, would be included in this.

Lev explains why in his book: This was deliberately framed as the exact equivalent of Andrew Weissmann’s efforts to flip Firtash for information on Paul Manafort.

Andrew Weissman, who was lead prosecutor for the investigation of Russian collusion in the 2016 Election, had gotten there first. He offered a deal in which Firtash could avoid prison if he testified about the relationship between Trump and Russian President Vladimir Putin. The inclusion of Putin meant that Firtash would never take the deal. Nobody over there wants to make Putin angry.

Nobody else knew about the deal he was offered. Giuliani and Solomon wanted Firtash’s legal team to make it public. His Viennese lawyers were against it, so Firtash was reluctant. Soon, in a heated meeting in Vienna, an argument between some of Firtash’s legal team led to Victoria Toensing, who was on our team, confronting Dan Webb about it months later. Webb — who was connected with Weissmann, William Barr and other heavy hitters — admitted to the deal.

Still, we convinced Firtash that we — who were representing Trump’s interests — could help him with his extradition far more effectively than Weissman. The real goal for us was to get Firtash to use his contacts to pressure President Zelenskyy to announce an investigation of the Bidens. Our pitch was successful, Firtash agreed to hire Giuliani for $1 million. And $200,000 for me to be official translator and to be under the attorney-client privilege umbrella.

Prosecutors trade leniency for information on other crooks all the time. Here, however, it was the Attorney General, who had never served as a prosecutor himself, who would be making those deals, offering leniency to foreign oligarchs if they could offer dirt on Donald Trump’s likely opponent.

It’s unclear whether, and if so what, deals were made: an investigation into Zlochevsky was reportedly shut down in December 2019; investigations into Kolomoyskyi ratcheted up in 2020; and the prior investigation into Dmitry Firtash remains deadlocked on his extradition, as it has been for years.

But these kinds of deals would be consistent with an elaborate effort Barr makes in his book to spin Trump’s pursuit of dirt on the Bidens as a legitimate law enforcement pursuit, the logic of Trump’s impeachment defense taken to its logical conclusion.

It’s all transparent bullshit. But it would also be virtually impossible to debunk at trial, even if you could get beyond the vast discretion of an Attorney General.

David Weiss’ appointment threatens to limit further fallout

There’s one thing I do fault Merrick Garland for: For not removing David Weiss from the investigation into Alexander Smirnov.

By all appearances, Weiss asked to be appointed Special Counsel only after he renewed his focus on Smirnov in July 2023, after receiving, but blowing off, the allegation days before the 2020 election, on October 23, 2020.

Investigating Smirnov’s allegation that Joe Biden accepted a bribe from Burisma was the first thing that focused the investigation onto Biden, after the original prosecutor, Lesley Wolf had successfully avoided that focus for years. It was the first thing that created a real conflict with working for Joe Biden.

And Weiss bases his authority to prosecute Smirnov for lying when he started chasing that hoax on his Special Counsel authority. He could only do so if he were legitimately chasing that hoax as witness testimony.

Here’s the problem with that: David Weiss is a witness in what should be a broader investigation into how a side channel set up by Bill Barr ended up discovering an informant who once met Mykola Zlochevsky and then not vetting the false claims he made. At the very least, there should be an investigation into who — everyone swears it was not Rudy, and Smirnov has at least three other links to people close to Trump — alerted Brady that Smirnov might offer up such claims.

Bill Barr’s deputy ordered David Weiss to accept briefing on this hoax. He ordered him to let Scott Brady snoop on Weiss’ investigation of Joe Biden’s kid. That makes Weiss a witness. Once Smirnov became a subject rather than a witness, that created a conflict that should disqualify Weiss from overseeing an investigation into the former informant and the circumstances that allowed him to make allegedly false allegations against Joe Biden.

Merrick Garland should (at a minimum, though I could argue more broadly) move the primary team prosecuting Smirnov under supervision without such conflicts. A system set up by Bill Barr criminally framed Joe Biden, and a guy who worked with Bill Barr on that case continues to supervise the aftermath.

The complicity of the press

There’s one more party that demands accountability: The press.

Much of what I wrote in this post is public. It requires diligent reading, but not great access to Donald Trump or anyone else.

Not only has this entire story not been reported by mainstream outlets. Not only did NYT affirmatively obscure Rudy’s role in all this (and therefore Trump’s) in their one attempt to cover it. But one after another journalist — especially at NYT — writes stories that disappear the Hunter Biden pursuit from all of Trump’s abuse of DOJ. Indeed, some outlets, including Rachel Maddow’s parent company, seem to treat Hunter Biden as a gossip rag to drive clicks, rather than the locus of unprecedented corruption. Rather than chasing this story, or even asking Bill Barr direct questions about it, one after another TV star invites him on as if he’s a critic of Trump’s corruption, rather than a key player in it. WaPo’s Will Lewis pointed to a badly conflicted Hunter Biden piece as his antidote against accusations of lefty bias.

Want to know how Rudy Giuliani was allowed to solicit dirt from Russian spies to help Trump get elected, without accountability? Want to know why Barr is considered a critic of Trump rather than his most corrupt enabler? Ask the journalists who lost interest in that story as soon as Rudy released a laptop full of Hunter Biden’s dick pics.

From Russia with Lev begins to reverse all that. But as infuriating as it is, it barely scratches the surface.

Timeline

Below, every bullet is a known warrant. The ones not linked were described in a passage that failed to be fully redacted in a Lev Parnas filing. This document compares the Foreign Agent focus of the three warrants bolded below.

  • January 18, 2019, 19 MJ 1729: Yahoo and Google content

May 15, 2019: Marie Yovanovitch firing public

  • May 16, 2019, 19 MJ 4784: iCloud content
  • August 14, 2019, 19 MJ 7593: Yahoo and Google content since January, with expanded focus
  • August 14, 2019, 19 MJ 7594: Unknown warrant
  • August 14, 2019, 19 MJ 7595: Existing Yahoo and Google content, with expanded focus

September 25, 2019: Disclosure of Perfect Phone call

October 9, 2019: Lev Parnas and Igor Fruman arrested

  • October 17, 2019, 19 MJ 7595: Actual authorization of the warrant approved in August
  • October 21, 2019, 19 MJ 9829: iCloud content since May
  • October 21, 2019, 19 MJ 9830: Unknown warrant
  • October 21, 2019, 19 MJ 9831: Devices from Dulles
  • October 21, 2019, 19 MJ 9832: Existing iCloud content for expanded focus
  • November 4, 2019: Warrant for Rudy’s iCloud
  • November 4, 2019: Warrant for Rudy’s email
  • November 4, 2019: Warrant for Victoria Toensing’s iCloud
  • November 6, 2019: Warrant for Yuriy Lutsenko’s email

December 5, 2019: Rudy meets with known Russian asset, Andrii Derkach

  • December 10, 2019, 19 MJ 11500: Stuff seized from residences for foreign agent focus
  • December 10, 2019, 19 MJ 11501: Instagram
  • December 10, 2019, Warrant for Roman Nasirov’s email
  • December 13, 2019, Warrant for Victoria Toensing’s email

December 14, 2019: Barr aide texts him: “Laptop on way to you”

January 3, 2020: Barr establishes dedicated channel to ingest Rudy’s dirt

January 17, 2020: Jeffrey Rosen makes Richard Donoghue a gatekeeper for all Ukraine-related investigations

  • February 28, 2020: iPhone of Alexander Levin
  • March 3, 2020: iPad of Alexander Levin
  • March 20, 2020, 20 MJ 3074: Fruman iCloud content obtained with October 21, 2019 warrant to cover earlier periods

June 20, 2020: Barr fires Geoffrey Berman

November 2020: SDNY denied authority to seek devices of Rudy Giuliani

January 2021: SDNY denied authority to seek devices of Rudy Giuliani

  • April 13, 2021: Cell site data for Rudy and Toensing

April 21, 2021: Lisa Monaco sworn in

  • April 21, 2021, 21 MJ 4335: Rudy’s office, residence, and devices
  • April 21, 2021: Victoria Toensing iPhone
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Permission Structures and Polling Puzzles

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As of today, Trump has less than 7% of his campaign left (47 of 721 days).

As of today, Harris has almost 44% of her campaign left (47 of 107 days).

Keep that in mind as you read this column from NYT’s Nate Cohn, in which he tries to puzzle out why Kamala Harris is doing less well in what he deems high quality national polls than she’s doing in Pennsylvania.

Never mind that his pick of polls has some few suspect polls in there. Effectively what Cohn convinces himself he’s seeing is that the Electoral College, which normally favors Democrats, may this year favor Trump.

Now let’s consider our puzzle: a clear lead for Ms. Harris in Pennsylvania, but a tie nationwide? This is unexpected. Four years ago, President Biden won the national vote by 4.5 percentage points, but won Pennsylvania by just 1.2 points. Similarly, our poll averages have shown Ms. Harris doing better nationwide than in Pennsylvania. This poll is nearly the opposite.

