Beryl Howell’s Biggest Secret: Whether Bill Barr Killed the Egyptian Bank Investigation

As I noted, Judge Beryl Howell ended her tenure as DC’s Chief Judge yesterday decisively, ruling that Evan Corcoran must testify about topics she has found to be crime-fraud excepted.

By dint of age and tenure, Howell was appointed Chief Judge just in time to preside over the most remarkable set of investigations against a sitting and former President: the Mueller investigation and certain follow-on investigations, the January 6 investigation, and the stolen documents investigation.

And now Jeb Boasberg gets to pick up her work. Like Howell, he’s an Obama appointee; he already did a stint presiding over the FISA Court.

Howell’s decision requiring Corcoran to testify elicited all sorts of superlative language about the import of the decision. I’ll return to the number of other Trump lawyers against whom Howell has already approved legal process. The Corcoran decision really is not that unusual in the twin Jack Smith investigations. Or even in the other grand juries over which Howell has presided.

Indeed, the fruits of a warrant Howell approved on August 1, 2017 as part of an investigation into suspicious payments (especially those from Viktor Vekelselberg) to Michael Cohen’s Essential Consultants’ bank account, will likely yield Donald Trump’s first criminal indictment next week. Referrals of part of the resulting investigation to SDNY led to Cohen’s 2018 prosecution, including on the hush payments scheme. NYC has started making security preparations for Trump’s arrest on the same campaign finance scheme next week.

To repeat: a fairly uncontroversial decision Howell made six years ago — to approve the first of a series of warrants targeting Trump’s personal lawyer, Michael Cohen — will have played a part if and when Alvin Bragg indicts Trump next week.

Howell’s colleagues razzed her yesterday about all the secrets she may keep from the past seven years.

Howell seemed to freeze in her seat as the most senior jurist on the court, Judge Paul Friedman, publicly described her still-secret rulings in grand jury-related matters, pointing to press accounts of Howell ruling in favor of Trump in a contempt dispute over his office’s response to a grand jury subpoena for classified records and against Trump on an effort to assert attorney-client privilege in the same probe.

“What fascinating issues!” Friedman declared wryly as Howell remained stone-faced on the dais. “We’d all love to read her opinions, but we can’t,” he said to laughter.

Friedman did note, however, that Howell had issued 100 secret grand jury opinions during her seven-year term.

Another colleague, Judge Tanya Chutkan, also alluded to Howell’s work resolving disputes related to the court’s grand juries over the past seven years.

“There’s so much work Chief Judge Howell has done that we may never know about,” Chutkan said.

In an interview with Zoe Tillman, though, Howell suggested she expects some of it will be unsealed.

Howell said she was still processing the past seven years.

“A lot of my work in the grand jury arena remains under seal, so it is going to be very hard to say what my legacy will be until after some of that work gets unsealed and people are able to evaluate it,” she said.

I expect a good deal of her recent work will be unsealed, in fairly short order.

It bears reminding, though, that Judge Howell attempted to share information about what she had been overseeing in a grand jury with the House Judiciary Committee in 2019. In a 75-page opinion invoking the Federalist papers and defending separation of powers, Howell issued a ruling that should have been uncontroversial: that the House could have grand jury materials in contemplation of impeachment.

In her opinion, Howell cited a number of the things the House might get with grand jury testimony. They included Paul Manafort’s description of how Trump ordered him to chase the documents stolen from Hillary.

Again, the Mueller Report recounts an incident when then-candidate Trump spoke to associates indicating that he may have had advance knowledge of damaging leaks of documents illegally obtained through hacks by the Russians, stating “shortly after WikiLeaks’s July 22, 2016 release of hacked documents, [Manafort] spoke to Trump [redacted]; Manafort recalled that Trump responded that Manafort should [redacted] keep Trump updated. Deputy campaign manager Rick Gates said that . . . Manafort instructed Gates [redacted] status updates on upcoming releases. Around the same time, Gates was with Trump on a trip to an airport [redacted], and shortly after the call ended, Trump told Gates that more releases of damaging information would be coming.” Id. at II-18 (footnotes omitted) (redactions in original, with citation in footnote 27 redacted due to grand jury secrecy).

They included Don Jr’s refusal to testify to the grand jury about the June 9 meeting.

[A] discussion related to the Trump Tower Meeting contains two grand jury redactions: “On July 12, 2017, the Special Counsel’s Office [redacted] Trump Jr. [redacted] related to the June 9 meeting and those who attended the June 9 meeting.” Id. at II-105 (redactions in original).

They included Manafort’s details of his discussions with Konstantin Kilimnik.

The Mueller Report further recounts evidence suggesting that then-candidate Trump may have received advance information about Russia’s interference activities, stating:

Manafort, for his part, told the Office that, shortly after WikiLeaks’s July 22 release, Manafort also spoke with candidate Trump [redacted]. Manafort also [redacted] wanted to be kept apprised of any developments with WikiLeaks and separately told Gates to keep in touch [redacted] about future WikiLeaks releases. According to Gates, by the late summer of 2016, the Trump campaign was planning a press strategy, a communications campaign, and messaging based on the possible release of Clinton emails by WikiLeaks. [Redacted] while Trump and Gates were driving to LaGuardia Airport. [Redacted], shortly after the call candidate Trump told Gates that more releases of damaging information would be coming.

Id. at I-53–54 (footnotes omitted) (redactions in original, with citation in referenced footnote 206 redacted due to grand jury secrecy).

But Bill Barr’s DOJ, after having challenged the uncontroversial notion that the House should be permitted to receive what was obviously an impeachment referral, appealed to the DC Circuit, lost, and then stalled long enough to outlast Congress. Bill Barr effectively refused to let Congress receive and act on an impeachment referral. But Howell did her constitutionally mandated part.

It’s an action DOJ took during precisely the period when Barr was stalling long enough to outlast Congress that, in my mind, is the biggest secret Howell takes from her tenure: What happened with an investigation into a suspected $10 million donation in September 2016 from an Egyptian-owned bank that allowed Trump to stay in the race when he was running out of funds. Though aspects of the investigation were dribbled out in grand jury unsealings from Howell along the way, CNN first confirmed the Egyptian bank angle in 2020.

For more than three years, federal prosecutors investigated whether money flowing through an Egyptian state-owned bank could have backed millions of dollars Donald Trump donated to his own campaign days before he won the 2016 election, multiple sources familiar with the investigation told CNN.

The investigation, which both predated and outlasted special counsel Robert Mueller’s probe, examined whether there was an illegal foreign campaign contribution. It represents one of the most prolonged efforts by federal investigators to understand the President’s foreign financial ties, and became a significant but hidden part of the special counsel’s pursuits.

The investigation was kept so secret that at one point investigators locked down an entire floor of a federal courthouse in Washington, DC, so Mueller’s team could fight for the Egyptian bank’s records in closed-door court proceedings following a grand jury subpoena. The probe, which closed this summer with no charges filed, has never before been described publicly.

Prosecutors suspected there could be a link between the Egyptian bank and Trump’s campaign contribution, according to several of the sources, but they could never prove a connection.

Shortly after the investigation was killed, Barr went up to Hillsdale College and ranted about prosecuting corruption.

This criminalization of politics is not healthy. The criminal law is supposed to be reserved for the most egregious misconduct — conduct so bad that our society has decided it requires serious punishment, up to and including being locked away in a cage. These tools are not built to resolve political disputes and it would be a decidedly bad development for us to go the way of third world nations where new administrations routinely prosecute their predecessors for various ill-defined crimes against the state. The political winners ritually prosecuting the political losers is not the stuff of a mature democracy.

The Justice Department abets this culture of criminalization when we are not disciplined about what charges we will bring and what legal theories we will bless. Rather than root out true crimes — while leaving ethically dubious conduct to the voters — our prosecutors have all too often inserted themselves into the political process based on the flimsiest of legal theories. We have seen this time and again, with prosecutors bringing ill-conceived charges against prominent political figures, or launching debilitating investigations that thrust the Justice Department into the middle of the political process and preempt the ability of the people to decide.

This criminalization of politics will only worsen until we change the culture of concocting new legal theories to criminalize all manner of questionable conduct. Smart, ambitious lawyers have sought to amass glory by prosecuting prominent public figures since the Roman Republic. It is utterly unsurprising that prosecutors continue to do so today to the extent the Justice Department’s leaders will permit it.

Even at the time — with the Mike Flynn, Roger Stone, and Paul Manafort cases — it was clear that Barr was engaged in fairly unprecedented corruption of DOJ to protect Trump. Since then, we’ve learned of more. Most notably, as we await a potential Bragg indictment, Geoffrey Berman described how, after Cohen pled guilty in the hush payment case, Barr not only shut down any investigation of Trump on the charge, but attempted to reverse Cohen’s own prosecution.

While Cohen had pleaded guilty, our office continued to pursue investigations related to other possible campaign finance violations. When Barr took over in February 2019, he not only tried to kill the ongoing investigations but—incredibly—suggested that Cohen’s conviction on campaign finance charges be reversed.

Barr summoned Rob Khuzami in late February to challenge the basis of Cohen’s plea as well as the reasoning behind pursuing similar campaign finance charges against other individuals. Khuzami was told to cease all investigative work on the campaign finance allegations until the Office of Legal Counsel, an important part of Main Justice, determined there was a legal basis for the campaign finance charges to which Cohen pleaded guilty—and until Barr determined there was a sufficient federal interest in pursuing charges against others.

Barr even attempted to put supervision of the case in the hands of Richard Donoghue, as he did do with the Rudy Giuliani case.

Given that Barr didn’t think Trump should be prosecuted for the Cohen illegal contribution case, there’s no telling what he thought of the suspected Egyptian bank donation. Certainly, he was in complete control of DC USAO at the time, if he wanted to shut down an otherwise viable investigation.

We are, as Howell herself said, likely to know much of what she has been doing for the last two years. But her biggest secret is whether Bill Barr prevented DOJ from fully attempting to learn whether Donald Trump was beholden to Egypt or some other foreign country for the entirety of the time he served as President.

Tucker’s Putin Envy

There was a part of the Global Threats Report presented to both the Senate and House Intelligence Committees last week that deserves more attention. In the middle of the section on Russia’s influence operations, the report predicted that Russia will “try to strengthen ties to U.S. persons in the media and politics in hopes of developing vectors for future influence operations.”

It is the judgment of the intelligence community, per the report, that Russia is trying to cultivate “US persons in the media and politics” as part of its foundation for future influence operations.

Russia presents one of the most serious foreign influence threats to the United States, because it uses its intelligence services, proxies, and wide-ranging influence tools to try to divide Western alliances and increase its sway around the world, while attempting to undermine U.S. global standing, sow discord inside the United States, and influence U.S. voters and decisionmaking. Moscow probably will build on these approaches to try to undermine the United States as opportunities arise. Russia and its influence actors are adept at capitalizing on current events in the United States to push Moscow-friendly positions to Western audiences. Russian officials, including Putin himself, and influence actors routinely inject themselves into contentious U.S. issues, even if that causes the Kremlin to take a public stand on U.S. domestic political matters.

  • Moscow views U.S. elections as opportunities for malign influence as part of its larger foreign policy strategy. Moscow has conducted influence operations against U.S. elections for decades, including as recently as the U.S. midterm elections in 2022. It will try to strengthen ties to U.S. persons in the media and politics in hopes of developing vectors for future influence operations.
  • Russia’s influence actors have adapted their efforts to increasingly hide their hand, laundering their preferred messaging through a vast ecosystem of Russian proxy websites, individuals, and organizations that appear to be independent news sources. Moscow seeds original stories or amplifies preexisting popular or divisive discourse using a network of state media, proxy, and social media influence actors and then intensifies that content to further penetrate the Western information environment. These activities can include disseminating false content and amplifying information perceived as beneficial to Russian influence efforts or conspiracy theories. [italicized bold original, underline my emphasis]

This is not new news. Obviously Russia has been cultivating both journalists and politicians in recent years, often by inviting them for big shindigs in Russia, after which, over the course of years, they come to spout more and more Russian propaganda uncritically.

It’s is noteworthy that the IC stuck this detail amid discussions about election interference and Ukraine mobilization, because Russia has had renewed success of late getting entertainers and politicians to magnify inflammatory and often false claims about Ukraine.

The judgement came out the same week that Tucker Carlson (whose Ukraine invasion anniversary special was breathtaking even by his standards of propaganda) provided more details of the time, in summer 2021, he was informed that the NSA had discovered his back channel contacts to Putin.

The story starts when Tucker squeals that he’s envious of the podcasters because they got to go to Russia, but he might be arrested if he went. Throughout the show, his interviewers operate on the assumption that Russia is the threat to Tucker, but he suggests State or FBI is.

Tucker: Now I’m envious.

[snip]

Full Send: But everyone told us not to go obviously, but. We knew we were with good people. So after that, it was all good, but.

Tucker: Oh, I want to go. I’ve never been there!

Full Send: You feel it though, it is real scary. There’s like military checkpoints.

Tucker: Oh yeah!

Full Send: It’s … it’s serious shit.

Full Send 2: Would you have gone with him or no?

Tucker: I can’t go to Russia. I honestly think I would be arrested.

Full Send: Yeah, they get you.

Tucker: Which is outrageous because, I’m a journalist, and I’ve been all over the world. I feel like I’ve been everywhere except Russia. And Russia is a combatant in a war that’s changing the world, and like I should go see it. And I was planning it and then I got stopped by the US government from doing it.

Full Send: Oh, you were gonna go? What were going to do?