Usually, I’d say that this is probably just statistical noise — the inevitable variation in poll results inherent to random sampling. And it might well be, as we shall see. But I think it’s hard to assume that this is simply noise, for two reasons:

  • It’s what we’ve shown before. It’s easy enough to dismiss any single poll result as a statistical fluke. But we’ve now found similar results in our last two polls of the nation and Pennsylvania.
  • This is becoming a trend among high-quality pollsters. Yes, our poll average shows Ms. Harris doing better nationally than in Pennsylvania, but if you focus only on higher-quality polls (which we call “select pollsters” in our table), the story is a bit different. Over the last month, a lot of these polls show Ms. Harris doing relatively poorly nationwide, but doing well in the Northern battleground states.

Note that Nate says NYT’s own polls aren’t moving much (while admitting the first days after the debate, responses in PA were more favorable to Harris). But Harris’ lead in MI and PA, across all polls, is inching ever so slowly higher, with some polls beginning to show leads outside the margin of error.

My suspicion is we’re still seeing two effects: that of RFK endorsing Trump, which may have helped Trump by a point (indeed, some polls aren’t including him in states, like WI and MI, where he remains on the ballot) and the debate and Taylor Swift endorsement, which may have helped Harris by up to three.

So far.

But this is why I keep coming back to the 7% versus 44% that each candidate has left in their campaign. Harris is doing in an incredibly compressed timeline, at least by US standards, what campaigns spend years doing. As a result, some baseline actions, such as recruiting volunteers, happened later than they otherwise might have. So there could be — though by no means is guaranteed — a late-election effect from them, as those efforts bear fruit.

Still, as Harris tries to build on that foundation, Trump’s unconventional choices — such as to fire the RNC personnel doing field work and instead to let an Elon Musk PAC do that work — has risks, as evidenced by the decision to fire and replace the canvasing contractor in NV and AZ with 50 days left to go.

That leaves open the possibility that we’ll see gradual movement in the weeks ahead, even ignoring a big blunder by one of the campaigns, or a Black Swan event of the type that would be unsurprising this year.

Brittany Mahomes

To understand what kind of delayed effect recent events might bring about, start with Brittany Mahomes, the spouse of KC Chiefs QB Patrick Mahomes, who has become close to Taylor Swift as both root for their partners at football games. According to the Daily Mail, Trump’s attack on Swift led Ms. Mahomes to rethink her prior support of Trump.

Brittany Mahomes is ‘deeply bothered’ by Donald Trump’s very public attack on her close friend Taylor Swift, according to sources who claim the Kansas City Chiefs WAG is questioning her support for the former president.

Brittany, who has been married to Chiefs quarterback Patrick Mahomes since 2022, sparked a liberal meltdown last month when she liked a post about Trump, 78, on social media.

Weeks later, Taylor, 34, publicly endorsed Kamala Harris’ bid for president – an action that drove a reported 338,000 visits to the federal voter registration website after she shared a link on Instagram.

Trump hit back in predictably blistering style on his Truth Social platform, claiming ‘I HATE TAYLOR SWIFT’ – prompting Brittany, 29, to ‘question’ if she will continue to endorse his campaign.

‘She is questioning her support for Donald Trump after he lashed out at Taylor, saying he hates her,’ a source exclusively revealed to DailyMail.com.

Swift is perhaps the most trusted American, in any sphere. Because of that, polarization will work in her favor, and through her, Harris’, in the same way it tends to work in Trump’s favor when he spins prosecution of him as an attack on him. If people do things to Swift, her supporters will side with her all the more strongly, and in this matter, that may produce movement to Harris.

Mahomes’ vote — presumably cast in MO, where the couple lives — is not going to swing any races. But what is publicly reported to be going on with her may go on with millions of the diehard Swifties who would normally be soft Trump supporters. But that process takes time. First they reconsider their prior beliefs, then they learn why Swift supports Harris, then they get used to the idea of voting for a Democrat.

It’s a process, one that has as many as 47 days left to work.

Springfield’s Republicans and Reagan’s Dead-Enders

Something similar may be happening among more traditional Republicans.

Politico reported on how Republicans stuck with the chaos Trump has created in heavily Republican Springfield are rethinking their Republican support.

“Any political leader that takes the national stage and has the national spotlight needs to understand the gravity of the words that they have for cities like ours, and what they say impacts our city,” Rue, who said he was tired and angry, told POLITICO. “And we’ve had bomb threats the last two days. We’ve had personal threats the last two days, and it’s increasing, because the national stage is swirling this up. Springfield, Ohio, is caught in a political vortex, and it is a bit out of control. We are a wonderful city — a beautiful town. And for what it’s worth, your pets are safe in Springfield, Ohio.”

Asked whether he is going to vote for Trump, the 54-year-old mayor said, “I’m just probably not going to answer that question.” He said he is deeply “frustrated” with Trump’s remarks and how Springfield has become collateral damage.

[snip]

Republican Clark County Commission President Melanie Flax-Wilt, who said she backed Trump in 2016 and 2020 but is now undecided, largely refused to talk about national politics. But she said she was frustrated.

“I’m of the belief that it’s our local community that is going to be here dealing with this after all of the national news is gone and everybody’s done using Springfield, Ohio, as a poster child for immigration reform. We’re the ones who are going to be stuck figuring out what to do with these challenges that are facing us,” said Flax-Wilt.

Sasha Rittenhouse, another Republican member of the county commission, said, “We’ve seen a lot of, I don’t want to say crazy, but unfounded things. It’s a matter of trying to go back and see if there’s any validity to any of it.”

She added, “And thus far, we have not been able to track anything down that definitively shows that any of these things are happening.”

Of her plans to vote this November, Rittenhouse said: “I have not decided what I’m doing. I’ve been a Republican my entire life, and I will leave it at that.”

Any such reconsideration would happen amidst a larger permission structure created by the number of Republicans who’ve publicly supported Harris, including a new batch of national security professionals (some with ties to Dick Cheney, who of course endorsed Harris a week ago — rolled out yesterday, and a group of former Reagan aides rolled out days earlier.

I don’t know whether that will or is working; clearly, Harris finds the support valuable, so the campaign may be seeing positive effects from the GOP support.

But the point is to simply create a permission structure for those wavering in their support for Trump to consider Harris, to rebrand it as patriotism.

Again, if it works, it’ll take time. It’ll be a process.

Iowa draws closer

One of the most interesting polling developments in recent weeks is not in a swing state; it’s in Iowa. The state’s best pollster, Ann Selzer — whom some argue is the best state pollster in the country — released a poll showing Harris within 4 of Trump in the state.

Ann Selzer’s gold standard poll is out, and suggests a remade presidential race in Iowa.

The top line numbers from Selzer & Co’s latest poll for the Des Moines Register and Mediacom indicate former President Donald Trump has 47 percent support and Vice President Kamala Harris 43 percent among likely Iowa voters. This poll started contacting respondents on September 8 (before the debate) and concluded on September 11, the day after the debate. At the end of this piece is a summary of post-debate national polling, which has found a gain for Harris of about 1 percent.

When you compare the new survey to Selzer’s numbers from June (Trump 50 percent, President Joe Biden 32 percent in Iowa), you will find a 14 point shift in margin. But purely focusing on the margin may be a mistake.

Trump’s level of support has varied little since February, when Selzer found him ahead of Biden by 48 percent to 33 percent in Iowa. The change is in the Democratic number. Harris has consolidated the Democratic base, and the 43 percent she receives in this survey is close to the 44.9 percent vote share for Biden in the 2020 election.

As Selzer describes it, this poll reflects new participation among groups energized since Harris got in the race.

Now, 81% of all Iowans say they will definitely vote in the general election, up from 76% in June. However, some of the demographic groups more likely to favor Harris are showing increased participation.

Women show an 8-percentage-point uptick in likely voting since June, Iowans younger than 45 show a 10-point increase, city dwellers show a 6-point bounce, and those with a college degree are up 9 points.

Iowa is not going to go for Harris; if it does, this would not be a close race. But because of Selzer’s credibility, this suggests a trend in the Midwest that likely confirms positive polling for Harris in neighboring WI (and Nebraska’s Omaha district).

But by drawing close in Iowa, Harris puts two of Iowa’s congressional districts in play.

To understand the importance of this new poll, and what it means if it is on target, let’s look at Iowa’s U.S. House seats. As noted above, this poll find Harris trailing Trump by 4 percent statewide. The table below applies that shift to both the 2020 numbers and the results of the 2022 Congressional races.

If Selzer is accurate, Harris is ahead in two of Iowa’s four Congressional districts (the first and the third), and would only narrowly lose the second district. Based on those numbers the Democrats would likely pick up at least one House seat in Iowa, and three races would be competitive.

Even before this poll, Democrats had started dumping (more) money in the two Iowa CDs, so their internals must be showing similar movement.

Pennsylvania bellwethers

There have been a slew of polls from PA overnight. But the result I find most interesting is this one, from earlier in the week: a Suffolk poll of PA (showing a 49-46 Harris lead) and two bellwether counties, Northampton (Bethleham) and Erie (around the city), showing 4-5 point leads for Harris in both.

The survey results showed that the vice president also led the former president in Northampton and Erie counties – two counties that have picked the winner of the last two presidential elections.

Harris had a five-point edge (50-45%) over Trump in Northampton County, located in eastern Pennsylvania and is the home of the cities of Bethlehem and Easton. President Joe Biden carried the county, 50-49%, in 2020 after Trump topped Hillary Clinton, 50-46%, in 2016.

In the northwest corner of the Commonwealth, Harris carries a four-point advantage over Trump, 48-44% – a larger margin than either winner produced in the last two elections. Biden squeezed out a 1-point edge (50-49%) in winning in 2020, while Trump had a two-point triumph in Erie, 49-47%, four years earlier.

Experienced politicos tend to focus on bellwether precincts or counties to read a state and Suffolk just started doing this in the 2022 race (their results predicted John Fetterman’s victory, but weren’t accurate for the county). I’m interested in this approach, though, because it’s one attempt to address all the difficulties with polling.

I’m also interested because of how NYT, among other outlets, has covered the race in Erie.

In July, when Trump led Joe Biden’s native state by 3, NYT did a story on how little credit Biden has gotten for economic investment in Rust Belt areas, focusing on Erie.

On a blighted industrial corridor in a struggling section of Erie, Pa., a long-abandoned iron factory has been humming with activity for the first time in decades. Construction crews have been removing barrels of toxic waste, knocking down crumbling walls and salvaging rusted tin roofing as they prepare to convert the cavernous space into an events venue, advanced manufacturing hub and brewery.

The estimated $25 million project is the most ambitious undertaking the Erie County Redevelopment Authority has ever attempted. It was both kick-started and remains heavily funded by various pots of money coming from Biden administration programs.

Yet there is no obvious sign of President Biden’s influence on the project. Instead, the politician who has taken credit for the Ironworks Square development effort most clearly is Representative Mike Kelly, a Pennsylvania Republican who voted against the 2021 bipartisan infrastructure law that is helping to fund the renovation.

It is one example of a larger problem Mr. Biden faces in Pennsylvania, a swing state that could decide the winner of the 2024 election. In places like Erie, a long-struggling manufacturing hub bordering the Great Lake that is often an election bellwether, Mr. Biden is struggling to capitalize on his own economic policies even when they are providing real and visible benefits.

In August, after Harris had remade the race, WaPo did a story about Erie’s longterm economic plight, noting that its plight would affect the vote there. When it described a new factory funded by the Inflation Reduction Act as a green shoot that might change things, it didn’t describe that Kamala Harris cast the deciding vote for the law that funded it.

The irony — or the puzzle — is that this evident stress coexists with hints of green shoots in the local economy.

A long-planned plastics recycling facility is moving forward, thanks to a new federal loan guarantee. The Japanese corporation Kyocera broke ground this spring on a new manufacturing facility. And popular amenities, including an indoor golf simulator and a rock climbing gym, have opened downtown.

A pre-debate September story in NYT focused on Tim Walz’ appearance in Erie to highlight the campaign’s efforts — more apparent in Harris’ stop in Wilkes-Barre, a story about which NYT focused on skeptics about Harris —  to shave Trump’s margins in rural areas.

“Look, it would be easier if we didn’t have to do this. It would be easier if these guys wouldn’t undermine our system, if they wouldn’t lie about elections, if they wouldn’t put women’s health at risk. But they are, so it’s a privilege for us to do the fight,” he said in Erie, Pa., where he stumped from a stage at the edge of Presque Isle Bay before hundreds of cheering supporters waving “Coach” and “Kamala” signs.

The appearance was one of several events that Mr. Walz used to blitz the local media airwaves and fire up Democratic volunteers with the Midwestern dad charm that his party is banking on to help draw white working-class voters. Mr. Walz, and his daughter, Hope, hit several cities in counties that went for Mr. Trump in 2016 — stung by fading American manufacturing and a difficult economy.

[snip]

His trip also underscored the challenges for his ticket as Democrats aim to improve their margins in rural and red-leaning areas in November. The specter of the former president loomed at nearly every stop, and though Mr. Walz arrived ready to engage with undecided voters, some places yielded few opportunities to do so. Mr. Walz also frustrated a handful of reporters as he refused to answer shouted questions.

It complained, twice, that Walz didn’t take reporters’ bait to answer questions only interesting to a pack of beltway journalists.

That outcome by Suffolk, if accurate, reflects a lot of work that Harris and Walz have put in, work that mainstream outlets seem ready to dismiss (while griping that candidates aren’t focusing on coastal journalists while visiting those areas).

There’s a story in Erie. It is a recognizable bellwether area. But rather than look there to see if that’s what explains a possible split between the national polls and PA, NYT’s pollster ignores the possibility that Harris is doing better in swing states than nationally because efforts she has made in those swing states, efforts that don’t feed the media’s narrative have made a difference.

What the Iowa poll may show is a national reconsideration that has happened as Kamala took over the ticket, particularly as women and young voters became more enthused. What the Suffolk PA poll may show is that more focused efforts in swing states are, very gradually, having some results.

That’s why I keep coming back to timing. Trump has 7% of his campaign left, and he’s spending much of his time outside of swing states, attempting to create stunts to shift the media narrative. Harris has 44% of her campaign left, and she’s spending it, partly, out of the limelight, working relentlessly to win over small groups of voters in the swing states that will decide the election.

We should expect a well-run campaign that has focused on swing states to show some results in those swing states, particularly in a race against a guy, Trump, who seems to have a ceiling for his support. Maybe that’s what we’re seeing.

If the election were held today, Harris would have a very good shot to win, but only narrowly. A narrow win might not be enough to stave off whatever fuckery Trump has planned.

But the election won’t be held today. She’s still got 44% of her campaign left to get this hard work to pay off.

Update: Fixed spelling of bellwether.

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Useful Idiots: DOJ Moves from Name-and-Shame to Name-and-Disrupt

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In the Election Task Force presser at which DOJ also rolled out two operations against Russian foreign malign influence last week, Merrick Garland described that the investigation into RT’s efforts to hide its efforts in the US was ongoing. “The charges unsealed this morning do not represent the end of the investigation. It remains active and ongoing.”

Indeed, last week, Tim Pool (believed to be Commentator-2 in the RT indictment) revealed that he would assist in the investigation (presumably meaning he’ll sit for the interview the FBI requested).

The language Pool used — the emphasis on a voluntary interview, one echoed by Benny Johnson’s more equivocal statement about his response to a similar FBI invitation — suggests DOJ is treating Pool, and so presumably most of the other commentators described in the indictment, as media under DOJ’s recently updated media guidelines.

Not so Lauren Chen herself — or at least, not Tenet Media. After all, the indictment describes several Discord servers — a general one, one focused on “funders,” another on “producers,” and another for one of the commentators — that all seem to be part of Tenet’s overarching Discord server run by Chen. To get legal process on that, as they clearly did, prosecutors would have had to convince DOJ’s National Security Division head, Matt Olsen, that Tenet or Chen either aren’t media or fit into one of the designated exceptions to the media rule.

Prosecutors might do that through Chen’s (or her spouse, Liam Donovan’s) past work with RT, after such time as it had registered as an agent of Russia in 2017. Or, if DOJ could prove that Chen knew the Russians she was working for were just an extension of her pre-existing RT contract, that might also satisfy the exception for “a foreign power or agent of a foreign power.” But even Chen’s acceptance of US-bound payments via wire from “Turkish Shell Entity-1” described as, “BUYING GOODS-INV.013-IPHONE 15 PRO MAX 512GB” would likely reach an aid-and-abet standard for RT’s alleged money laundering.

According to the indictment, the many cut-outs via which she (and by association, the podcasters) were being paid, were visible to her. None were in France, where the fictional funder of the project purportedly lived. She was witting to the money laundering alleged in the indictment, which probably qualifies her for an exception to the media guidelines. Charging that money laundering may be one step in justifying a broader investigation into Chen, including one that extends into her other roles in the far right network at Glenn Beck’s show and on Turning Point USA.

This post, which I started last week, was going to be a post laying out how all of last week’s activities seem to be an attempt to move beyond DOJ’s prior approach of name-and-shaming foreign hackers, to a name-and-disrupt approach. Lawfare did such a post earlier this week, and Alex Finley did one focused on RT and Doppelganger.

But I’m going to post the part of that larger post focused on RT now, because State just rolled out the next step of this name-and-disrupt operation: sharing intelligence showing how RT has become a front for Russia’s broader intelligence operations.

The State Department revealed declassified US intelligence findings that suggest RT is fully integrated into Russia’s intelligence operations around the world and announced it is launching a diplomatic campaign to provide countries with information about the risks associated with RT activities.

“Thanks to new information, much of which originates from RT employees, we know that RT possessed cyber capabilities and engaged in covert information and influence operations and military procurement,” Secretary of State Antony Blinken said Friday.

A key finding from the new US intelligence is that, for more than a year, the Russian government has quietly embedded an intelligence-gathering unit within RT that is focused on influence operations globally. That activity has been part of US officials described as a big expansion of RT’s role as an arm and mouthpiece of the Kremlin abroad. The activity goes beyond propaganda and covert influence operations to even include military procurement, according to US officials.

The flyer from State laying this out lists cover operations in Germany, France, and Argentina.