Tucker: Interview Putin. Why wouldn’t I?

Full Send: You had it set up? Damn!

Tucker: I was working on it and then they broke into my text messages — the NSA broke into my Signal account, which I didn’t know they could do —

Full Send: Oh so Signal’s not even safe!

Tucker: Signal is not safe. It’s not safe. Signal’s not safe.

Full Send: I know people think WhatsApp’s safe.

Tucker: WhatsApp?!?! WhatsApp is not — you know what’s safe? And ask any mafia Don. Park your car in front of the liquor store. Leave your phone in the vehicle, in your Caprice Classic, and walk out behind the liquor store, in the vacant lot back there with the WINOs, to talk to the person you want to talk to.

Full Send 2: How many times have you done that?

Tucker: Zero. Cause I’m like lazy. I’m like whoa! And I’m — actually I always say to myself, I’m not hiding anything. I don’t have a secret life. I’m pretty upfront. And some people like it and some people don’t. Of course, but, I’m not hiding anything. But I was definitely hiding my plan to go interview Putin, just because it’s an interview. It’s no one’s business.

Full Send 2: So how did that happen? How do you know the NSA broke into your Signal?

Tucker: Because they admitted it.

Full Send: Really?

Tucker: Oh yeah!

Full Send: Can you tell us about it? Like how did you find out?

Tucker: I got a call from somebody in Washington who’s — who would know. Just trust me. So I went up there for another reason. But this person said, you know, you going to come to Washington anytime soon? This was a year and a half ago, and I was like, yeah, actually I’m going to be up in a week. He’s like, meet me Sunday morning. So weird. Like, who does that? Just text me, you know what I mean? Just text me. No. So I go and this person’s like — and this is someone who would know — Um, are you planning a trip to go see Putin? This was the summer before the war started. I was like, how would you know that? I haven’t told anybody that, I mean, anybody. Not my brother, not my wife, nobody. Just because, you know, it’s one of a million things you’re working on, but that was one of them. I want to go interview Putin. Why wouldn’t I want to go interview Putin?

Full Send 2: Of course.

Tucker: I want to interview Xi, I want to interview everybody. Right? That’s kind of my job.

Full Send: We want to get Kim Jong Un on here one day.

Tucker: Of course! Of course! We met him.

Full Send: You did? We gotta talk about that. Holy shit.

Tucker: Yup. Super interesting. But anyway, um, how would you know that? Because NSA pulled your texts with this other person you were texting. How did you know that? And so I immediately, I was intimidated, I’m embarrassed to admit, but I was, I was completely freaked out by it. I called a US Senator, who I know — not that well, but it seems like a trustworthy person, and I told him the story, I just want to tell you this, and then I went on TV on Monday and I’m like this happened. And so they had — Congress asked NSA and NSA’s like, yes we did this, but for good reason. What would be a good reason to read my — you know, what? But the head of NSA, it’s fine, cause everyone’s in on it, Republicans and Democrats are all in on it. And by it I mean the assumption that there’s no privacy whatsoever, that they have a right to know everything you’re saying and thinking,

Full Send: That shit’s scary.

Tucker: And that’s just not a right as far as I’m concerned. By the way, if you have no privacy you have no freedom. [my emphasis]

Parts of Tucker’s commentary provides more detail on the incident than previous reporting did, which I covered here and here. As Jonathan Swan reported, the IC collected communications showing a back channel effort to set up a meeting with Putin.

Tucker Carlson was talking to U.S.-based Kremlin intermediaries about setting up an interview with Vladimir Putin shortly before the Fox News host accused the National Security Agency of spying on him, sources familiar with the conversations tell Axios.

[snip]

The intrigue: Two sources familiar with Carlson’s communications said his two Kremlin intermediaries live in the United States, but the sources could not confirm whether both are American citizens or whether both were on U.S. soil at the time they communicated with Carlson.

  • This is relevant because if one of them was a foreign national and on foreign soil during the communications, the U.S. government wouldn’t necessarily have had to seek approval to monitor their communications.

On Maria Bartiromo’s show in 2021, Tucker pointed to what was undoubtedly reporting done in the wake of his initial story — quite likely Swan’s own story (indeed, Tucker could well be one of Swan’s two sources) — and claimed it was proof the NSA was leaking information about him.

In the Bartiromo appearance, Tucker spoke in terms of a single email arranging an imminent trip to Russia.

In last week’s podcast, in addition to reiterating that Tucker is not trying to hide anything but oh yeah he was trying to hide his back channel to Putin, even from his spouse, Tucker adds two details: After he learned about it, he reached out to a (male) Senator to look into it, and the communications obtained include Signal texts, not just a single email.

In the past, I had suggested that Tucker’s tipster might be a member of Congress — a Gang of Eight member like Devin Nunes or Kevin McCarthy — or someone close to them (like Kash Patel). The fact that Tucker called a Senator in response (then Chair of the Senate Intelligence Committee Marco Rubio would make sense given the details he provides), and not someone he was closer to like Nunes, makes it more likely his initial tipster had a tie to the House. The focus on the Senate response may suggest this came up again in the Global Threats hearing, during the closed session.

The detail that, per Tucker, in addition to the email he sent about arranging a then-imminent trip to Russia, they also got Signal texts is more interesting, but it doesn’t mean he was the target or that they broke into his phone.

It does suggest that there could have been two different tracks going on: the discussion, over email, about a trip to Russia, one his producer knew about, and another more sensitive discussion going on via Signal.

We do know, however, that Tucker hasn’t hidden past interview preparation. Indeed, his outreach to Viktor Orbán was quite overt and gleeful. So his explanations about why he would want to hide preparation for a Putin interview don’t hold up.

Remember: When Tucker sent his now former investigative producer to try to FOIA this information from NSA (via a FOIA that was guaranteed to fail), he asked for 30 months of data, going back to January 1, 2019. That’s more than a single email to set up a meeting with Putin.

Rather than taking this as a tip that the back channels via which he was (at least) trying to set up a meeting with Putin are considered — even by Republican Senators — legitimate intelligence targets, possibly Russian spies, Tucker has instead spun up conspiracy theories. And that has, in turn, led him to suggest he faces a bigger threat from the US State Department than he would from Russian military checkpoints.

Update: On Twitter, MD suggested that Rand Paul may have been the Senator Tucker approached, given that he wrote a letter to General Nakasone. It’s an interesting possibility, especially given Russia’s cultivation of Rand and his father as well as the suggestion that whatever Senator he approached was ultimately satisfied with the explanation.

Conclusion To Series On The Dawn Of Everything

Posts on The Dawn Of Everything: Link

The Dawn Of Everything by David Graeber and David Wengrow has 525 pages of text. I’ve discussed 10 of the 12 chapters in the last 14 months, and it’s time to move on. I’ll conclude this series with a few ideas triggered by the book.

1. The authors show that human societies didn’t follow any particular pattern of change. We didn’t move from foraging to agriculture to industrialization along a single track. We didn’t grow from bands to tribes to clans to small hamlets to towns to cities to nation-states. We didn’t move from one form of social organization to another in any particular order. Instead, the crucial factor is human agency. Agency is the antithesis of the mindlessness of Darwin-style evolution. People make choices. Genes don’t.

2. Greaber and Wengrow are clear about their biases. Among other things they think the current state of society is based on social inequality, and that this is bad. One of the principle themes of the book is laid out as a section heading at p. 111: Why The Real Question Is Not “What Are The Origins Of Social Inequality’ But ‘How Did We Get Stuck?’ They don’t answer the question directly, but it’s likely they think one of the central problems is domination.

In Chapter 10 they say that societies are held together by domination, which can take three forms, sovereignty (control of violence), control of knowledge, and charisma, which operates through virtues approved by the group, such as strength or rhetoric. Each of these can be used to achieve and perpetuate social inequality.

3. The authors think that societies have a shared mental component that links members and separates them from other groups. In ancient societies people shared creation myths or other cosmogonies, rituals, cultic practices, totems, and social practices. We moderns do too. In this post I suggested that

… we Americans share a sort of secular religion based on the founding myths of our country and a weak allegiance to what Jefferson called “Laws of Nature and Nature’s God” in the Declaration of Independence. The latter is a formulation that originally meant Natural Law but I think now includes a science-based mental stance and values based on a vaguely Christian moral sense. The founding myths include our commitment to freedom, as “all men are created equal”; a government of laws, not of men; a form of capitalism; and representative democracy.

By “vaguely Christian moral sense”, I meant something like the Golden Rule, and that this Rule was given to us from something greater than our mortal selves. Each of us has many more beliefs, some fully supported by fact and reason, many less so, and some perfectly arbitrary, such as a preference between forks and chopsticks, or certainty that the end times are upon us.

One important mental component that holds citizens of the US together is a shared commitment to the idea that this is a nation of laws, not of men. We had a general agreement that we would select our leaders, and adhere to the laws and rules they enacted. There’s still some truth there even in these days of Republican treachery.

4. Control of knowledge is a powerful tool. In Chapter 10 the authors describe an ongoing problem in pre-dynastic Egypt, around 3500 BCE: whether the dead require food and drink, and if so, what. The answer turns out to be they need leavened bread and wheat beer. There is no known explanation for this. Skeptics might suggest the priests who gave this answer really liked leavened bread and wheat beer. In any event, this answer required a vast increase in the amount of wheat to satisfy the needs of all of the dead people. That led to vast increases in agriculture, away from the fertile floodplains of the Nile, increased need for irrigation, additional labor, accounting bureaucracies, and debt peonage. The baseless idea of feeding the dead changed the course of human history.

Many of the societies described in the book believed that their gods demand sacrifices of animals, food, or even human beings. We see this among the Aztecs, and in Gen. 4:3 and Gen. 22:2, for example. These ideas don’t ever really disappear. For example, the idea of helping one’s dead ancestors shows up in Chinese use of joss paper.

These ideas seem strange to me, even for the ancients. That’s because they are perfectly abstract. There is no way to verify them, or to justify them other than stories. And yet human beings have always acted on stories, and those actions shape whole societies.

5. At present, it seems to me that our mutual commitment to the rule of law is threatened by a drive to dominate and control knowledge. In most advanced societies knowledge was largely generated and vetted in and through an academic culture. Because of this commitment, no one cared that I read existentialist and surreal texts in college in the 60s, and no one cared that my history class was heavy on criticism of Gilded Age capitalism. Everyone assumed that it was important that as we got older we replace our child’s version of philosophy and of our history with a more adult ideas. Universities were thought to be the training grounds for leadership. Why would you want ignorant leaders, trained on a bunch of Young Adult stories?

But now intellectual pursuits, such fields of study as Critical Race Theory, deconstruction, the history of Reconstruction in the US, and gender studies are the subject of political hostility. For at least the last 50 years private interests have been trying to take control of information. Think of tobacco companies and their scientists lying about their cancer-causing products. Exxon and its scientists concealed the dangers of climate breakdown while fighting changes in energy policy. Someone found a bunch of doctors to attack vaccines. The right-wing media dumps lies into the minds of its audience. Now politicians are reaching directly into the intellectual formation of college students, hoping to hide people and histories they don’t like and that don’t fit the Potemkin World they’ve created.

That Potemkin World is the endpoint sought by the reactionaries who have dumped billions into the project of knowledge control. They’re motivated by their desire to protect and extend their wealth, and defuse any opposition to their control. I see an obvious analogy to the priests of Egypt who divined that the dead needed wheat beer.

Graeber and Wengrow say “As soon as we were human we started doing human things.” P. 82. And apparently we keep doing them even when they make as little sense as feeding the dead with expensive wheat products or risking the future of the earth to make a few bucks.

Jan. 6 seditious conspiracy comes into focus at Proud Boys trial as classified ‘spill’ roils proceedings

From emptywheel: Please help support Brandi’s important coverage with a donation to the site.

The Proud Boys seditious conspiracy trial started this week with prosecutors rolling out meticulous frame-by-frame video footage from Jan. 6 that, for the first time in more than a month of proceedings, painted the clearest picture yet of the extremist’s groups alleged coordinated efforts to stop the U.S. Congress from certifying the 2020 election.

But as soon as presentations of that compelling—and often damning—evidence and testimony had concluded, the already-slow-going trial was abruptly halted by revelations over a “spill” of potentially classified FBI communications inadvertently disclosed to the defense.

The materials first bubbled to the surface when Nick Smith, the defense counsel representing Proud Boy Ethan Nordean, began cross-examination of FBI Special Agent Nicole Miller, a lead case agent on the Proud Boys probe. Nordean is a former chapter leader of the neofascist network who is now facing seditious conspiracy charges alongside the group’s onetime ringleader Henry “Enrique” Tarrio and their self-proclaimed “western chauvinist” cohorts Joseph Biggs, Zachary Rehl, and Dominic Pezzola.

Miller had for two days testified to her painstaking review of police bodycam footage, closed-circuit surveillance video, and other media broadcasts from Jan. 6 as she and assistant U.S. Attorney Erik Kenerson neatly buttoned up some of the last pieces of evidence expected from the prosecution as they edge toward the end of their case-in-chief.

But once Smith began to cross-examine Miller with the aim of impeaching her credibility and potentially striking the gut punches of testimony and evidence she delivered this week, the attorney revealed that the prosecution had, in preparation for trial, turned over an Excel spreadsheet to the defense containing Miller’s communications with fellow FBI agents.

While by itself such production is standard for a criminal trial, that spreadsheet, Smith said, also happened to feature more than 1,000 “hidden” rows of Miller’s internal FBI messages, some related to the case, some not.