DOJ presumably timed last week’s indictment to beat the 60-day prohibition on announcements that might effect an election. But it was presumably also coordinated with Anthony Blinken’s trip to Eastern Europe, whence he just returned.

It appears that rolling out the indictment did two things. First, it laid out how this works, how a persona sets up an allegedly witting front, like Lauren Chen, to effectively recruit useful idiots on Russia’s behalf.

But by unrolling the indictment last week, DOJ likely facilitated further investigation of the Tenet operation.

It’s likely, for example, that DOJ needs cooperation from the podcasters like Benny and Pool to pursue an investigation into Chen any further. At the very least, prosecutors would have to lock them into statements that they had no idea they were working for RT. Those statements might not be entirely persuasive, mind you, but such statements would be crucial to showing that Chen was part of the RT deception, part of an effort by an agent of Russia to spread their propaganda via unwitting cut-outs.

By rolling out the indictment in the way they did, DOJ gave all the podcasters an incentive to immediately claim ignorance, if for no other reason than to preserve their own brand. As NBC curated, several of the podcasters did claim they were victims, within a day.

Pool said, in part, in a lengthy statement on X: “Should these allegations prove true, I as well as the other personalities and commentators were deceived and are victims. I cannot speak for anyone else at the company as to what they do or to what they are instructed.”

[Benny] Johnson, also on X, said: “A year ago, a media startup pitched my company to provide content as an independent contractor. Our lawyers negotiated a standard, arms length deal, which was later terminated. We are disturbed by the allegations in today’s indictment, which make clear that myself and other influencers were victims in this alleged scheme. My lawyers will handle anyone who states or suggests otherwise.”

[Tayler] Hansen said, in part, on X: “These allegations come as a complete shock to me and the other hosts at TENET Media. I want to be as clear as possible, I was never directed to report on any topic and had complete freedom and control over my reporting at all times. I would never agree to any arrangement where I am not the sole person in charge of the stories I cover and content I create.”

[Dave] Rubin said, in part, on X:” These allegations clearly show that I and other commentators were the victims of this scheme. I knew absolutely nothing about any of this fraudulent activity. Period.”

[Matt] Christiansen said, in part, on X: “At no point has anyone ever directed me what to say or not to say, and I would never agree to anything otherwise. My videos and streams for Tenet are exactly the same as my videos and streams on my personal channels. Every word is from me and me alone.” [my emphasis]

And after they did claim to be victims, the FBI called them up and said, “how would you like to sit for a voluntary interview … you know, as a victim?”

This is why I’m way more sympathetic to Pool and Benny’s claims they’re victims than others, who rightly argue they had to have known something sketchy was going on: not because I believe they were that stupid (both could have been, but Pool, who hired Cassandra Fairbanks after she was already tainted as a Sputnik persona, has been swimming in these waters for years). But because DOJ set this up to highly motivate them to position themselves, publicly, as victims and then capitalized on that to take further investigative steps.

But this operation also served to disrupt Russian support of propaganda, which is one of the reasons I view the efforts rolled out last week as an attempt to disrupt ongoing efforts, rather than just an attempt to name-and-shame.

After all, the podcasters (Rubin and Benny had already moved on; the others had not) are out of a hefty paycheck. Tim Pool will either have to find some right wing billionaire to pay wildly inflated rates for his apology for Russia from here on out, or he’ll have to scale back. It might take some weeks to do that. He might even have to give up politicizing the local skateboard park.

By sanctioning RT, among others, upon release of this indictment, not just the Tenet podcasters, but anyone else in the US knowingly on the RT grift, has to drop their gig immediately.

Presumably, a number of other people are doing quietly what former weapons inspector Scott Ritter did quite boisterously last week. Ritter — who, last month, had his house searched — posted that the sanctions on RT meant he had to immediately drop his RT gigs.

Per his claims in a Substack post released since then, Ritter was getting nothing close to what the podcasters were.

Amidst revelations of multi-million dollar deals where influencers were paid $100,000 a week to produce video content, and on-air hosts given million dollar salaries along with other perks, my relationship with Russian state-owned media pales into insignificance, contracted as an outside contributor compensated with what now, by comparison, seems a paltry $250-280 per item published, with the total amount received amounting to less than 7% of my total annual income.

Apparently, my negotiating skills are lacking—rather than insisting that I would not consider any offer under $5 million, I was content with compensation that matched the industry “norm” of between $150-300 per item published. Earlier this year, when RT thought that my interest in contributing had waned, they offered to double the price paid per article; I declined, insisting that we adhere to the letter of our agreement.

And now having done that — having forced people who were being supported by RT to drop their gigs — partners around the world can turn to unpacking similar operations in their own countries.

There are, undoubtedly, other nodes like the Tenet one, both in the US and around the world. This one may have been particularly important to disrupt before the election, because of Chen’s involvement with Turning Point, which will have a key role in Trump’s GOTV.

But whatever she was doing, TPA has cut her off.

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Discerning Russian Trolls Appreciate Truth Social’s Treatment of Fake Accounts

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Today, the former President tweeted that his failing social media company, “IS GREAT. THE REAL VOICE OF AMERICA.”

A number of people suggested he was doing so in an effort to preserve value before he can start dumping the stock.

If it was, though, it seemed to come just as an early morning spike in the stock price started to collapse, even as other Truth Social executives have started unloading their stock before Trump can do so later this month.

But I was interested in the post for another reason.

The most interesting details from the Doppelganger dossier released with a takedown request last week pertain to how the Russian trolls described efforts by social media companies to police inauthentic content.

A media plan proposed targeting Ukrainian audiences on Facebook and Xitter — the administrators of which, the plan claimed, “have a pro-Ukrainian position” that leads them to “subject communities promotion pro-Russian narratives to strict moderation rules” — by spending at least four months building a following before expressing pro-Russian views.

They’re effectively building sleeper cells of trolling accounts to evade moderation of inauthentic content.

But other Russian trolls were undaunted.

The Good Old USA project would target Facebook, Instagram, YouTube, Xitter, and Reddit precisely because those channels were, “free from ‘democratic censorship'” (in scare quotes).

As Yael Roth testified to Congress last year, the efforts to build an election integrity function at social media companies in response to Russia’s 2016 influence operation were “fundamentally bipartisan.” But now, Russian trolls aiming to tamper in the 2024 refer to such moderation efforts as “democratic censorship.”

But even Mark Zuckerberg’s company was viewed with some suspicion. A different document described that Xitter was the only mass US social media platform which Russia could use, because Meta “actively collaborates with the National Security Agency.”

Xitter, the document predicted, would start policing content more closely as the November election approached.

By far the most interesting observation about which social media platforms were appropriate for Russian propaganda campaigns, however, is this one, which appears in a Guerrilla Media campaign to exacerbate polarization in the US, in part by complaining about the cost of supporting Ukraine. As other plans did, this one described ways to bypass the moderation on Facebook, Xitter, and YouTube, in this case, by making perishable accounts. It also described the limits on YouTube, which tends to scrutinize accounts once they accrue 100,000 subscribers (which may explain why Russia was so interested in paying Dave Rubin and Tim Pool, because they organically have ten times that).

But then there’s a redacted comment about “Candidate A,” the substitution used to refer to Trump throughout this dossier.

Except it’s not a comment about Trump. By context, it’s obviously a comment about his social media site.

Helpfully, the reference to Truth Social is not redacted in the affidavit itself.

SDA documents include a proposal for another campaign focused on influencing the United States, titled “The Guerrilla Media Campaign in the United States.” See Exhibit 9. 18 The Guerilla Media Campaign focused on exploiting the perceived polarization of U.S. society by focusing on eight “Campaign Topics.” As reflected in the proposal, SDA anticipated using social media profiles on Facebook, X (formerly known as Twitter), YouTube, and Truth Social but noted that with “Facebook, Twitter and YouTube, we need to create multiple ‘perishable’ accounts, primarily for the work with comments.” [my emphasis]

By context, the affidavit explains what distinguishes the social media platform of Candidate A, Truth Social: Unlike Facebook, Xitter, and YouTube, Truth Social doesn’t require perishable accounts to evade censorship.

Whenever Russian trolls wrote this, then, they perceived that Truth Social did not exercise the kind of moderation of obvious Russian propaganda as Truth Social’s bigger rivals.

Mind you, the other references to American social media platforms suggest that these Russian trolls don’t consider Truth Social to have the mass reach that Meta platforms and Xitter have. Maybe Truth Social wouldn’t be a failing social media platform if it were less friendly to Russian trolls pretending to be Americans.

“TRUTH SOCIAL IS GREAT. THE REAL VOICE OF AMERICA!,” Trump tweeted out the week after a report on how Russia exploits US social media platforms to spread propaganda.

Only, certain discerning Russian trolls find Truth Social to be particularly welcoming to Russian voices, even those only pretending to be American voices.

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Doppelgänger Debunking: Monitoring Social Media Does Not Equate to Recruitment

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As noted, I plan to do a more substantive piece on DOJ’s effort to disrupt Russian efforts to influence the election, but first want to debunk a few claims people are making about last week’s releases.