Crucially, some of those messages, Smith alleged, indicated that agents had improperly reviewed privileged attorney-client conversations between Nordean’s co-defendant, Zachary Rehl, and Rehl’s former attorney, the recently suspended Jonathan Moseley, while Rehl was in detention. One of the messages appeared to show an FBI agent telling Miller that Rehl, the former president of the Proud Boys Philadelphia chapter, was ready to fight looming charges at trial.

“Don’t freak out Jason and Luke yet,” the agent identified as T.J. Wang wrote to Miller.

“Jason” is believed to be assistant U.S. Attorney Jason McCullough, one of several attorneys working the Proud Boys seditious conspiracy case. “Luke” is believed to be Luke Matthews Jones, another attorney initially assigned to the investigation.

Another message that was sent to Miller and revealed in court read, “You need to go into that CHS [confidential human source] report you just put and edit out that I was present.”

Smith seized too onto a message sent to Miller by another agent assigned to a different case. The other agent recounted a directive that they had received from a higher-up about “destroy[ing] 338 items of evidence.”

Smith’s line of inquiry triggered objections from prosecutors immediately and on Wednesday, presiding U.S. District Judge Timothy Kelly abruptly stopped the cross-examination and dismissed jurors early so the parties could discuss the evidence. Once outside their presence, Kelly went back and forth over the messages’ relevance and scope. Rehl’s defense attorney, Carmen Hernandez, quickly raised the alarm about potential Sixth Amendment violations citing the alleged FBI review of Rehl’s jailhouse communications with his former attorney.

In short order, a chorus of motions for mistrial by the defense rang out.

Kelly was not immediately convinced the communications fell within the narrow scope of Miller’s testimony in court, since most if not all of her testimony revolved around the Proud Boy defendants’ movements on Jan. 6 and their communications. With three months of trial in earnest long underway, Kelly cautioned both parties to slow down and assess the path forward after returning to their “war camps or peace camps” for the night, he said.

By Thursday morning, assistant U.S. attorney Jocelyn Ballantine, who is overseeing the case against the Proud Boys, told Judge Kelly that the prosecution had not fully appreciated the complexity of the inadvertent exposure.

“It appears [some of our] Jencks production may include a spill of classified information,” Ballantine said before requesting the Justice Department receive a single day to complete a classification review of Miller’s materials and claw back any contents for national security purposes before the trial resumed.

Defense attorney Norm Pattis, who represents Joseph Biggs along with defense attorney Dan Hull, was adamant that the government’s oversight should rightfully be to their benefit. Without a court order, Pattis told Judge Kelly, he would not return any documents already in evidence and further, he would use them to vigorously defend his client. At the same time he made these pronouncements however, Pattis also conceded that as far as anyone knows, the messages at issues might be wholly unrelated to the Proud Boys case anyway. That included, he said, the communications about the destruction of evidence.

Nevertheless, Pattis still asked the judge to appoint an independent party or special master to conduct a classification review. His request was matched by Rehl’s attorney Carmen Hernandez though Hernandez insisted that much of the material appeared innocuous to her eye. As Hernandez began to read portions she deemed unclassified aloud in court—prompting all of the color to drain from Judge Kelly’s face—Ballantine stepped in.

Since Miller had already testified as a witness for the government on direct examination, the prosecution was now precluded from speaking to her about the case any further in private. By having Miller testify openly in court, Ballantine argued this would establish how Miller conducted her review without adding further delay to the trial or more overt exposure of sensitive information.

Returning to the stand but outside the view of the jury, Miller testified Thursday that she was ordered by FBI headquarters to go through a collection of her internal communications pulled from the FBI’s in-house messaging program known as Lync. She was to review messages from the period of Jan. 6, 2021, to Nov. 1, 2022, just before the originally anticipated start date of the Proud Boys trial. That final compilation was then to go to prosecutors at the U.S. Attorney’s Office who could pore over it before passing it off to the defense for discovery.

The special agent said she pulled somewhere between 12,000 to 15,000 lines of information. That would make up thousands of rows, but what she remitted to prosecutors ultimately included 25 to 26 rows. The rest of the rows, it would seem, were hidden through what prosecutors initially described as a possible glitch in the spreadsheet but the exact reason was not made clear in court this week. As a result, Ballantine was equally uncertain about whether Miller had conducted the review of only her messages in the dataset or if  Miller had conducted a review of all the messages—including those rows now hotly in the defendant’s possession.

The distinction was key, and Ballantine, unfortunately for the Justice Department, elicited that Miller had not reviewed those messages for classification purposes.

“The FBI needs to conduct that review and this information will allow us to conduct [it]. I understand it would appear to counsel that some of these Lync messages appear not to be classified and that is correct, but the FBI needs to conduct, consistent with its national security obligations, that review,” she said. “I would ask that counsel be instructed by the court not to further review the spreadsheets, and not to send them to anyone else while the FBI conducts a classification review of messages sent by other people in that spreadsheet.”

Judge Kelly agreed, orally issued the order, and left the evidence in the defense’s hands. The matter will be picked up on Monday.

This interruption to the pace of the trial is but the latest in a long series of fits and starts that have pockmarked proceedings from the beginning. The trial was meant to begin last August but openings were delayed by the judge in light of the Jan. 6 committee’s release of its final report and transcripts at the end of last summer. The start date was then moved to December and jury selection alone took almost two weeks as parties questioned a pool of 150 prospects before the group was whittled down to 16 jurors including alternates.

More than a dozen requests were filed by the Proud Boys to change venues and before finally beginning the historic trial, defense counselors Nick Smith and Carmen Hernandez both threatened to withdraw from the case altogether when dissatisfied with some of Judge Kelly’s early evidentiary rulings. Biggs’ attorney Norm Pattis was nearly thrown off the case completely when he was suspended from practicing law for six months after his botched handling of sensitive documents for client Alex Jones in Jones’ Sandy Hook defamation case. Pattis appealed and his suspension was postponed. Given the months of delays up to that point, Kelly allowed Pattis to represent Biggs, recognizing the hardship of bringing a new attorney into the fold at such a late hour. Not helping matters any further was a potential conflict of interest that arose with Biggs’ only other attorney at the time, Dan Hull. Just days before the trial was to finally begin in January, Hull informed the court that he had contacted Proud Boy Jeremy Bertino—who ultimately flipped on Tarrio and pleaded guilty to seditious conspiracy —long before the trial began. Hull had talked to Bertino about possibly representing him. As a result, only Pattis was able to cross Bertino. Roger Roots, the defense attorney for defendant Dominic Pezzola, only signed onto the case a day before opening statements.

Once finally underway, evidence from the prosecution trickled out at a snail’s pace with testimony from key witnesses often stilted by a steady barrage of objections from the defense about the admissibility of evidence including evidence both parties had already agreed to admit pretrial. Crosstalk and bickering among attorneys or with Judge Kelly has often led the judge to call for lengthy sidebars, sometimes forcing him to excuse jurors from the courtroom as matters are resolved. There have been several days where jurors were not admitted inside the courtroom for more than an hour as infighting over evidence or witness testimony was aired out at the top of a trial day.

As of February 28th, there had been no less than a dozen calls for mistrial by the defense.

So common was this practice that last month, with his tone dripping in incredulity, Judge Kelly remarked to attorneys “it wouldn’t be a day in this trial without a mistrial motion.”

Two former Proud Boys who pled guilty and agreed to cooperate with the government, Jeremy Bertino and Matthew Greene, had already testified long before Agent Miller took the stand this week and the classification issue exploded.

They, and in particular, Bertino, were considered star witnesses for the prosecution and it is very likely that their testimony failed to leave the defendants altogether unscathed in the eyes of the jury.

Bertino said after Trump namedropped Proud Boys at the 2020 presidential debates and told them to ‘stand back and stand by,’ the extremist group’s recruitment efforts surged. The Proud Boys and a new world of prospective members were whipped into a frenzy, he said. Proud Boys were regularly hanging on Trump’s every word as he launched one failed legal bid after another to declare the 2020 election results fraudulent. Once the U.S. Supreme Court rejected Trump’s forays, desperation among Proud Boys grew, Bertino said and members and leaders alike, including Tarrio, became singularly focused on the necessity of an “all-out revolution.”

What followed was the creation of the group’s Ministry of Self-Defense, a channel, Bertino said, where members would discuss operations for Jan. 6 in code. Prior to that, Greene, who traveled to D.C. on Jan. 5 with Proud Boy William Pepe—Dominic Pezzola traveled with Greene and Pepe too but rode in another vehicle—told jurors that on the eve of the insurrection, he was added to a chat called “Boots on Ground.”

“I was led to believe it was some sort of coordination group for Proud Boys in D.C. for the 6th,” he said.

Greene revealed that he wasn’t privy to specific plans but was instructed to program handheld radios for any Proud Boys who might want them the night before the attack. And when the moment finally arrived and Greene found himself standing before the first barrier that was breached at the Capitol, he told jurors he thought to himself: “Oh shit, this is it.”

“I personally had an abstract feeling that Proud Boys were about to be a part of something,” Greene said before calling the group the “tip of the spear” on Jan. 6.

But, he added, “I never heard specifically what that could be. But as people moved closer to the Capitol, I was in the moment, putting two and two together and saying [to myself] ‘well, here it is,” Greene testified on Jan. 24.

Before Miller testified, Bertino and Greene’s testimony allowed prosecutors to introduce some of the raw and wildly anti-democratic, pro-authoritarian discourse among Proud Boys. Their testimony also exposed evidence of the group’s reliance on frequent communication by way of Telegram, Parler, or teleconference meetings and they helped demonstrate to jurors how Proud Boys were siloed by leadership status or divvied up on a need-to-know basis.

And underpinning all of this was evidence supporting the government’s core legal theory about the Proud Boy defendants and Jan. 6: They didn’t act alone in order to stop the certification by force, they relied not just on themselves but on what the government has dubbed “the tools of the conspiracy.” 

The theory, in sum, suggests the following: to pull off a stop to the certification and potentially keep Donald Trump in the White House despite his defeat, defendants relied not just on individuals who were part of the alleged conspiracy but they would rely on inciting and rallying people unconnected to the organization, too. Bertino and others, chats in evidence have shown, referred to these potential allies as “normies.”

“Normies,” Bertino told jurors, were anyone who supported Trump or considered themselves “right of center” politically. They were “everyday people,” Bertino testified on Feb. 27, who would get behind Proud Boys because they shared the same beliefs about the “stolen” election and the perilous future America faced.

Early in the morning on Jan. 6, in the “New Ministry of Self Defense” chat as Bertino spoke to two Proud Boys, Aaron Wolkind and John Stewart about the day ahead in Washington, Wolkind said he wanted to see “thousands of normies burn that city to ash today.”

Stewart prayed, “God let it happen” before lamenting that “normiecons have no adrenaline control” and were like a “pack of wild dogs.”

Bertino replied: “Fuck it let them loose.”

Charles Donohoe, who would later plead guilty to conspiracy to obstruct an official proceeding and assaulting police, told Wolkind, Stewart, and Bertino right around the same time in that same chat that he was already “hoofing it” to the Washington Monument with a crew of 15. They weren’t wearing their recognizable Proud Boy black and yellow colors, either, Donohoe said.

Tarrio, prosecutors showed jurors, had instructed them not to days before.

Despite the intimate nature of the testimony delivered by Bertino and Greene, it arguably was not until Kenerson elicited Agent Miller’s testimony this week that the full punch of the prosecution’s “tools” theory was delivered.

With Miller as a guide, for two consecutive days, video footage was shown to jurors, often frame by frame or motion by motion, of the tinder keg that Proud Boys tapped on Jan. 6.

Using aerial surveillance footage from the Capitol, Miller used her finger to circle on a screen shared with jurors precisely where Proud Boys positioned themselves on Jan. 6.

The crowd, standing shoulder to shoulder, is on the precipice of making history whether they know it or not. And there, at the very front of the horde of Trump’s supporters, Miller drew nine circles, each representing multiple individuals, including Proud Boys, grouped together. Four of the nine group circles were situated as close as possible to a police barricade line. The others stood just behind them. The groups were evenly spaced and evenly numbered. It was just about 1 p.m. Then-Vice President Mike Pence was still minutes away from making his announcement that he would not decertify slates unilaterally.

Miller, and other witnesses for the government, including Bertino, have testified that Proud Boys never even bothered to listen to Trump’s speech on the morning of the 6th.

They gathered at predetermined meeting points, like at the Washington Monument, and marched down to the Capitol picking up speed and allies—the ‘tools’ they needed for blunt force—as they went.

Miller reviewed video footage in court this week showing Joseph Biggs, for example, pointing a group of Proud Boys including Donohoe, Gilbert Fonticoba, and Eddie Block, away from the area where Trump was speaking at the Ellipse and toward the Capitol.

“Come up over here and then roll through,” Biggs’ is heard saying in one video clip, Miller testified.

Biggs riled up the crowd as he marched on the Capitol, Miller said, chanting “fuck antifa” or “we love Trump” or “1776.”

Miller showed jurors footage too of the moment when Ryan Samsel, who is not a Proud Boy, approached an already keyed-up Biggs and wrapped his arm around him. Biggs didn’t throw Samsel’s arm off. They would speak briefly and within moments, Samsel, Miller said, could be seen removing his jacket as if to fight police. As barriers first begin to fall, Agent Miller testified that she was able to identify defendant Zachary Rehl screaming “Fuck them! Storm the Capitol!”

The agent testified that it wasn’t until Proud Boys showed up at the Peace Monument, located just in front of the Capitol, that the crowd’s tenor had changed. Footage showed they were “relatively peaceful,” until then, Miller testified.

When Nordean arrived at the Peace Monument, he grabbed a bullhorn and told a gathering crowd: “We represent the spirit of 1776.” He promised, “real men are here,” and discussed Constitutional oaths against enemies foreign and domestic. 

Let us remind those who have forgotten what that means,” Nordean said.

In other footage, members like Daniel “Milkshake” Lyons Scott were spotted meeting with Proud Boys at the Monument before later separating and then rejoining each other at police lines.

“Milkshake” was standing alongside key members of the conspiracy like Charles Donohoe, as the men prepared to storm the Capitol. Never far from them, Miller added, were Dominic Pezzola, Matthew Greene, William Pepe, and others. Seconds after the mob began ascending stairs to the Capitol’s interior, Agent Miller said it was Biggs, Fonticoba, and a handful of others, like Shannon Rusch and Trevor McDonald who joined him.

In one clip shown to the jury, as Proud Boys make hand signals affiliated with the white power movement to each other as they lay siege, Christopher Worrell, a Proud Boy with ties to Roger Stone, appears on screen and shouts: “Yeah! Taking the Capitol!”

Nordean, Miller said, had gathered “tools” of the conspiracy like Paul Rae and Arthur Jackman and others as they advanced past barriers or up the Capitol stairs and balustrades toward the interior.

It was Jackman and another member from the marching group, the FBI agent testified, who used turned-over bike rack barriers as makeshift ladders to help scale the walls. Biggs would scale the “ladder” with Fonticoba and Rae.

When the men reached the upper west plaza, where some of the worst violence would occur, Miller testified that it wouldn’t be long before Pezzola was striding into the same location with a stolen police riot shield in tow. Jurors watched footage frame by frame of Pezzola smashing open a window. When one pane wouldn’t break, he tried the one next to it and successfully “unattached” the window from its frame completely, Miller said.

Pezzola was the fifth or sixth person inside after that. He let other rioters stream through first. Minutes later, Biggs, Rae, and Fonticoba would come through a busted door in the same hallway that Pezzola entered. Jurors watched Pezzola stalk that hallway and as Miller testified,  Pezzola would later appear to hold a radio up to his head to talk to someone before taking off down a hallway to the Capitol crypt.

Rehl, meanwhile, she said, had made his way to the upper west terrace and was joined by Rae and others like Isaiah Giddings, Brian Healion, and Freedom Vy. Tarrio wasn’t on Capitol grounds on Jan. 6 but he was attuned to what was happening at the Capitol anyway.

“I’m enjoying the show,” Tarrio wrote on Parler around 2:35 p.m. “Do what must be done. #WeThePeople.”

Three minutes later, as the surge was in full swing, Tarrio would bark on Parler: “Don’t fucking leave” and “Proud of my boys and my country.”

Tarrio and Bertino were texting privately at the same time, Miller said.

When Bertino, flushed with pride, told Tarrio, “Brother, you know we made this happen,” Tarrio responded with two words: “I know.”

When talking to fellow Proud Boy Chris Cannon over text that afternoon, Tarrio agreed when Cannon asked if the Proud Boys were a militia now.

“Yup,” Tarrio wrote.

“Make no mistake, we did this,” he added.

Cannon then sent a short video to Tarrio in the elders-only Skull and Bones chat.  The video featured, among other things, footage from World War II including marching Nazis and victorious Nazis being saluted by Hitler. There were no objections made by the defense when the video was first played for the jury this week. It was also not the first time jurors would see Proud Boys reference Nazis.

During a chat with Biggs and other Proud Boys days before the Capitol attack, as Tarrio discussed how to avoid detection by wearing colors other than their traditional black and yellow garb, the national leader of the fascist organization seemed to outright tickle himself at one point.

“Did I just Goebbels this thing?” Tarrio said, referencing Joseph Goebbels, the Nazi minister of propaganda.

Defense attorneys claimed this week that the impact of the prosecution sharing the video Tarrio received from Cannon was too burdensome to bear. Smith said it was “designed to poison the well” against the defendants and that this case had “nothing to do with marching Nazis and brownshirts.”

Attorneys for all of the defendants insisted the prosecution unfairly included the clip and it should have been something the defense was alerted to in advance. Calls for mistrial by the defense began to billow from every corner but Judge Kelly denied them all.

“Let’s have a rule going forward that if it involves Nazis, you will tell me in advance,” the judge said.

He would agree to strike the video from the record and later instructed jurors that the footage depicting Nazis was not sent by Tarrio or any other defendant in the case.

Proceedings resume on Monday and the prosecution is expected to bring out just a few more witnesses before the defense takes over. It is expected that Tarrio and Biggs will testify on their own behalf.

 

Proud Boys seditious conspiracy trial enters 32nd day

From emptywheel: Please help support Brandi’s important coverage with a donation to the site.

Hello, I’m Brandi Buchman and I am a reporter covering the aftermath of the attack on the U.S. Capitol on Jan. 6, 2021. I have covered the events of Jan. 6 since their inception and I have covered the Proud Boys seditious conspiracy trial since its start as well as the first Oath Keepers seditious conspiracy trial gavel-to-gavel.

It is the 32nd day (and eighth week) of the Proud Boys seditious conspiracy trial involving ringleader Henry “Enrique” Tarrio and his cohorts Ethan Nordean, Joseph Biggs, Zachary Rehl, and Dominic Pezzola. After a break for jurors on Monday—a lengthy motion hearing was held outside of their presence—they will return on Tuesday to hear more evidence from the prosecution as the historic trial trudges toward its expected end this April.

Monday’s motion hearing focused exclusively on the admissibility of certain evidence presented under a key legal argument advanced by the prosecution known as the “tools” theory. In short, prosecutors argue that roughly two dozen associates and/or members of the Proud Boys were utilized as blunt “tools” by the defendants on Jan. 6 to pull off the plot to forcibly stop the certification of the 2020 election.

It was Tarrio and his fellow chapter leaders, the Justice Department contends, who handpicked the “tools” of the conspiracy, and of those individuals identified, most were not charged alongside Tarrio, Nordean, Biggs, Rehl, or Pezzola. The defense has balked over whether some of the tools were truly members of Proud Boys and has suggested this “catch-all” approach by the prosecution is improper.

Presiding U.S. District Judge Timothy Kelly has for weeks accepted the government’s “tools” theory as viable, so the fight during Monday’s motion hearing largely revolved around the admissibility of specific video footage featuring roughly two-dozen so-called “tools” of the conspiracy.

Here’s a bit of background for the “tools” listed by prosecutors:

William Pepe, a former Proud Boy of New York, was seen near Pezzola in footage from Jan. 6 and he was originally charged in the same indictment. Pepe was also a member of Boots on the Ground, a Proud Boys chat set up specifically for Jan. 6, 2021. He was not, however, a member of the Ministry of Self-Defense chat where operations for the Capitol assault were allegedly hashed out among a core group of Proud Boy leaders including the defendants.

Barton Shively, a former aspiring Proud Boy of Pennsylvania—allegedly—is seen on footage from Jan. 6 where he’s near the Washington Monument on the morning of the 6th. This was a designated meet-up location for the defendants, prosecutors argue. Shivley has already pleaded guilty to assaulting police.

Christopher Worrell, a Proud Boy of Florida who used a chemical spray on officers and was a member of Boots on the Ground chat, is seen in video clips from Jan. 6 where he’s very close to fellow Proud Boys who breached barriers.

Dan “Milkshake” Scott, a Proud Boy of Florida, breached police lines after marching with Proud Boys. Defense attorneys on Monday vehemently denied Scott’s membership with the organization.

Barry Ramey, an alleged Proud Boy of Florida, was in Scott’s proximity on Jan. 6 as they marched on the Capitol. Ramey has been charged with assaulting police with chemical spray and defense attorneys for Tarrio have argued he is not an official member of the extremist group.

Marc Bru, a Proud Boy from Washington state, is seen on video footage leading a group of people toward the Capitol, according to prosecutors.

Trevor McDonald, who entered the Capitol with defendant Joseph Biggs, has been brought forward as a tool of the conspiracy by prosecutors but evidence of his direct connection to the Proud Boys struck Judge Kelly as thin. McDonald came to Washington on Jan. 6 with his father, Shannon Rusch. In video clips, McDonald is seen near Biggs, Nordean, and Rehl as well as other Proud Boys like Gilbert Fonticoba, Arthur Jackman, and Paul Rae.

Ronald Loehrke, an alleged Proud Boy of Washington state, received a text from defendant Ethan Nordean leading up to the Capitol attack where Nordean suggested bringing him to the front lines. Loehrke promised in return that he would bring “bad motherfuckers” to the Capitol.

James Haffner of Washington state appears in Jan. 6 footage wielding chemical irritants, and prosecutors say evidence shows Haffner standing close to Biggs before helping tear apart barricades at the Capitol.

Nicholas Ochs, a Proud Boy chapter leader from Hawaii and onetime elder of the extremist group, made it into the Capitol on Jan. 6 and recorded another Proud Boy, Nicholas DeCarlo, writing “Murder the Media” onto a door. Once inside, prosecutors say Ochs interacted with Nordean.

Gilbert Fonticoba, a member and alleged “captain” of the Proud Boys Ministry of Self Defense group, Fonticoba participated in the Proud Boys Boots on the Ground chat where operations for Jan. 6 were siloed. Prosecutors say Tarrio invited Fonticoba into the Ministry group chat but defense attorneys have denied this connection. Other evidence shows Fonticoba reported his location back to Proud Boy Aaron Wolkind during some of the thickest rioting and after Wolkind told Proud Boys he was “storming the Capitol” several times.

Paul Rae made it inside of the Capitol on Jan. 6 and prosecutors argue they heard Rae on footage telling members to “find” former Speaker of the House Nancy Pelosi.

Arthur Jackman met up with Proud Boys at the Washington Monument on the morning of Jan. 6 and is an alleged member of the group.

Eddie George Jr. of Florida, a member of the Ministry of Self-Defense chat, appeared in a selfie with Biggs and Nordean on Jan. 6 and faces multiple charges including obstruction, disorderly conduct, and civil disorder.

Nate and Kevin Tuck, are a father-son duo from Florida. Kevin Tuck was a police officer and Nate Tuck was a former police officer who resigned in 2020. Kevin Tuck resigned after his arrest in July 2021.

Alan AJ Fisher III was a member of both the Ministry of Self Defense and Boots on the Ground chat who joined Nordean and Joseph Biggs at an AirBnB in D.C. on the eve of the insurrection. Footage shows Fisher at the lower west terrace tunnel archway of the Capitol on Jan. 6, close to where some of the worst violence of the day occurred.

Brian Boele ends up at the lower west terrace tunnel archway and may have been a direct part of the violent push inside the tunnel.

Dion Rajewski ends up at the lower west terrace tunnel archway with Fisher III and Zach Johnson and others.

Zach Johnson, a member of Boots on the Ground chat appeared in a selfie with defendant Biggs, at the lower west tunnel archway. He also appears in video footage from the west plaza where Biggs, Nordean, and others are spotted near him. Also appearing in the video from this time and place are Rae, Boele, Fonticoba, and Fisher.

James Brett IV was at the lower west tunnel archway and was later seen inside of the Capitol.

Other individuals like Robert Gieswein and William Chrestman were initially featured on the government’s list of “tools” of the conspiracy. But on Monday, neither Gieswein nor Chrestman made the cut.

Though he was short on details on Tuesday morning once court was underway, Judge Kelly said he would exclude evidence from Barry Ramey and Barton Shivley.

“The constellation of information we knew about these two people didn’t get over the hump as far as evidence being sufficiently relevant,” Kelly said.

Video evidence identifying Dion Rajewski, Brian Boele, and James Brett will be excluded in part for now but videos showing AJ Fischer and Zach Johnson in this group can be included. Kelly said footage involving AJ Fisher and Zach Johnson can come in because they are seen marching with defendants on the national mall.

To save the jury time this morning, Judge Kelly said he would explain his decisions at length about the “tools” of the conspiracy in writing later.

Trophy Documents: The Entire Point Was to Make FBI Obedient

Those who didn’t follow John Durham’s trials closely undoubtedly missed the parade of scarred FBI personnel whose post-Crossfire Hurricane vulnerability Durham attempted to exploit to support his invented claims of a Clinton conspiracy.

Sure, lots of people wrote about Jim Baker’s inability to provide credible answers about the meeting he had with Michael Sussmann in September 2016. Fewer wrote about the credible case that Sussmann’s attorneys made that a prior Durham-led investigation into Baker — for sharing arguably classified information with a reporter in an attempt to forestall publication of a story — made Baker especially quick to cooperate with Durham in 2020. Fewer wrote about Baker’s description of the stress of Jim Jordan’s congressional witch hunts.

It sucked because the experience itself, sitting in the room being questioned the way that I was questioned, was, as a citizen of the United States, upsetting and appalling, to see members of Congress behaving the way that they were behaving. It was very upsetting to me.

[snip]

It sucked because my friends had been pilloried in public, my friends and colleagues had been pilloried in public, improperly in my view; that we were accused of being traitors and coup plotters. All of this was totally false and wrong.

Such a circus was the kind of thing that might lead someone like Baker to prefer the “order” of a prosecutor chasing conspiracy theories, someone whose memory was seared by the firing of Jim Comey.

[Sean Berkowitz]. And this is a pretty terrible experience as well. Right?