In this post, I debunked the claim that Lauren Chen is likely to have been targeted under FISA; FBI wouldn’t have needed FISA, when criminal process is easier to get.

There’s an even bigger error regarding something about the Doppelgänger materials released last week, traceable in significant part to this post and the screen cap from it, disseminated by others:

The screen cap comes from this passage of the affidavit supporting the take-down of a bunch of sites used by Russia’s Doppelgänger project. Gilbert and others have screen-capped primarily the part describing influencers (italicized below), without the part that directly followed, describing that Russia has a similar list of people who don’t support Russia, much less the part (bold below) describing that these were accounts were monitored to track public opinion.

66. SDA documents further reveal that SDA extensively monitors and collects information about a large number of media organizations and social media influencers. One document revealed a list of more than 2,800 people on various social media platforms like Twitter, Facebook and Telegram, spanning 81 countries, that SDA identified as influencers, including television and radio hosts, politicians, bloggers, journalists, businessmen, professors, think-tank analysts, veterans, professors, and comedians. When referring to politicians, the list often mentioned which U.S. state and/or political party they represent and the position they hold in Congress. The U.S.-based influencers accounted for approximately 21% of the accounts being monitored by SDA. On another list of over 1,900 “anti-influencers”14 from 52 countries, the U.S.- based accounts comprised 26% of the total accounts being monitored by SDA. I assess that “anti-influencer” indicates that the account posts content that SDA views as contrary to Russian objectives. Based on my review of other records obtained during this investigation, I know that SDA adds information captured through its monitoring efforts to dashboards. These dashboards analyze trends in public opinion and thereby measure the effectiveness of the malign foreign influence campaign based on its impact on public opinion. SDA’s content varies from project to project; however, it can include videos, memes, cartoons, social media posts, and/or articles. SDA’s content delivery also varies each campaign, but often relies heavily on social media posts driving targeted audiences to domains SDA controls, like the SUBJECT DOMAINS. [my emphasis]

In his story on the releases, Gilbert extrapolates from a different document that primarily focuses on using targeted advertising to attract social media users to Russian-made content, to suggest this list of 2,800 influencers might constitute those envisioned in a small section of the document as “collaborators,” though that section of the document doesn’t use the term, “collaborators.”

According to the Good Old USA project document, the Kremlin was seeking to work with influencers who are “proponents of traditional values, who stand up for ending the war in Ukraine and peaceful relations between the US and Russia, and who are ready to get involved in the promotion of the project narratives.”

Among the types of influencers listed as possible collaborators are actors, politicians, media representatives, activists, and clergymen.

The affidavit references one document maintained by the Social Design Agency, which is not included in the unsealed court documents, that contains a list of more than 2,800 people identified as influencers. While this list is global, US-based influencers account for around 20 percent of the accounts being monitored, including many US lawmakers, according to an analysis of the list by the FBI.

That is, in my opinion, a wild misreading of the material, not least because the document envisioning “working with influencers” includes passive ways to exploit pro-Russian voices, including the “rollout of real comments” from them.

Other even more inflammatory tweets have highlighted the same passage to claim that Russia is paying 2,800 people.

While it’s not clear that the FBI knows precisely what the Social Design Agency is doing with these lists, all it claims that they’re going is tracking these accounts — both pro and anti-Russian social media accounts — to “analyze trends in public opinion and thereby measure the effectiveness of the malign foreign influence campaign based on its impact on public opinion.”

There’s no claim the 2,800 people on the list are being paid.

Even if SDA were doing more, it would in no way signal full “collaboration.” An earlier report on Doppelgänger’s work (one I’m still looking for, to link), for example, described how Doppelgänger would exploit the way Elon Musk uses his Xitter account to piggyback on his visibility to magnify pro-Russian content with no involvement from him. Elmo is so predictable and so stupid with his Xitter account it requires no payment or even witting involvement to be exploited in such a way.

Similarly, there are any number of right wing members of Congress who oppose Ukrainian funding in significant part because Trump told them to; while some of them might be on the Russian payroll, the overwhelming majority are not, but they nevertheless produce social media content that is of enormous use to Russia. JK Rowling’s transphobic content similarly attracts the kind of engagement that could be usefully exploited for Russia.

The inclusion of anti-influencers on this list is a big tell that those on the influencer list are not all recruited. Indeed, my own Xitter account could be big enough and — because Musk has forced a virtual blue check on my account, increasing my visibility in algorithms — to be included on an anti-influencer account; Asha Rangappa, Tom Nichols, and Anne Applebaum are all people with credentialed anti-Russian views with more Xitter followers than me who are even more likely candidates. It often happens that trolls with their own blue checks will attempt to hijack my timeline to stir up fights; it takes aggressive blocking to prevent it.

In other words, it doesn’t take recruitment to exploit readily apparent algorithmic patterns. Even overt opposition can be harnessed, if such efforts are not aggressively combatted.

And there’s nothing in the affidavit, describing an effort to monitor public opinion, to suggest Russia is doing even that.

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John Lauro’s Mike Pence Gateway Drug

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As I laid out last week, Trump’s lawyers want to make the entire immunity discussion about his January 6 indictment about Mike Pence; they had wanted to do so after the election. They argued in their status report that Jack Smith will be unable to rebut the presumption invented by John Roberts that discussions with Mike Pence are immune from prosecution.

[I]n Trump, the Supreme Court held that President Trump is “at least presumptively immune from prosecution for” all alleged efforts “to pressure the Vice President to take particular acts in connection with his role at the certification proceeding.” Trump v. United States, 144 S. Ct. 2312, 2336 (2024). These same allegations are foundational to the Superseding Indictment and each of its four counts. See Doc. 226 at ¶¶ 5, 9(b), 11(c)-(d), 14, 51(b), 55, 67–90, 99–100. If the Court determines, as it should, that the Special Counsel cannot rebut the presumption that these acts are immune, binding law requires that the entire indictment be dismissed because the grand jury considered immunized evidence. Trump, 144 S. Ct. 2312, 2340 (2024) (“Presidents . . . cannot be indicted based on conduct for which they are immune from prosecution.”).

The Special Counsel’s inability to rebut the presumption as to Pence is dispositive to this case. The special counsel will be unable to do so as a matter of law, thus rendering the remainder of the case moot. Trump, 144 S. Ct. 2312, 2337 (2024) (“We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.”). [emphasis original]

As it became clear at last Thursday’s hearing that Judge Tanya Chutkan wasn’t going to let Trump delay until after the election, Trump’s attorney, John Lauro, made a number of desperate bids to — first — limit the entire immunity discussion to Mike Pence, and then limit that discussion to legal issues, not evidentiary ones. This seems to be an effort to prevent actual facts, including previously undisclosed ones, from being disclosed before the election.

Here’s how Lauro described it. All sides agree that the immunity decision treated conversations between the President and the Vice President as presumptively immune (though Judge Chutkan stumbled on this once). Lauro asserted that the standard the Supreme Court set on whether prosecutors could rebut this presumptive immunity was whether using conversations between the President and his Vice President would intrude on important presidential functions. If it would, those conversations would have to be immunized and, because the grand jury was exposed to them in the process of superseding the indictment, the entire indictment would have to be thrown out.

MR. LAURO: That’s what I’ve said, that that’s an official act.

So as a matter of — as an initial matter, the issue before the Court is whether or not the Government can overcome the presumption, whether or not they can show that there’s no way, no possible way, that the lack of immunity would result in an intrusion on an important presidential function.

They can’t show that. And if, in fact, the communications with Vice President Pence, which are all over this indictment, if, in fact, those are immune, then that entire indictment is improper and illegitimate. And that’s a gateway issue that your Honor needs to decide right away.

That can be decided without an evidentiary hearing. That could be decided as a matter of law guided by counsel, which is exactly what the Supreme Court suggested.

A bit later in the hearing, Lauro argued that Judge Chutkan could first rule on the legal issues — the ones the Supreme Court already did rule on — and only then turn to the evidence.

MR. LAURO:  [T]he issues here, your Honor, at least initially, can be decided on a legal basis. Obviously, there’s some room for your Honor’s determination as to the timing. But the structure, the sequencing, makes perfect sense in terms of the way we proposed it.

That’s when he raised the election.

MR. LAURO: These important issues, which the Supreme Court has said are of great magnitude to the country, should not be decided by an asymmetrical proffer from the Government without President Trump’s ability under due process, the Fifth Amendment and the Sixth Amendment, to meet these witnesses and cross-examine them. That would be an inherently unfair and inequitable process.

THE COURT: It’s not unfair in the sense that you don’t get an opportunity to address the issues. You’re just doing it in a different sequence. There’s nothing inherently violative of due process by the Government filing an open brief and your getting an advance look at their arguments, have a chance to respond and address them. The Government replies. And if you want to file a sur-reply, you can ask for leave to file a sur-reply. But there’s nothing inherently unfair in that. It’s just a matter of who goes first.

MR. LAURO: Well, it’s incredibly unfair in the sense that they’re able to put in the public record at this very sensitive time in our nation’s history —

THE COURT: Ah.

Judge Chutkan dismissed the notion that any of this should be delayed in light of the election because it — Trump’s past action — is not a dispute about this election.