A. It’s more orderly.

Q. (Gestured with hand to ear.)

A. This is more orderly. It’s terrible but orderly.

Q. And you’re doing the best you can. Right, sir?

A. Yes, sir.

Q. But it’s hard to remember events from a long time ago, 1snre sez

A. It depends on what the event is. I remember Jim Comey being fired, for example. That’s a long time ago and I have a clear recollection of that. So it depends on what you’re talking about.

But Baker wasn’t the only one who discussed the years of scrutiny. Counterintelligence Special Agent Ryan Gaynor, who worked in DC on the Russian investigations during 2016, described how in October 2020, after he revealed to Durham’s team that he knew a DNC lawyer had brought in the Alfa Bank tip, Durham’s team told him they were no longer treating him as a witness, but as a subject of the investigation.

A. Yeah. There were two thoughts. The first one was that I felt like I had woefully ill prepared for the meeting, because I didn’t know what the meeting was honestly going to be about with this investigation.

The second thought was that I was in significant peril, and it was very concerning as a DOJ employee to be told that now the Department of Justice is interested in looking at you as a subject instead of a witness.

Sussmann lawyer Michael Bosworth got Gaynor to explain that after he told a story more to Durham’s liking, he was moved back to the status of witness.

During his testimony, Curtis Heide (who played a key role in the George Papadopoulos investigation) explained how the FBI Inspection Division investigation into Crossfire Hurricane Agents, including him, remained pending, 6 years after the events in question. He noted that, three years after the DOJ IG Report, he was still being investigated even though he, “didn’t author any of the affidavits or any of the materials related to the applications in question.”

The same was true in the Danchenko case. Brian Auten, a key intelligence analyst on Crossfire Hurricane, described how, after having met with agents from DOJ IG four times, having done a long report for FBI’s Internal Affairs Division, and having met with the Senate Judiciary Committee — all with no concerns raised about his own conduct — the first time he met with Durham’s team, he was told he was a subject of the investigation. After Auten gave testimony that confirmed Danchenko’s reliability — seriously damaging his case — Durham himself raised investigations that undermined his own witness’ testimony.

Q. Do you recall that there was a reporter that the OIG had written concerning the Carter Page FISAs?

A. Yes.

Q. And how would you characterize that report?

A. The report was quite extensive and it discussed characterizing a number of errors and omissions.

Q. And with respect to the errors and omissions, were they tick-tacky kinds of omissions or were they significant omissions and errors that had been committed?

A. I believe the OIG described them as significant.

Q. And then with respect to the investigation done by the OIG, separate and apart from that, would it be a fair statement that you and your colleagues were under investigation by the inspection division by the FBI?

A. Yes.

Q. And would it be a fair statement that your conduct in connection with that is, you, yourself, based on the investigation done by the inspection division of the FBI, have some issues, correct?

A. I — be a little bit more specific. I’m sorry. I don’t — I have issues?

Q. Isn’t it, in fact, true that you’ve been recommended for suspension as the result of the conduct?

A. It is currently under appeal.

That line of testimony immediately preceded a hilarious failed attempt from Durham to get Auten to agree that George Papadopoulos was simply a young man with no contact to Trump who was only investigated for his suspect Israeli ties, not for his Russian ties. But it was a palpable example of the way that Trump’s minions used criminalizing FBI investigations into Trump as a way to create a makebelieve world that negates real evidence of Trump’s corruption.

About the only two FBI agents who weren’t portrayed as somehow tainted by the events of 2016 in Durham’s two failed prosecutions were two agents who fucked up investigations: Scott Hellman, who correctly told a junior agent that she would face zero repercussions of she botched the Alfa Bank investigation, and Ryan James, an FBI agent who started his career in Connecticut, who nevertheless failed to pull the evidence necessary to test Sergei Millian’s claims.

Durham rewarded the incompetence that served his purpose and attempted to criminalize what he considered the wrong answers or at least to use the threat of adverse consequences to invent a false record exonerating Trump.

And Durham came in after Jim Comey, Peter Strzok, Andrew McCabe, and Bruce Ohr had already been fired, and Lisa Page, with Strzok, deliberately humiliated on a global stage serially. He came in and exploited the uncertain status — the Inspection Division review left pending while Durham worked — of everyone involved. Such efforts didn’t end with the conclusive acquittals debunking Durham’s theories of conspiracy. Since then, Jim Baker has been dragged back through the mud — publicly and in Congress — as part of Twitter Files, Chuck Grassley passed on “whistleblower” complaints about Auten identifying Russian disinformation as such, and Timothy Thibault was publicly berated because some of the same so-called whistleblowers feeding Jim Jordan shit had complained to Chuck Grassley he was discouraging GOP conspiracy theories about Hunter Biden.

It was never just Strzok and McCabe. The entire Republican Party has relentlessly focused on punishing anyone involved in the Trump investigation, using both unofficial and official channels. When Trump promised “retribution” the other day at CPAC, this kind of relentless effort to criminalize any check on Trump’s behavior is what he was talking about.

That kind of background really helps to understand the WaPo story that described Washington Field Office FBI agents quaking at the prospect of searching Donald Trump’s beach resort.

[P]rosecutors learned FBI agents were still loath to conduct a surprise search. They also heard from top FBIofficials that some agents were simply afraid: They worried takingaggressive steps investigatingTrump could blemish or even end their careers, according to somepeople with knowledge of the discussions. One official dubbed it “the hangover of Crossfire Hurricane,” a reference to the FBI investigation of Russia’s interference in the 2016 presidential election and possible connections to the Trump campaign, the people said. As president, Trump repeatedly targeted some FBI officials involved in the Russiacase.

[snip]

FBI agents on the case worried the prosecutors were being overly aggressive. They found it worrisome, too, that Bratt did not seem to think it mattered whether Trump was the official subject of the probe. They feared any of these features might not stand up to scrutiny if an inspector general or congressional committee chose to retrace the investigators’ steps, according to the people.

Since I wrote my piece wondering whether the FBI hesitation gave Trump the chance to steal 47 documents, Strzok himself, Joyce Vance, and Jennifer Rubin have weighed in.

Rubin, I think, adopts the position of someone who hasn’t followed the plight of all the people not named Strzok who were targeted for investigating Donald Trump. She attributes the reluctance to investigate Trump (and the intelligence failures leading up to January 6, which I’ll return to) to Wray.

After a debacle of this magnitude, that sort of passivity should alarm all Americans. Imagine if, after the terrorist attacks of Sept. 11, 2001, the national security community did not evaluate how it missed the telltale signs of an imminent attack. The failure of leadership in the Jan. 6 case is inexcusable. Yet Wray has never been held to account for this delinquency.

[snip]

[O]ne is left wondering why the FBI seems disinclined to stand up to right-wing authoritarian movements and figures. Whatever the reason, the pattern reveals an unmistakable lack of effective leadership. And that in turn raises the question:Why is Wray still there?

It is absolutely the case that Wray did far too little to protect FBI agents in the face of Trump’s attacks. Wray created the opportunity for pro-Trump FBI agents and Durham to criminalize investigating Trump. I think Wray attempted to avoid rocking the boat at all times, which led the FBI to fail in other areas (including the investigation of Brett Kavanaugh). Though I’m also cognizant that if Wray had been fired during the Trump administration, he might have been replaced by someone like Kash Patel, and having a Trump appointee in charge right now may provide cover for the ongoing investigations into Trump.

But you could fire Wray tomorrow and not eliminate the effects of this bureaucratic discipline, the five year process to teach everyone in the FBI that investigating Trump can only lead to career disaster, if not criminal charges.

Also under Wray, though, the Bureau had already increased its focus on domestic terrorism, with key successes both before and after January 6. Steven D’Antuono, the chief voice of reluctance to search Mar-a-Lago, presided over the really troubled but ultimately successful effort to prevent a kidnapping attempt targeting Gretchen Whitmer, a plot that arose out of anti-lockdown protests stoked by Trump (though unusually, D’Antuono let a subordinate take credit for the arrests).

I think the specific failures in advance of January 6 lay elsewhere. Wray has not done enough in the aftermath to understand the FBI’s failures, but FBI has also been overwhelmed with the case load created by the attack. But, as I hope to return to, I think the specific failure in advance of January 6 lies elsewhere.

Whatever the merit in blaming Wray for FBI’s failure to prepare for January 6, there’s a bigger problem with Rubin’s attempt to blame him on the MAL search. Strzok sketched out in great detail something I had seen, too. The dispute about searching Trump’s house wasn’t between the FBI and DOJ. It wasn’t just what Vance and Strzok both describe as a fairly normal dispute between the FBI and DOJ with the former pushing the latter to be more aggressive.

It was between the WFO on one side and DOJ and FBI HQ on the other.

[A] careful reading of the Post’s reporting (insofar as the reporting is complete) reveals this was not so much a conflict between DOJ and the FBI as much as a conflict between DOJ and FBI headquarters, on the one hand, and the management of the FBI’s Washington Field Office, on the other.

Indeed, a key part of the drama surrounding the pre-August search meeting described by the WaPo involved the conflict between FBI General Counsel Jason Jones — whom WaPo makes a point of IDing as a Wray confidant, thereby marking him as Wray’s surrogate in this fight — and WFO Assistant Director Steven D’Antuono.

Jason Jones, the FBI’s general counsel who isconsidered a confidant of FBI Director Christopher A.Wray, agreed the team had sufficient probable cause to justify a searchwarrant.

[snip]

Jones, the FBI’s general counsel, said he planned to recommend to Deputy FBI Director Paul Abbate that the FBI seek a warrant for the search, the people said. D’Antuono replied that he would recommend that they not.

This, then, was partly a fight within FBI, one in which Wray’s surrogate sided with prosecutors.

Strzok makes a compelling argument that this story may have come from pushback necessitated by people at WFO floating bullshit claims, not dissimilar from — Strzok doesn’t say this, but I will — the leak by right wing agents to Devlin Barrett about the Clinton Foundation investigation in advance of the 2016 election, which led Andrew McCabe to respond in a way that ultimately gave Trump the excuse he wanted to fire him.

Indeed, Strzok’s post includes a well-deserved dig on the WaPo’s claim about, “the fact that mistakes in prior probes of Hillary Clinton … had proved damaging to the FBI,” an unsubstantiated claim I also called out.

[E]ven journalists can be imprecise or inaccurate. The Post’s article isn’t, for example, the type of comprehensive accounting you’d get in a report produced by an Inspector General, who can compile the statements of everyone involved and review and compare those statements to the written record in all its various forms.

Strzok right suggests that DOJ IG’s Report disproved WaPo’s claim about the Hillary investigation, but he seems to have forgotten that the DOJ IG Report into McCabe’s response on the Clinton Foundation didn’t fully air the FBI spox’s exculpatory testimony.

All of which is to say that, in the same way that WFO agents have an understandable visceral concern about getting involved in an investigation targeting Trump, people at HQ might have an equally visceral concern about stories seeded to Devlin Barrett alleging internal conflict that might create some flimsy excuse for firing.

But there’s something still unexplained about the WaPo story. Vance notes, as I did, that D’Antuono may have given Trump the opportunity to steal 47 documents.

[T]he delay couldn’t be undone. We still don’t know whether that resulted in the permanent loss of classified material. It did result in a delay in the timeline for making prosecutive decisions, ultimately extending the investigation into the period where Trump announced his 2024 candidacy, leading to the appointment of a special counsel to continue the investigation and determine whether to prosecute.

But Vance still accepts WaPo’s specious claim about timing, the claim that the delay (from June to August) in searching Trump’s resort led the investigation to bump up against a Trump campaign announcement that would surely have happened earlier had Trump not gotten an injunction. There’s nothing to support that temporal argument, and the public record on the injunction (which, again, lasted until almost a month after Jack Smith’s appointment) disproves it.

The timing issue is one of many reasons why I keep thinking about this earlier Devlin Barrett story, one that did bump up against the appointment of a Special Counsel. On November 14, the day before Trump formalized his 2024 run and so four days before the appointment of Jack Smith, Barrett and WaPo’s Mar-a-Lago Trump whisperer, Josh Dawsey, published a story suggesting that maybe Trump shouldn’t be charged because he just stole a bunch of highly classified documents to keep as trophies.

Federal agents and prosecutors have come to believe former president Donald Trump’s motive for allegedly taking and keeping classified documents was largely his ego and a desire to hold on to the materials as trophies or mementos, according to people familiar with the matter.

As part of the investigation, federal authorities reviewed the classified documents that were recovered from Trump’s Mar-a-Lago home and private club, looking to see if the types of information contained in them pointed to any kind of pattern or similarities, according to these people, who spoke on the condition of anonymity to discuss an ongoing investigation.

That review has not found any apparent business advantage to the types of classified information in Trump’s possession, these people said. FBI interviews with witnesses so far, they said, also do not point to any nefarious effort by Trump to leverage, sell or use the government secrets. Instead, the former president seemed motivated by a more basic desire not to give up what he believed was his property, these people said.

[snip]

The analysis of Trump’s likely motive in allegedly keeping the documents is not, strictly speaking, an element of determining whether he or anyone around him committed a crime or should be charged with one. Justice Department policy dictates that prosecutors file criminal charges in cases in which they believe a crime was committed and the evidence is strong enough to lead to a conviction that will hold up on appeal. But as a practical matter, motive is an important part of how prosecutors assess cases and decide whether to file criminal charges.