THE COURT: Let’s just — let’s just discuss what the sensitive time is. I understand there is an election impending, and I’ve said before and I say again that the electoral process and the timing of the election and what needs to happen before or shouldn’t happen before the election is not relevant here. This Court is not concerned with the electoral schedule. Yes, there’s an election coming. But the sensitive time that you’re talking about, if you’re talking about the timing of legal issues and the timing of evidentiary issues in relation to when the election is, that’s not — that’s nothing I’m going to consider.

MR. LAURO: I’m not asking you to consider it. But the courts have routinely said that courts should not be drawn into election disputes. And there is an inherent unfairness in the legal process —

THE COURT: Oh, I am definitely not getting drawn into an election dispute.

MR. LAURO: Right. And what I’m saying is that this process is inherently unfair, particularly during this sensitive time that we’re in.

Then, after Lauro raised issues of discovery and grand jury testimony, he doubled and tripled down on his bid to keep this evidence out of the public view before the election, leading to this crescendo, before Judge Chutkan cut him off.

But for them to selectively decide how they want to portray their case before we move to dismiss is completely contrary to the Rules of Criminal Procedure. It shows fundamental unfairness never before seen in a district court.

And it’s exactly the kind of proceeding that the Supreme Court said should never take place, and it’s the reason that the Supreme Court, I believe, in part ruled as it did, that these issues are very important. They need to be developed with some legal care in a very transparent and careful way.

This is not behind-the-envelope — or back-of-the-envelope jurisprudence. This has to be done in a very, very deliberative way.

What we’re suggesting is your Honor deal with the legal issues first in accordance with the Supreme Court ruling and then turn to the merits of the evidentiary issues that need to be developed. That way, it’s structured. If your Honor decides — and your Honor may very well decide — that the information relating to Vice President Pence is not only presumptively immune, but immune, then that indictment has to be dismissed.

Why do we go through merits arguments on presidential immunity when as an initial matter the Court can dismiss this case right away? And that’s exactly what the Supreme Court said you should look at. Let’s deal with the gateway issues first. And that’s the way the Court structured the opinion.

THE COURT: Well, when the Supreme Court considered this case, Mr. Lauro, they had the original indictment in front of them, which set forth all the communications with the former vice president that are — that you’re talking about.

They could have ruled then that the indictment was so permeated with those kinds of contacts that it should be — that it couldn’t hold up. They didn’t. They sent it back to me to make certain findings, not just with regard to those communications, but with regard to all the allegations in the indictment.

So I’m not sure that I agree with you that as a matter of law I could just dismiss the indictment based on the Supreme Court’s — dismiss the superseding indictment based on the Supreme Court’s decision at all.

MR. LAURO: Of course you can. Because the Supreme Court — and the ruling is clear, crystal clear — has already decided that the communications with Vice President Pence are official acts within the outer perimeter of the presidential responsibility. That is the case law of this case right now.

The only issue with respect to Vice President Pence is whether or not they can overcome the presumption of immunity, which is an incredibly high bar. They have to show that under no circumstances, under no circumstances is there any intrusion with respect to the authority and responsibility of the presidency in light of those communications.

That’s an incredibly high bar. Your Honor can decide that as a legal issue guided by counsel. We can make whatever proffers are necessary.

If your Honor decides that that is immune, then the whole indictment craters. It goes away. Because the Supreme Court decision made very clear you can’t use immunized testimony with respect to an indictment or otherwise at trial.

So this is a logical way for the Court to deal with these issues. What they’re suggesting — and I don’t think your Honor is suggesting it, but asking questions about it — is that we leapfrog over the legal issues. We get —

THE COURT: That’s not what I’m suggesting.

MR. LAURO: No. I’m not suggesting you’re suggesting it. I’m suggesting that’s what they’re suggesting.

THE COURT: I actually don’t think that’s what they’re suggesting.

MR. LAURO: Well, they are in this respect: They’re suggesting they leapfrog into merits-based argument over all the official acts. Right? They’re going to do their big proffer.

All of that is wasted time if your Honor decides initially that the Pence communications are immune and they didn’t overcome the presumption.

We can avoid months and months of briefing by your Honor dealing with the gateway issue first. That’s exactly what the Supreme Court said you should be doing.

THE COURT: All right. I think I’ve — you’ve made your argument on that point.

There’s nothing legal available to Judge Chutkan that wasn’t already available to the Justices. There’s no conceivable way SCOTUS could have imagined Chutkan could carry out this inquiry without looking at the facts. And Lauro is misrepresenting SCOTUS’ concern with a jury seeing such immunized communications and a judge seeing them — after all, judges routinely weigh in on whether things like Speech and Debate communications are immunized, most recently in Scott Perry’s challenge to a warrant for his phone.

Now, Lauro may not be wrong that when SCOTUS reviews this after the election, they’ll agree that the bar is as “incredibly high” as Lauro suggests. We all thought he was batshit when he said the President would have this kind of immunity the first time, but he ended up rightly predicting that the Republican members of SCOTUS were that corrupt.

Here’s what the immunity decision actually said.

Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.

The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. Ibid. Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of “presiding over the Senate” is “not an ‘executive branch’ function.” Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974). With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process. So the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald, 457 U. S., at 754; see supra, at 14.

At the same time, however, the President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions.

It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.

But there are three underlying tensions here.

First, quite early on, in the first time Lauro presented this argument to Judge Chutkan, she described that she wouldn’t be doing what SCOTUS told her to do if she didn’t conduct a fact-based analysis. She noted, as she would later, that the Supreme Court had everything Lauro claimed she could rely on — the indictment — but they didn’t make the legal decisions he said she could make without reviewing the evidence.

But when she made that argument the first time, she noted that she could be reversed (this would include the DC Circuit) if she didn’t conduct this fact-bound analysis.

Then Judge Chutkan, whose original opinion seemingly stated basic facts inherent to the Constitution was reversed by a decision that dramatically rewrote the Constitution, repeated, again, that she could be reversed no matter what.

MR. LAURO: That can be decided without an evidentiary hearing. That could be decided as a matter of law guided by counsel, which is exactly what the Supreme Court suggested.

THE COURT: I actually don’t think so, Mr. Lauro. The Supreme Court had the indictment before it. They decided — they ruled on these three categories. And certainly conversations with an existing vice president may be subject to the presumptive immunity that you talk about. But one of the things I have to decide is whether, based on facts presented to me by the Government, those conversations, those contacts, are somehow outside of his official duties.

MR. LAURO: I —

THE COURT: And I don’t think I can decide that as a matter of law. I think I would be — I would be risking reversal if I tried to decide that as a matter of law.

MR. LAURO: I would ask your Honor to reconsider —

THE COURT: I’m risking reversal no matter what I do.

Given the Calvinball the Supreme Court is playing with the Constitution, there’s literally no way she can avoid reversal by someone. So Lauro’s procedural complaint rings especially hollow. She’s likely to be reversed by somebody before this is over. I do agree she’s doing what SCOTUS told her, but even if she weren’t, all the normal incentives would be gone.

Plus, my guess is that Jack Smith will start from a different point, one Lauro never considered. The Supreme Court’s opinion assumed everything the President did was in the persona of the President. But the Blassingame decision that they pointedly did not address, at least, imagines that as candidate-for-President, nothing Trump did was an official act. When the President asks the Vice President to cast a tie-breaking vote to confirm a judge, he’s doing so as President. But when a candidate asks his running-mate to throw out 81 million votes, he’s doing so as a candidate, not a President.

And that’s something that Chutkan missed when she reminded Lauro, twice, that. “the original indictment in front of [SCOTUS …] set forth all the communications with the former vice president that are.” Not all the communications with Pence from the original indictment are in there. The superseding indictment took out several references Trump made, in conversations with Pence, to the Justice Department.

On December 29, as reflected in the Vice President’s contemporaneous notes, the Defendant falsely told the Vice President that the “Justice Dept [was] finding major infractions.”

[snip]

76. During the meeting, as reflected in the Vice President’s contemporaneous notes, the
Defendant made knowingly false claims of election fraud, including, “Bottom line-won every state by 100,000s of votes” and “We won every state,” and asked-regarding a claim his senior Justice Department officials previously had told him was false, including as recently as the night before-“What about 205,000 votes more in PA than voters?”

That’s important for two reasons. First, because it provides even further reason for Chutkan to conduct a fact-bound analysis.

But it also raises the question: What happens when Trump tries to reintroduce these references to DOJ? If he tries to use them to prove that Trump was speaking in his role as President, does that amount to a waiver of the immunity that Trump has worked so hard to get?

John Lauro worked hard to insist that everything involving Pence be excluded without closer review. But unless he invents a procedural reason to forestall DOJ’s memo on September 26, DOJ will get one (or two, with the reply) chances to lay out — before the election — how Trump tried to use his incumbency, and Mike Pence’s role as President of the Senate, to steal an election against from Joe Biden and the woman who currently is the President of the Senate.

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The September 26 Brief We’ll Get in the Trump January 6 Case

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As I laid out in this thread, Judge Tanya Chutkan has set a deadline of September 26 for Jack Smith’s team to write a brief explaining how the superseding indictment against Trump consists exclusively of private conduct. From news coverage (Anna Bower and Roger Parloff did a typically good write-up of the hearing), it wasn’t entirely clear to me what that brief would entail.