As I showed, that story, like this one, simply ignored stuff in the public record, including:

  • Trump’s efforts, orchestrated in part by investigation witness Kash Patel, to release documents about the Russian investigation specifically to serve a political objective
  • The report, from multiple outlets, that Jay Bratt told Trump’s lawyers that DOJ believes Trump still has classified documents
  • Details about classified documents interspersed with a Roger Stone grant of clemency and messages — dated after Trump left the White House — from a pollster, a book author, and a religious leader; both sets of interspersed classified documents were found in Trump’s office
  • The way Trump’s legal exposure would expand if people like Boris Epshteyn conspired to help him hoard the documents or others like Molly Michael accessed the classified records

Since then, other details have become clear. Not only was that story written after DOJ told Trump they believed he still had some classified documents, but it was written in the period between the time Trump considered letting the FBI do a consensual search and the time he hired people to do the search for him, a debate inside the Trump camp that parallels the earlier investigative fight between WFO and DOJ. Indeed, when DOJ alerted Trump’s lawyers in October that they believed Trump still had classified documents, that may have reflected WFO winning the debate they had lost before the August search: to let Trump voluntarily comply.

That’s important background to where we are now. Trump’s team has misrepresented to the press how cooperative they have been since. First, Trump’s people misleadingly claimed that Beryl Howell had decided not to hold Trump in contempt (rather than just deferred the decision) and Trump lied to the press for several months, hiding the box with documents marked classified and the additional empty classified folder. Those public lies should only make investigators wonder what Trump continues to hide.

We know Trump blew off the subpoena that WFO agents were sure would work in June, and there’s good reason to believe DOJ finds Trump’s more recent claims of cooperation to be suspect as well.

So let’s go back to that earlier Devlin story. As I noted at the time, I don’t dispute that the most classified documents have the appearance of trophies, but that’s because of the Time Magazine covers they were stored with, not because of any halfway serious scrutiny of Trump’s potential financial goals. Particularly given the presence of 43 empty classified folders in the leatherbound box along with the most sensitive documents, no thorough investigator could rule out Trump already monetizing certain documents, particularly given Trump and Jared Kushner’s financial windfalls from the Saudi government, particularly given the way that Trump’s Bedminster departure coincided with Evan Corcoran’s turnover of classified documents, particularly given that the woman who carted a box including some marked classified around various offices had been in Bedminster with Trump during the summer. I don’t dispute that’s still a likely explanation for some — but in no way all — of the documents, but no competent investigator could have made that conclusion by November 14, when Devlin published the story.

Unless Devlin’s sources — perhaps the same or similar to the sources who know that WFO agents were cowed by the treatment of Crossfire Hurricane agents — were working hard to avoid investigating those potential financial ties.

Unless the timing of the story reflected an attempt to win that dispute, only to be preempted by the appointment of Jack Smith. The earlier dispute could not have been impacted by the appointment of Jack Smith. If there was a later dispute about how to make sure Trump wasn’t still hoarding classified documents, though, it almost certainly was.

Someone decided to leak a story to Devlin Barrett suggesting that investigators had already reached a conclusion about Trump’s motive, even though as the story acknowledged, “even the nonclassified documents” — better described as documents without classification marks that not only hadn’t been reviewed yet, which could have included unmarked classified information — “taken in the search may include relevant evidence.” (Note, these are the same unclassified documents that, the recent story  describes D’Antuono, insanely from an investigative standpoint, scoffing at collecting because, “We are not the presidential records police.”) Devlin’s sources decided to leak that story at a time when DOJ was trying to figure out how to get the remaining documents from Trump, and yet his sources presented a working conclusion that it didn’t matter if DOJ got the remaining documents: it had already been decided, Devlin’s sources told him, that Trump was just a narcissist fighting to keep his trophies from time as President and probably that shouldn’t be prosecuted anyway.

The story of the earlier dispute is alarming because it confirms that WFO agents remain cowed in the face of the prospect of investigating Trump, as some did even six years ago. The later story, though, is alarming because leaks to Devlin have a habit of creating political firestorms that are convenient for Trump. But it is alarming because it suggests even after the August search proved the WFO agents’ efforts to draw premature conclusions wrong, someone still decided to make — and force, by leaking to Devlin Barrett — some premature conclusions in November, an effort that genuinely was thwarted by the appointment of Jack Smith.

Release the Kraken: Fox News’ Revolving Sidney Powell Conspiracy Theory Door

It does Dominion Systems no good, in their defamation lawsuit against Fox News and Fox Corporation, to prove that Sidney Powell was a long-time Fox News commentator. They are suing Fox for defamation based on Fox’ platforming of Sidney Powell after the time the Murdoch outlet had internally recognized her as a bullshit artist, not during the time when she routinely showed up to lie about another topic — Mike Flynn’s innocence.

That explains why that prehistory, the long period when Powell was just another personality on Fox News, doesn’t appear in Dominion’s motion for summary judgement or its response to Fox’s MSJ.

What appears, instead, are two inflammatory claims which — taken together — may be as important as the billion dollar lawsuit and the sordid truth about Fox that Dominion has aired as part of it.

First, as Dominion lays out in response to Fox’s attempt to blame Trump for all the outrageous false claims about Dominion, Fox started it,

Fox went beyond the claims that Rudy Giuliani made in court, and Fox aired Sidney Powell’s false claims before she made those claims in court (which is one reason why, Dominion argues, Fox can’t simply claim they were covering newsworthy lawsuits).

Dominion lays out a timeline showing that Powell didn’t make any of the allegedly defamatory claims again Dominion in court until November 25, after Fox had floated them in 12 of the claimed instances of defamation.

As Giuliani himself told the court in one Pennsylvania lawsuit brought by the campaign, the lawsuit is not a fraud case. See Donald J. Trump for President,Inc.v.Sec’y ofPennsylvania,830 Fed.Appx. 377,382 ( Cir. 2020). Or to quote the headline of a November 23,2020 Wall Street Journal article: “Trump Cries Voter Fraud. In Court, His Lawyers Don’t.” Ex.702. Only Powell’s lawsuits, the earliest of which was filed on November 25 (after she had been disavowed by the Trump campaign), made allegations along the lines of the defamatory statements accused in this case allegations that Fox had been broadcasting for weeks before Powell’slawsuits were filed.9

The facts about the cases Fox focuses on are as follows:

November 7: The Trump campaign files an Arizona election challenge alleging defects in the ballots and poll worker deviation from protocols, not a technological failure of vote tabulation machines. See generally Ex.C1. Dominion is not mentioned.

November 11: The Trump campaign files a challenge to results in Antrim County. The gravamen of the complaint is interference with Republican election observers, disputes about voter eligibility, and ballots being run through tabulating machines multiple times–not mechanical tabulation errors. See Ex.C227-60. The complaint concedes that the Secretary of State found that the Antrim error was a result of the failure of a county clerk to properly update media drives, and does not allege any intentional misconduct by Dominion. See id. 60-62.

November 13: Lin Wood files a Georgia election contest, challenging certain changes in Georgia’s election laws. See Ex.C425-50. The lawsuit was not filed on behalf of the President or his campaign, nor does it make any misconduct allegations against Dominion or even mention Dominion by name.

November 17: Lin Wood files an affidavit in his Georgia lawsuit alleging certain misconduct by Smartmatic (not Dominion). The affidavit was irrelevant to the subject matter of the underlying suit, and was never filed in any case brought by the Trump campaign. Ex.C5.

November 25: More than two weeks after Fox first gave her a platform to promote her conspiracy theories, and days after the campaign expressly disavowed her, Powell files lawsuits in Georgia and Michigan. These lawsuits parrot the lies amplified by Powell and others on Fox. Exs.C8-C9.

December 1& 2: Powell files two more lawsuits in Wisconsin and Arizona–repeating the false allegations against Dominion. Exs.C11-C12. [italics my emphasis]

More importantly, Dominion lays out that Fox had Powell on to float these allegedly defamatory claims before Trump embraced them. Dominion suggests that having Trump embrace them was part of luring Trump back to the network.

It is also belied by the record for at least four reasons :(1) President Trump followed lead, making the same allegations against Dominion only after Fox had made them; (2) Sidney Powell was not on the President’s legal team when she started making the Dominion allegations and was disavowed after being associated with that team for at most 8 days; (3)Powell received some of her information via Fox hosts,who then laundered the lies by hosting her on their shows; and (4) neither Trump nor his campaign ever filed a lawsuit alleging the at-issue statements.

First, Fox’s own recitation of the timeline of Trump tweets establishes that Fox went first, Trump went second. On November 7, 2020, President Trump retweeted a report of Georgia using the same machines as Antrim County. Ex.G6. Notably Trump did not name Dominion, and certainly did not accuse Dominion of participating in an election-rigging conspiracy. The Trump campaign then filed a lawsuit on November 11 regarding the events in Antrim County that merely asserted there had been a “glitch” in the Dominion software. Ex.C2 . It was not until November 12 that Trump first made any allegations about Dominion intentionally switching votes, which he did via a tweet crediting OAN’s reporting. See Ex.G6 p.3. Though this tweet refers to OAN, it demonstrated Trump could be pulled back to Fox–provided the network broadcast what he wanted to hear. Indeed, later that same day, Trump tweeted his approval of Fox hosts attacking Dominion, telling his followers that they “[m]ust see @seanhannity takedown of the horrible, inaccurate and anything but secure Dominion Voting System which is used in States where tens of thousands of votes were stolen from us and given to Biden. Likewise, the great @LouDobbs has a confirming and powerful piece!” Ex.683. From here on out, Trump had Dominion in his sights.

Dominion argues that what got Trump to start attacking Dominion was seeing Fox focus on the claims of fraud; it suggests Fox was airing those claims of fraud to appease Trump.

What changed between November 7 and November 12? Fox entered the fray. Specifically, on November 8 Maria Bartiromo brought Powell onto her show to air the false claim that Dominion machines used an algorithm to calculate the votes that they would need to flip. Ex.A2 p.15. The Fox platform gave Powell the stamp of credibility, and reach, needed to spread the lies about Dominion. And while Trump was widely known to be a voracious consumer of Fox, Bartiromo did not leave anything to chance. [three lines redacted]

These redacted lines suggest that Bartiromo spoke with the Trump campaign directly to highlight these false claims; in the earlier filing, Bartiromo told Powell, “I just spoke to Eric [Trump] & told him you have very imp[ortant] info.” In that same reference, the filing revealed that Bartiromo “also provided information directly to Powell,” suggested that Bartiromo was a go-between between Powell and the campaign.

But that’s not the craziest part.

The crazy part — which is only clear from reading both Dominion’s recent filings — is that Fox got Trump to disavow Sidney Powell.

Remember how this looked in real time. After the embarrassing Four Seasons Total Landscaping press conference, the campaign publicly distanced itself from Powell on November 22.

Here’s the explanation offered by Maggie Haberman at the time.

According to Dominion, however, after Powell came after Tucker Carlson, Raj Shah — who used to work as a spox in Trump’s White House — inquired about her status with Trump. He learned two days before Rudy made a show of publicly ousting her from the campaign that she never worked for the campaign.

Second, Fox ignores what it knew better than the public at the time: Powell was never officially on the Trump campaign’s legal team, having never signed an engagement agreement. Ex.605, Shah 246 :4-12; id. 273:11-20. When Fox was finally motivated to get to the bottom of the relationship between Powell and Trump (which only happened after Powell came after one of Fox’s own, Tucker Carlson), it took Fox but a day or so to get the truth. See, e.g.,infra pp.163-164.

[snip]

Shah believed the Decision Desk got the Arizona call right (see,e.g.,Ex.725);that the November 19,2020,press conference featuring Sidney Powell and Rudy Giuliani was not credible ,including the claims about Dominion (see, e.g., Ex.605 , Shah 214 :21-215 :7); see also Ex.726 ( crazy fucking presser );and that Sidney Powell was generally nuts (Ex.727).

Yet Shah did nothing when on or around November 20,2020, he learned that Sidney Powell never had a retention agreement with Trump or his campaign. This was explosive news. For several weeks Shah’s network had been airing false allegations from Powell, in part, so they say now, because she was the President’s lawyer. But upon learning that she was not the President’s lawyer what did Shah do? Effectively nothing. See Ex.605, Shah 297:18-298:2. [italics my emphasis]

Fox learned that Sidney Powell never had a retention agreement with the Trump campaign, but still covered her, purportedly, based on the claim that what she did for the campaign was newsworthy.

It’s these two comments that are particularly interesting though: Fox brought her on and off the campaign, and had a role in her conspiracy theories.

And while Powell appeared on Fox only four times when she was even arguably part of the President’s team, and six times when Fox was clearly aware that she was not. As important, Fox was instrumental in maneuvering Powell both into the Trump campaign and then out of it.

Third, Fox ignores its own role in developing the conspiracy theories it then aired See Dom. MSJ pp.39-44

These two claims — that Fox “maneuvered Powell … out of” the Trump campaign and that they played a role in developing these conspiracy theories, are discussed in heavily redacted passages of the earlier filing (probably redacted because Fox has claimed it pertains to internal business deliberations).

The first — describing how Fox “maneuvered Powell … out of” the Trump campaign after Tucker came under fire for questioning Powell — consists of almost four full paragraphs introduced with a description that Fox, including Tucker and Raj Shah, “mobilized.”

“We won the battle with Powell. Thank god,” the passage quotes a Tucker text later. Dominion is now explaining that that “battle” pertained to getting Powell ousted from Trump’s orbit.

The second claim — that Fox was the source of some of these conspiracy theories — incorporates the description of how Fox got Powell ousted from the campaign, but also includes redacted passages describing Lou Dobbs’ role in “promoting the narrative,” another making a redacted reference to Hannity, as well as the unredacted reference to Bartiromo chasing an email from Sidney Powell that Powell herself said relied on a “wackadoodle” source. The later filing suggests the earlier filing goes as far as saying that Fox played part in developing the conspiracy theories.

To be sure: Fox’s real-time knowledge that Sidney Powell never had a formal relationship with Trump and Tucker’s [apparent] role in getting her ousted from Trump’s orbit are critically important for Dominion’s case that Fox properties continued to air her conspiracy theories, falsely claiming to do so because they reflected Trump’s strategy, are both crucial pieces of evidence in their case that Fox knew they were allowing Powell to make false claims on their shows.

But they are important for another reason: because Jack Smith is investigating at least one and possibly two (the Sidney Powell investigation that went overt in September 2021) prongs based on claims that the people raising money were knowingly lying.

Fox likely still has no criminal exposure for the campaign finance violations that Smith is investigating (though the report that Rupert gave Jared confidential information on Biden’s ads may give Smith reason to look more closely).

But, as I noted after the last filing, all this material about what Fox was being told by Trump’s team is directly relevant to those suspicions of fraud.

It’s not just that Dominion has laid out damning evidence that Fox knowingly and falsely accused it of fraud. But discovery in this suit appears to have produced abundant evidence that the campaign itself knew it was recycling fraudulent claims Fox was peddling to keep Trump loyal.

Fox may have no more than this civil exposure. But Dominion lays out plenty of evidence that Fox was part of Trump’s suspected fraud on his own voters.

Trump’s “Receptionist of the US” Deletes Her Trip to Russia

When Chamberlain Harris’s name first started getting bandied about as the woman in whose possession additional documents with classified markings were found last year at Mar-a-Lago, her LinkedIn bio described how, in addition to a trip to Spain in summer 2018, she also made a trip to St. Petersburg in Summer 2019, immediately before she took an internship at the White House.

Since then — perhaps today, after the Guardian published a follow-up on the story of those classified documents — the reference to Russia was removed.

In its first story on the documents, Guardian described that Molly Michael, then Trump’s Executive Assistant, ordered the woman in question to make a digital copy of the documents.

Then, at Mar-a-Lago in December, the contractors found a box that mainly contained presidential schedules, in which they found a couple of classified-marked documents to also be present and alerted the legal team to return the materials to the justice department, the sources said.

The exact nature of the classified-marked documents remains unclear, but a person with knowledge of the search likened their sensitivity to schedules for presidential movements – for instance, presidential travel to Afghanistan – that are considered sensitive until they have taken place.

After the Trump legal team turned over the box of schedules, the sources said, they learned that a junior Trump aide – employed by Trump’s Save America political action committee who acted as an assistant in Trump’s political “45 Office” – last year scanned and uploaded the contents of the box to a laptop.

The junior Trump aide, according to what one of the sources said, was apparently instructed to upload the documents by top Trump aide Molly Michael to create a repository of what Trump was doing while in office and was apparently careless in scanning them on to her work laptop.

Today’s update, in addition to identifying the woman as ROTUS — a made-up title that Harris has not yet deleted from her LinkedIn bio — described that the aide in question first had the box at a bungalow at Mar-a-Lago, then brought it to an off-site office, then brought it with her to occupy the desk that Molly Michael once had (in which at least two classified documents likely were found during the August 2022 search).

Known internally as ROTUS, short for Receptionist of the United States, the junior aide initially kept the box at a converted guest bungalow at Mar-a-Lago called the “tennis cottage” after Trump left office, and she soon took it with her to a government-leased office in the Palm Beach area.

The box remained at the government-leased office from where the junior aide worked through most of 2022, explaining why neither Trump’s lawyer who searched Mar-a-Lago in June for any classified-marked papers nor the FBI agents who searched the property in August found the documents.

Around the time that Trump returned to Mar-a-Lago from his Bedminster golf club in New Jersey at the end of the summer, the junior aide was told that she was being relocated to a desk in the anteroom of Trump’s own office at Mar-a-Lago that was previously assigned to top aide Molly Michael.

The junior aide retrieved her work belongings – including the box – from the government-leased office and took them to her new Mar-a-Lago workspace around September. At that time, the justice department’s criminal investigation into Trump’s retention of national security documents was intensifying.

[snip]

But the justice department was not satisfied, and it pressed the Trump legal team to get the contractors to conduct the third known search of Mar-a-Lago in early December – at which point the contractors discovered the box of presidential schedules, some with classified markings.

The Trump legal team alerted the FBI, which sent federal agents down to collect the box and its contents the following day.

A few weeks later, Trump’s lawyers started exploring whether they could get a better understanding of the sensitivity of the small number of schedules marked as classified, for the junior aide had kept sole custody of the box throughout that period.

It was at that point that the junior aide revealed for the first time that she could find out exactly what they were, because Michael – who left the Trump political team at the end of the summer – had told her to scan all of the schedules to her laptop.

Trump’s people are trying to shift the blame to her — but the documents were in Trump’s possession when he was subpoenaed last summer, so the failure to find them still arises from Trump’s failure to do a thorough search of the offices he controlled.

And this woman — whom Trump tried to forestall being subpoenaed in the laptop handover — just gave the FBI reason to look a whole lot more closely at her.

Update: Some have mentioned the report that this got uploaded to the cloud. That’s from this CNN report.

“Wink:” Where Jeff Gerth’s “No There, There” in the Russian Investigation Went

On July 28, 2017, Robert Mueller’s investigators served two warrants on the company (probably Rackspace) that hosted Paul Manafort’s DMP emails to obtain Manafort, Rick Gates, and Konstantin Kilimnik’s company emails.

Mueller obtained several things with that warrant that remain unresolved. Those are just some of the many things about the Russian investigation — the one Jeff Gerth claims had no there, there — that remain unanswered, four years after Mueller closed up shop.

Manafort’s lies about the plan to carve up Ukraine

One thing Mueller obtained with that warrant would have been an email Manafort sent Konstantin Kilimnik on April 11, 2016, “How do we get whole” with Oleg Deripaska, Manafort asked. The email showed that Manafort was using his position as the “free” campaign manager for Donald Trump to fix his legal and financial woes.

Another was an email Kilimnik wrote, but did not send, on December 8, 2016, but which Manafort knew to and did read, a “foldering” technique to prevent interception also used by terrorists. The email referenced a plan to carve up Ukraine that Kilimnik had first pitched to Manafort on August 2, 2016.

Russians at the very top level are in principle not against this plan and will work with the BG to start the process of uniting DNR and LNR into one entity, with security issues resolved (i.e. Russian troops withdrawn, radical criminal elements eliminated). The rest will be done by the BG and his people.

[snip]

All that is required to start the process is a very minor ‘wink’ (or slight push) from DT saying ‘he wants peace in Ukraine and Donbass [sic] back in Ukraine’ and a decision to be a ‘special representative’ and manage this process.

The email — and a text Kilimnik sent around the same time — talked about “recreating old friendship” with Deripaska at an in-person meeting. Less than a month later, Manafort flew to Madrid and met with a different Deripaska associate.

Six years later, we don’t know the fate of Manafort’s efforts to “get whole” with Deripaska, to recreate that old friendship.

It’s something that Manafort promised to tell Mueller’s prosecutors on September 13, 2018, when he entered into a plea agreement that averted a damaging trial during the election season. But it’s something that, Judge Amy Berman Jackson found, Manafort lied to hide from prosecutors in the ensuing weeks. We know that the last thing on Manafort’s schedule before he met with Kilimnik on August 2, 2016 was a meeting with Trump and Rudy Giuliani. We know that during the period when Manafort was lying to hide what happened with this plan to carve up Ukraine, his lawyer was speaking regularly with Trump’s lawyer, Rudy Giuliani. We know that during the period when Rudy Giuliani was seeking campaign assistance from Ukraine, he was consulting with Manafort. We know that Trump tried to coerce Volodymyr Zelenskyy to enter into a quid pro quo on July 25, 2019, but was caught by a whistleblower. We know that Bill Barr went to extraordinary lengths to protect Rudy Giuliani from any consequences for his dalliance with Russian agents in Ukraine.

We know that on December 24, 2020, Donald Trump pardoned Manafort, rewarding him for his lies. Yesterday, a judge in Florida approved a $3 million fine to settle Manafort’s failure to reveal the money he earned from working in Ukraine, money Manafort got to keep as a result of Trump’s pardon.

SDNY alleges that even as Manafort was lying about his plans with Kilimnik in September 2018, a different Deripaska associate was cultivating recently retired FBI Special Agent in Charge Charles McGonigal, someone who could tell him about what DOJ was learning (or not learning) from Manafort. We know that Seth DuCharme, who played a key role in Barr’s efforts to protect Rudy, now represents McGonigal.

We know that after Trump’s efforts to exploit dirt from Ukraine failed and Joe Biden became President, Russia expanded its invasion of Ukraine, trying to achieve by force what it attempted to achieve by coercing Trump’s “free” campaign manager and his personal attorney.

When I wrote the last installment of my series demonstrating the false claims about “Russiagate” made by Jeff Gerth, I wrote a long passage (included below) that showed what Mueller was discovering in August 2017, a period when Gerth falsely claimed prosecutors had determined there was “no there, there” to Trump’s ties to Russia.

There was not only a lot there, where Gerth never bothered to look. In fact, the “there, there” remains unresolved and raw, six years later.

The investment in Michael Cohen

Take the investigation into Michael Cohen. One thing Mueller would discover in August 2017 is that Trump Organization was not fully complying with subpoenas, at least not subpoenas from Congress. As I noted in my piece, Mueller almost certainly obtained an email with an August 1, 2017 warrant that showed Michael Cohen had direct contact with the Kremlin during the campaign. The email also showed, Mueller would learn once Felix Sater and Cohen began to explain this to investigators, that Cohen and Trump were willing to do business with a former GRU officer and sanctioned banks in pursuit of an impossibly lucrative real estate deal in Moscow. The email obtained in August 2017 was proof that Trump was publicly lying about his ongoing pursuit of business in Russia. And for two more years, Trump kept that secret from the American public. That entire time, Russia knew he was lying to the American people. Russia knew, the American public did not.

Mueller got that email by asking Microsoft, not Trump Organization, for the email. But shortly after Mueller did so, Microsoft made it far harder to obtained enterprise emails without notifying Microsoft’s client. There are other questions about missing records — such as a letter Trump sent to then Deputy Prime Minister Sergei Prikhodko — that might have been answered with more records from Trump Organization.

There’s also the matter of the big infusion of money — more than $400,000 over the course of a few months — that Cohen got from a Columbus Nova, in investment fund controlled by Russian oligarch Viktor Vekselberg. Mueller investigated whether the money had some tie to the different Ukrainian peace deal that Felix Sater got Cohen to bring to the White House.

It didn’t. As Cohen explained to Mueller in 2018, he got the money to explain how Trump worked to Andrew Intrater, who claimed to be looking to spend money on an infrastructure project in the US.

The pitch was to assist in Columbus Nova’s infrastructure fund. [redacted] invests in several different areas. At the time, there were discussions of significant foreign investment interest dedicated to U.S. infrastructure.

[snip]

In Cohen’s discussions with [Intrater] Cohen did not provide any non-public information. Cohen was not selling non-public information. Cohen could assist [Intrater] because Cohen understood Trump and what Trump was looking for.

But the payment, while legal, remains dodgy as hell.

Republicans, certainly, don’t want to talk about it. When Mark Meadows accused Cohen of omitting his contracts with foreign companies at his 2019 testimony before the Oversight Committee, Trump’s future Chief of Staff made no mention of Columbus Nova.

Mr. MEADOWS. Mr. Cohen, I’m going to come back to the question I asked before, with regards to your false statement that you submitted to Congress. On here, it was very clear, that it asked for contracts with foreign entities over the last two years. Have you had any foreign contract with foreign entities, whether it’s Novartis or the Korean airline or Kazakhstan BTA Bank? Your testimony earlier said that you had contracts with them. In fact, you went into detail——

Mr. COHEN. I believe it talks about lobbying. I did no lobbying. On top of that they are not government——

Mr. MEADOWS. In your testimony — I’m not asking about lobbying, Mr. Cohen.

Mr. COHEN. They are not government agencies. They are privately and——

Mr. MEADOWS. Do you have—do you have foreign contracts——

Mr. COHEN [continuing]. publicly traded companies.

Nor did Republicans include Nova in the FARA referral they sent to DOJ.

But Viktor Vekselberg was among the oligarchs Treasury would sanction in in 2018, along with Deripaska and Alexandr Torshin, and he was among the first people hit with expanded sanctions last year, after the invasion.

A December 2018 article about those payments to Cohen and the sanctions against Vekselberg was likely the article that Vekselberg associate Vladimir Voronchenko was sharing in 2018, which was cited as proof he knew of the sanctions, in his indictment for maintaining Vekselberg’s US properties in his own name after Vekselberg was sanctioned. Today, the government started the process of seizing Vekselberg’s US properties.

And questions about whether Vekselberg is influencing politics through his cousin, Intrater, have been renewed amid disclosures about Intrater’s big funding for the imposter Congressman George Santos.

“Sort of a spy deal going on”

Then there’s the matter of Julian Assange, whose extradition remains hung up at the final approval stage.

When Candace Owens confronted Trump about why he didn’t pardon Assange last year, he got really defensive, folding his arms. He explained, seemingly referring to Assange and probably referencing the Vault 7 and Vault 8 releases of stolen CIA hacking tools, “in one case, you have sort of a spy deal going on … there were some spying things, and there were some bad things released that really set us back and really hurt us with what they did.”