Here’s how Thomas Windom described it in Thursday’s hearing:

MR. WINDOM: So what would our brief and what would our approach look like? What we anticipate filing in an opening brief is a comprehensive discussion and description of both pled and unpled facts. What this would do would be to set the stage so that all parties and the Court know the issues that the Court needs to consider in order to make its fact-bound determinations that the Supreme Court has required.

THE COURT: Your proposal mentions the Government’s briefing would include a proffer about unpled categories of evidence. You just mentioned that. Can you be a little more specific — or is that what you’re getting to? — about what that would look like? I mean, are you talking about not just — not the evidence itself, obviously, but the form it would take, proffered by — in written form? What are we talking about?

MR. WINDOM: Sure. So our initial view on it is this. We didn’t want to get ahead of the Court to lay anything specifically out.

But here’s what we are — what we were thinking and what we wanted to discuss with the Court: We were thinking a comprehensive brief where we would set forth the facts. What we would — that part of the brief would include things that are both in and outside the indictment. We anticipate that the brief would have a substantial number of exhibits. Those exhibits would come in the form of either grand jury transcripts, interview transcripts, 302s, documentary exhibits, things of that nature, things that would allow the Court to consider both the circumstances and the content, form and context, all in the words of the Supreme Court, that the Court needs to have in order to make its determinations.

We also in that brief, in addition to the facts, we would set forth for the Court why we believe that the conduct that is in the brief is private in nature and is not subject to immunity; and then with respect to the allegations in the superseding indictment involving the vice president, that the Supreme Court specifically talked about with respect to a presumption of immunity, why we believe that that presumption of immunity is rebutted.

We would — the benefit of us going first, which is what we are asking for, is that we would have everything in one place. The defense would know what the landscape looks like, as would the Court. And then we think that that would create a cleaner docket both for your determinations and also for any appellate court to review your determinations.

THE COURT: All right. So at this point, you wouldn’t anticipate proffering any actual evidence. It would be written submissions. And then, should I feel that I need further evidence, we would discuss that. Is that what you’re talking about?

MR. WINDOM: That’s right, your Honor.

Particularly given Windom’s reference to grand jury transcripts, that raised the question of how much of these “substantial number of exhibits” we’d get to see. The answer, per Windom, is that the existing protective order would govern.

THE COURT: How much of that information do you anticipate is going to be under seal?

MR. WINDOM: So that’s a good question. We don’t know the specific answer to that.

But I do know this: A year ago, we spent a considerable amount of time going through a protective order and making sure it could stand time. Paragraphs 11 and 12 specifically deal with this situation the defense counsel has raised. It is the Court that will decide what is unsealed from the sensitive discovery. It is not the defense or the Government that will do that.

We anticipate, consistent with the protective order, that any filing of sensitive material would occur first with a motion for leave to file under seal. The parties and the Court can determine thereafter what gets released into the public record in redacted form.

Here’s the operative language from the Protective Order.

11. The parties may include designated Sensitive Materials in any public filing or use designated Sensitive Materials during any hearing or the trial of this matter without leave of court if all sensitive information is redacted, and the parties have previously conferred and agreed to the redactions. No party shall disclose unredacted Sensitive Materials in open court or public filings without prior authorization by the court (except if the defendant chooses to include in a public document Sensitive Materials relating solely and directly to the defendant’s personally identifying information). If a party includes unredacted Sensitive Materials in any filing with the court, they shall be submitted under seal.

12. Any filing under seal must be accompanied by a motion for leave to file under seal as required by Local Rule of Criminal Procedure 49(f)(6)(i), as well as a redacted copy of any included Sensitive Materials for the Clerk of the Court to file on the public docket if the court were to grant the motion for leave to file under seal.

Effectively, then, Windom imagines that many of the exhibits would be submitted under seal, and there would be a fight about what gets released publicly, perhaps not unlike the process that has unfolded before Judge Cannon.

But Judge Chutkan would have the final say.

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“If You Are a Psycho and You Want to Make Headlines”

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JD Vance has gotten a lot of deserved criticism for the offhand way he dismissed the Apalachee School shooting.

If you are a psycho and you want to make headlines, you realize that our schools are soft targets. And we have got to bolster security at our schools.

[snip]

I don’t want my kids to go to school in a place where they feel like you’ve got to have additional security. But that is increasingly the reality we live in.

[snip]

We don’t have to like the reality that we live in. But it is the reality that we live in. We’ve got to deal with it.

Trump, of course, famously told the families grieving after a shooting in Perry, Iowa, “It’s just horrible, so surprising to see it here. But have to get over it, we have to move forward.”

It’s not just that JD’s proposed solution is to box everyone up in aquariums like the Secret Service has done to Trump, but the way in which both men want to pray (or feign prayer, in Trump’s case) and move on.

Compare that to how Trump’s own people are treating his own shooting.

Vance, of course, didn’t blame some “psycho who wanted to make headlines” for Trump’s shooting. Instead, he blamed Joe Biden.

And Trump’s top propagandist, Stephen Miller, won’t shut up about Trump’s shooting.

 

Trump’s people want people to obsess about his own shooting, a month ago, even while minimizing the impact of a shooting that killed four, including two kids. That’s true, even though all the evidence to date suggests that Thomas Crooks shares many similarities with school shooters like accused Georgia shooter Colt Gray, including a fascination with previous school (and in Crooks’ case, presidential) shooters.

Even given all of the Secret Service’s failures, Donald Trump was not a soft target, like schools are. But ultimately he, too, was  vulnerable to an assault rifle in the hands of a disturbed young man hoping for notoriety.

Trump and Stephen Miller and JD Vance don’t want to get over that shooting attempt, and the murder of Corey Comperatore. They need Trump to be more special than all the kids gunned down in their schools. They need Trump’s shooting to have a meaning they won’t ascribe to the murder of children in their classrooms.

And yet Trump is no more special a victim than the teenagers killed in Georgia.

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Stop Obsessing about Kamala Harris’ (Polling) Bumps

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I’m going to defend Jonathan Karl, who described ABC’s poll showing a six point lead over Trump as within the margin of error. Here is Dan Drezner’s complaint about Karl’s comment, which is similar to that of many other people.

Take, for example, Sunday’s ABC News/Ipsos poll of the national race. It showed Harris leading 52%-46% among likely voters, a six-point lead that was outside the margin of error. Given the closeness of the race, a national poll showing Harris ahead seems newsworthy.

That, however, is not how ABC’s Jonathan Karl chose to frame it:

Karl says that Harris’ lead is “just barely outside the margin of error,” which is just a weird way to describe one of the few polls where someone has a statistically significant lead. Karl could have simply pivoted from the poll result to talk about how it’s still very close in the Electoral College — but he didn’t. Instead, he described a poll in which Harris had a significant lead as a toss-up.

It’s absolutely right that this poll is outside the margin of error (it is unchanged since before the convention). But Karl is right that the race is much closer in swing states, where voters have been flooded with Trump attacks on Harris for weeks now.

I think Democrats are telling themselves a wildly overoptimistic story about this race. I’m grateful Kamala and her campaign manager keep warning that she remains the underdog in this race.

That’s because this race is unlike any normal race. That’s true not just because Harris is a mixed race woman, though both her gender and race should raise concerns that the polls are overestimating her support (we literally hear stories about Republican women wondering if their spouses will learn for whom they voted). But it’s true because Kamala is not yet halfway through her race, and she’s running against a former President over 90% of the way done.

Pundits are measuring this odd campaign rhythm according to normal rules, such as that conventions bring a bounce (neither did this year) or that Labor Day marks some line in a sand about the final stage of the race.

As one example, both Frank Luntz…

And Nate Silver…

Pointed to this single Michigan poll of 600 possible voters to defend their argument that the Vice President has not gotten a bump from the convention. Neither of these men — a Republican partisan and a guy whose gambling habit may be influencing his analysis — are reliable sources.

And this is a particularly bad poll on which to base such judgments. Polling in MI has been pretty shitty going back two decades (though it is true that Trump has underperformed in many of them). It took WDIV/Detroit News five days to release this poll as compared to one day for their July poll. It was all done post-RFK endorsement of Trump (and as such could reflect RFK’s Trump-leaning vote moving to the former president), but before his bid to be removed from the ballot failed. Because of Michigan’s significant Arab American population, it is the swing state most likely to be influenced by Biden’s failures on Israeli policy. The August poll has a Likely Voter category (the one they report) and a Definite Voter category, the latter of which Kamala leads by 1.6%.

And as my former blogmate Dana Houle (who has run statewide campaigns in MI) noted, this poll delays release of crosstabs, and when they released theirs in January, they showed wildly unlikely results (results equally inconsistent with July’s poll).

More importantly, both the WDIV poll and the ABC one show two things that many polls are reflecting: First, while overall support for the candidates may look the same, the nature of their support is changing, with a gender split growing for each.

More curiously, that’s happening even as Kamala Harris’ favorability is going up. Even Joe Biden is on course to tip over into favorable ratings by election day!

That’s also happening as the electorate, at least in the short term, is becoming more female, more diverse.

What’s going on with the race is that Trump has a ceiling of support. While more men may be saying they’ll vote for Trump, Trump is not getting more popular.

And so he needs to do something to increase Kamala’s negatives (the success of negative ads may explain the narrower polling in swing states, but Trump’s future ad payments may indicate he’s blowing the money it would take to keep that up).

And therein, I think, was the intent of the Arlington Cemetery stunt — where Trump’s people, invited in by a few people who lost family members in the Afghan withdraw — took video from the gravesides of people whose family did not give consent, and did so after physically shoving a cemetery staffer.

This is the Benghazi playbook. Trump’s attempt to politicize an Afghan withdrawal that he played an instrumental role, according to his own former National Security Adviser, in making chaotic. This is, as everything with Trump is, a planned stunt coordinated with the House GOP.

House Speaker Mike Johnson (R-La.) announced that Congress will honor the 13 American service members killed in the attack by presenting their families with the Congressional Gold Medal on Sept. 10.

“Congress has a duty to ensure these sacrifices are never forgotten, and it is my distinct honor to announce that Congress will bestow the families of these 13 heroes with the Congressional Gold Medal — the highest award Congress can present to any individual or group,” Johnson said in a statement released last week.

The ceremony, and remarks by a bevy of Republican lawmakers, will take place at the U.S. Capitol Rotunda the same day as the presidential debate between Harris and Trump.

Like Trump’s planned attack on Biden incorporating documents altered by DOJ, and like his hosting of Tony Bobulinski in October 2020, Trump is hoping he can use the debate to stage a Reality TV event that gives right wingers a hook for the remainder of the campaign.

The reason why right wingers still complain that 51 former spooks said, truthfully, that the Hunter Biden laptop looked like an Russian information operation is that it undercut Trump’s Reality TV show; Trump even tried to use that as his stunt for the debate with Biden.

Here, though, Trump doesn’t have the two to four years on which both the Hunter Biden laptop and the Benghazi attacks built. Plus, the Arlington stunt has begun to backfire, most notably with John McCain’s son publicly endorsing Kamala in response. If Jamie Raskin succeeds in getting answers from DOD about what happened before the debate, it risks upending Trump’s hoped-for attack by demonstrating the contempt in which he holds service members. This risks turning into yet another story on how Trump believes service members are suckers and losers.

There’s one more thing that remains unsteady in this race: The great disparity in most polls between statewide and presidential polling (one exception out today, CNN’s, shows at least two state races — the Senate races in AZ and PA — that are not remotely credible). That may reflect misses in the modeling of the race more generally.

Kamala Harris has not gotten the polling bumps where pundits are trained to look for them.

But even as they watch for those signs closely, they’re not contemplating how other nearly unprecedented movement might shape the race.

Update: One more point about the weird timing of this race. USAT has a poll (which finished fieldwork on August 28) showing that Kamala has significantly narrowed the margins on the two topics Trump wanted to run on: the economy and immigration.

Harris also has made inroads on which candidate would do a better job handling important issues.

  • On the economy, voters’ top concern, Trump was favored over Harris by 6 percentage points, 51%-45%. That’s an asset, to be sure, but it is less than half the 14-point advantage he held over Biden in June.
  • On immigration, an issue that energizes Republican voters, Trump was favored by 3 points, 50%-47%, down from the 13-point preference he had over Biden.

She has narrowed that gap, even while she’s still rolling out policy proposals, such as new tax credits to support small business formation.

Harris’ proposal, released on Tuesday, calls for significantly expanding the tax deduction for start-up expenses from $5,000 to $50,000, while also setting the goal of 25 million new small-business applications during her first term, according to a Harris campaign official granted anonymity to describe details of the plan. The plan also proposes reducing barriers to getting occupational licenses and developing a standard tax deduction for small businesses.

There’s a famous line Andy Card used when discussing the Iraq War in 2002: “From a marketing point of view, you don’t introduce new products in August.”

Whether by necessity or design, Kamala can offer news events like this for the next several weeks. And this one sets up a solid contrast before the debate, in which Trump will be forced to defend tax cuts for billionaires over support for small businesses.

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Trump Wants to Hide His Attempt to Assassinate Mike Pence from Voters

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In 2016, Donald Trump bragged, “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK?”

This election, Trump wants to hide from voters details of how he almost killed his Vice President, Mike Pence, and his claim that doing so was an official act protected by presidential immunity.

That’s the primary thing you need to know about the joint status report presented to Judge Tanya Chutkan in Trump’s January prosecution last night.

Jack Smith doesn’t propose a schedule (thereby avoiding any claim he’s trying to push pre-election developments), but he’s ready to get this process started right away. He does want Judge Chutkan to make determinations regarding immunity first and foremost. He cites Chutkan’s own order and SCOTUS’ remand order to justify that.

The Court has indicated that it intends to conduct its determinations related to immunity first and foremost. See, e.g., ECF No. 197 (Order denying without prejudice the defendant’s motion to dismiss the previous indictment on statutory grounds and specifying that he “may file a renewed motion once all issues of immunity have been resolved”). The Government agrees with this approach, both because the Supreme Court directed such a process on remand, see Trump v. United States, 144 S. Ct. 2312, 2340 (2024), and because the Supreme Court has “repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation,” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (internal citations omitted).

Trump, by contrast, wants to stall any consideration of immunity until December 13 by first litigating a challenge to Jack Smith’s appointment that Aileen Cannon approved but which conflicts with several binding precedents in the DC Circuit (and which Trump pointedly didn’t try before Chutkan last fall, when he submitted all his other motions to dismiss).

Trump-appointed Judge Mark Scarsi rejected Hunter Biden’s similar attempt to challenge David Weiss’ Special Counsel appointment in the wake of Judge Cannon’s ruling as untimely, and there’s good reason to believe that would be the likely outcome here, even before getting to the binding DC Circuit precedent.

You need look no further than Trump’s description of what he wants to challenge in the superseding indictment to understand why Trump wants to delay this fight until December: As I predicted, he wants to have the Mike Pence allegations thrown out.

In addition, while continuing to strongly maintain that many classes of conduct alleged in the Superseding Indictment are immune—including, but not limited to, Tweets and public statements about the federal 2020 Presidential election, communications with state officials about the federal election, and allegations relating to alternate slates of electors—President Trump may file a motion to dismiss focused specifically on the Special Counsel’s improper use of allegations related to Vice President Pence, along with other potential key threshold motions. Namely, in Trump, the Supreme Court held that President Trump is “at least presumptively immune from prosecution for” all alleged efforts “to pressure the Vice President to take particular acts in connection with his role at the certification proceeding.” Trump v. United States, 144 S. Ct. 2312, 2336 (2024). These same allegations are foundational to the Superseding Indictment and each of its four counts. See Doc. 226 at ¶¶ 5, 9(b), 11(c)-(d), 14, 51(b), 55, 67–90, 99–100. If the Court determines, as it should, that the Special Counsel cannot rebut the presumption that these acts are immune, binding law requires that the entire indictment be dismissed because the grand jury considered immunized evidence. Trump, 144 S. Ct. 2312, 2340 (2024) (“Presidents . . . cannot be indicted based on conduct for which they are immune from prosecution.”).

The Special Counsel’s inability to rebut the presumption as to Pence is dispositive to this case. The special counsel will be unable to do so as a matter of law, thus rendering the remainder of the case moot. Trump, 144 S. Ct. 2312, 2337 (2024) (“We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.” (emphasis added)).

To be sure, he’s not wrong to challenge the inclusion of the Pence allegations. Nor is he wrong in his view of how central Pence is to this indictment (though he overstates when he claims it would moot all else; the fake electors plot might survive the excision of the Mike Pence allegations).

As I explained, Justice Roberts raised the conversations with Pence specifically. But as I also explained, that is one of the shrewd things Jack Smith did in superseding the indictment: he stripped out all other things that obviously fit under Roberts’ guidelines, leaving only Trump’s efforts to get Pence to throw out the votes of 81 million Biden voters and when Pence refused, Trump’s action — a tweet — that almost got Pence assassinated.

Trump may well succeed in arguing that he can’t be prohibited from asking Pence to overturn the results of the election so the two of them could remain in power because any such prohibition would chill the normal conversations between Presidents and their Vice Presidents. That is simply the absurd logical result of Roberts’ opinion: that a President can order his Vice President to steal an election because any prohibition on doing so would chill the authority of the President.

But if Jack Smith has his way, Trump will have to make that argument — once, probably in a court filing in October — before voters go to the polls in November.

There are a bunch of legal details in this status report. But given the near certainty that if Trump wins, the entire prosecution will go away, the only one that really matters is that, this election, Trump isn’t so sure that he would lose no votes if he shot someone on Fifth Avenue — or if voters learned why and how he almost had his Vice President assassinated in the US Capitol — as he was in 2016.

Trump doesn’t want to tell voters he thinks that as President, he could have Mike Pence shot on the Senate floor — shot as punishment because his Vice President refused an illegal order to steal an election — and be immune from any consequences for doing so.

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