But Twitter DMs Mueller obtained with the first August 2017 warrant targeting Roger Stone showed that, in the wake of Mike Pompeo’s designation of WikiLeaks as a non-state intelligence service in the wake of that release, Stone and Assange discussed a pardon. On June 4, 2017, Stone said, “I don’t know of any crime you need to be pardoned for.” On June 10, Stone told Assange, “I am doing everything possible to address the issues at the highest level of government.”

Nine days later, on June 19, 2017, Trump ordered Corey Lewandowski to order Jeff Sessions to limit the investigation to prospective meddling from Russian, an order that — had Lewandowski obeyed — would have had the effect of shutting down the entire investigation, including that into Assange’s role in the hack-and-leak.

Texts obtained from Stone much later would show that he and Randy Credico discussed asylum for Assange on October 3, 2016 — before WikiLeaks started releasing the John Podesta emails.

And Credico had set Stone up to discuss the pardon with Margaret Kunstler by November 15, 2016.

Stone claimed to be pursuing a pardon for Assange at least through early 2018. It was only after Mueller asked Trump about such pardon discussions in September 2018 that Don Jr’s close friend Arthur Schwartz told Cassandra Fairbanks the pardon wouldn’t happen.

Those pardon discussions are just one of the things that Stone held over Trump’s head to ensure he’d never do prison time.

Stone kept a notebook of all the conversations he had with Trump during the 2016 election. He may have brought it with him to a meeting he had with Trump in December 2016.

After the win, STONE tried a full court press in order to get a meeting with TRUMP. [redacted] eventually set up a meeting with TRUMP and STONE in early December 2016 on the 26th floor of Trump Tower. TRUMP didn’t want to take the meeting with STONE. TRUMP told BANNON to be in the meeting and that after 5 minutes, if the meeting hadn’t concluded, to throw STONE out. STONE came in with a book he wrote and possibly had a folder and notes. [full sentence redacted] TRUMP didn’t say much to STONE beyond “Thanks, thanks a lot.”. To BANNON, this reinforced STONE [redacted] After five to six minutes, the meeting was over and STONE was out. STONE was [redacted] due to the fact that during the meeting TRUMP just stared.

After Stone was convicted of lying to cover up the real nature of his contacts with Russia during the election, he lobbied for a pardon by claiming, repeatedly and publicly, that prosecutors offered him a deal if he would reveal the content of the phone conversations he had with Trump during the election.

On December 23, 2020, Stone got that pardon. Four days later, Stone and Trump spoke about January 6 at Mar-a-Lago. That same day, also at Mar-a-Lago, Kimberly Guilfoyle, started the planning for Trump to speak (at that point, the plan included a march to the Capitol).

Earlier this month, DOJ included Stone’s contacts with Proud Boy Dan Scott at a January 3 Florida rally in Scott’s statement of offense for attempting to obstruct the January 6 vote certification. It included Stone’s ties to various Oath Keepers as part of the proof DOJ used to prosecute Stewart Rhodes of sedition.

“The boss is aware”

It took an extra week for prosecutors in the Mike Flynn case to get approval for his sentencing memo in early 2020. So senior officials at DOJ had to have approved of the explanation of why Flynn’s lies about calling the Russian Ambassador to undermine Obama’s sanctions on Russia were serious. “Any effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election,” the memo explained, “could have been evidence of links or coordination between the Trump Campaign and Russia.”

From the time that Mueller’s team obtained KT McFarland’s transition device and email on August 25, 2017, they had reason to believe Flynn’s calls with the Russian Ambassador were a group affair, not (as Trump had claimed) simply Flynn’s doing. McFarland’s emails showed that before Flynn called Kislyak, he had received an email from Tom Bossert reporting on what Lisa Monaco told him about Russia’s response to the sanctions, immediately after which he spoke to McFarland from his hotel phone for 11 minutes.

Mueller came pretty close to concluding that was why Flynn intervened with the Russian Ambassador, too. “Some evidence suggests that the President knew about the existence and content of Flynn’s calls when they occurred,” the Mueller Report explained in laying out reasons why Trump might have wanted to fire Jim Comey. “[B]ut the evidence is inconclusive and could not be relied upon to establish the President’s knowledge.” That’s because, after first denying that such calls happened at all, KT McFarland ultimately claimed not to remember telling Trump about the calls and Steve Bannon claimed not to remember discussing it with Flynn.

That was the conclusion Mueller reached in early 2019, a conclusion that already didn’t account for the fact that Flynn called the Russian Ambassador from a hotel phone, not his cell, or that he admitted that he and McFarland had deliberately written a text to cover up the contact. But the following year, in his effort to protect Trump, Bill Barr and other Republicans made available multiple pieces of evidence that make Trump’s knowledge of Flynn’s contacts more clear.

For example, after the House Intelligence Committee transcripts came out in 2020, it became clear that the White House had used Steve Bannon’s two appearances, with the assistance of Devin Nunes, to script certain answers. One of those answers denied continuing to discuss how to end sanctions against Russia after the inauguration. That scripting process happened between the time Flynn pled guilty and the time Bannon first denied remembering knowing of the sanctions discussion. Effectively, the White House scripted Bannon to deny knowledge of those sanction discussions in December 2016.

Then, in September 2020, as part of his efforts to justify overturning the prosecution of Flynn, Barr released the interview report from FBI agent Bill Barnett, who reportedly sent pro Trump texts on his FBI issued phone. It described how, after refusing to take part in that part of the Flynn investigation four different times, he nevertheless, “decided to work at the SCO hoping his perspective would keep them from ‘group think.'” He described being told that “was the only person who believed MCFARLAND was not holding back the information about TRUMP’s knowledge of [the sanction discussions].” He then asked a series of questions that would provide space for a denial: “BARNETT asked questions such as ‘Do you know that as a fact or are you speculating?’ and ‘Did you pass information from TRUMP to FLYNN?'”

Importantly, Barnett claimed it was “astro projection” that Trump directed Flynn’s contacts with the Ambassador.

He said that even after John Ratcliffe declassified the evidence that Mueller could never have used in the investigation, but which proved it wasn’t projection at all: the transcripts of Flynn’s calls with then-Ambassador Kislyak. They reveal that in the call on December 31, 2016, which Kislyak made to tell Flynn that “our conversation was also taken into account in Moscow” when Putin decided not to retaliate against the US for its sanctions, Flynn told Kislyak that “the boss is aware” of a plan to speak the day after Trump would be inaugurated. That would only be possible had Flynn either told Trump directly or had McFarland passed it along.

Once Barr came in, Flynn attempted to unwind all the things he had said to Mueller, directly contradicting multiple sworn statements. Just weeks after DOJ noted the centrality of Flynn’s lies to the question of whether Trump attempted to reverse sanctions just after Russia helped get him elected, Barr, too, joined the process of attempting to reverse the impact of the things Flynn had admitted to under oath. That effort extended to introducing notes with added, incorrect dates that Trump used in an effort to blame Biden for the investigation into Flynn. “We caught you,” Trump claimed to Biden in a prepared debate attack about the investigation that showed how his team first contacted Obama’s team to learn what they knew of the Russian response to sanctions, minutes before they called Russia to undermine those sanctions.

On November 25, Trump pardoned Flynn not just for his lies about the calls to the Russian Ambassador and working for Türkiye, but for any lies he told during the period he was reneging on his plea agreement. That same week, Flynn and Sidney Powell were in South Carolina together plotting ways to undermine Joe Biden’s election. Three weeks later, they would pitch Trump on a plan to seize the voting machines so he could stay in office.

When Bill Barr wrote his corrupt memo claiming there was no evidence that Trump obstructed the Mueller investigation, he was silent about the topic he had admitted, three times, would amount to obstruction: those pardon dangles. Those pardons aren’t just proof that Trump obstructed the investigation, stripping prosecutors of the leverage they might use to get Paul Manafort, Roger Stone, and Mike Flynn to tell the truth. But they’re also some of the most compelling proof that the secrets Stone and Manafort kept would have confirmed the suspicions that Trump coordinated with Russia in an attack on US democracy.

Update, 3/14: Corrected that Mueller closed up shop four years ago, not three. Time flies!

Links

CJR’s Error at Word 18

The Blind Spots of CJR’s “Russiagate” [sic] Narrative

Jeff Gerth’s Undisclosed Dissemination of Russian Intelligence Product

Jeff Gerth Declares No There, Where He Never Checked

“Wink:” Where Jeff Gerth’s “No There, There” in the Russian Investigation Went

My own disclosure statement

An attempted reconstruction of the articles Gerth includes in his inquiry

A list of the questions I sent to CJR


Just days earlier, on July 28, 2017, DOJ had already established probable cause to arrest George Papadopoulos for false statements and obstructing the investigation. His FBI interviews in the days after August 2 would go to the core questions of the campaign’s knowledge and encouragement of Russia’s interference. On August 11, Papadopoulos described, but then backed off certainty about, a memory of Sam Clovis getting upset when Papadopoulos told Clovis “they,” the Russians, have Hillary’s emails. On August 19, Papadopoulos professed to be unable to explain what his own notes planning a September 2016 meeting in London with the “Office of Putin” meant.

The investigation into Paul Manafort, too, was only beginning to take steps that would reveal suspect ties to Russia. Also on July 28, for example, DOJ obtained the first known warrant including conspiracy among the charges under investigation, and the first known warrant listing the June 9 meeting within the scope of the investigation. On August 17, DOJ would show probable cause to obtain emails from Manafort’s business involving ManafortGates, and Konstantin Kilimnik that would (among other things) show damning messages sent between Manafort and Kilimnik using the foldering technique, likely including Manafort’s sustained involvement in a plan to carve up Ukraine that started on August 2, 2016 (which Gerth omits from his description of that meeting).

Similarly, Mueller was still collecting evidence explaining why Flynn might have lied about his calls with Sergey Kislyak. On August 25, Mueller obtained a probable cause warrant to access devices owned by the GSA showing that Flynn had coordinated his calls with other transition officials, including those with Trump at Mar-a-Lago, when he called Kislyak to undermine Obama’s sanctions against Russia.

Plus, Mueller was just beginning to investigate at least two Trump associates that Rosenstein would include in an expanded scope in October 2017. On July 18, Mueller would obtain a probable cause warrant that built off Suspicious Activity Reports submitted to Treasury. That first known warrant targeting Michael Cohen never mentioned the long-debunked allegations about Cohen in the Steele dossier. Instead, the warrant affidavit would cite five deposits in the first five months of 2017 from Viktor Vekselberg’s Renova Group, totaling over $400K, $300K in payments from Korean Aerospace Industries, and almost $200K from Novartis, all of which conflicted with Cohen’s claim that the bank account in question would focus on domestic clients. On August 1, Mueller would obtain a probable cause warrant for Cohen’s Trump Organization emails from Microsoft. Mueller did so using a loophole that Microsoft would sue to close shortly afterwards, a move which likely stymied the investigation into a suspected $10 million donation to Trump, via an Egyptian bank, that kept him in the race in September 2016. That warrant for Trump Organization emails likely obtained Cohen’s January 2016 contact with the Kremlin – the one not turned over, to Congress at least, in response to a subpoena – a contact that Cohen would lie to Congress about four week later.

On August 7, Mueller used a probable cause warrant to obtain Roger Stone’s Twitter content, which revealed a mid-October 2016 exchange with WikiLeaks that disproved the rat-fucker’s public claims that he had never communicated with WikiLeaks during the campaign (a fact that Gerth gets wrong in the less than 1% of his series he dedicates to Stone). It also revealed that the day after the election, WikiLeaks assured Stone via DM that “we are now more free to communicate.” Those communications would, in one week (the subsequent investigation showed), turn into pardon discussions, which provides important background to the June 2017 Twitter DMs Stone had with Julian Assange, obtained with that August warrant, about “doing everything possible to address [Assange’s] issues at the highest level of Government.”

James Comer’s Twitter Hearing Confirmed Donald Trump’s Censorship Attempt and Matt Taibbi’s “Censorship” about It

“When did these guys drink the Kool-Aid, and who served it to them?” the NYT quoted Bob Luskin as saying of John Durham and Bill Barr in last month’s blockbuster, revealing scandalous new details about the Durham investigation.

The answer is clear: both men had pickled in conspiracy theories floated on Fox News, and several specific investigative prongs were laundered through a Mark Meadows House “investigation” and a Lindsey Graham Senate one, to be picked up by Durham as if formally referred.

One of the most alarming disclosures in the NYT blockbuster on the Durham investigation, for example, was that after the Italians provided a tip about Trump’s criminal exposure on a junket that Barr and Durham took together in 2019, someone leaked to the press that a criminal investigation into others, not Trump, had been opened.

The trip to Italy about came after George Papadopoulous aired conspiracy theories — suspicions he explicitly attributed to right wing outlets, not his own personal knowledge — in a House Oversight hearing.

[T]he belief that got Bill Barr to fly to Italy — that Mifsud actually works for Western, not Russian, intelligence — Papadopoulos cited to a Daily Caller article which itself relayed claims Mifsud’s Russian-backed lawyer made he had read the day before.

Q Okay. So, and Mifsud, he presented himself as what? Who did he tell you he was?

A So looking back in my memory of this person, this is a mid-50’s person, describes himself as a former diplomat who is connected to the world, essentially. I remember he was even telling me that, you know, the Vietnamese prime minister is a good friend of mine. I mean, you have to understand this is the type of personality he was portraying himself as.

And, you know, I guess I took the bait because, you know, usually somebody who — at least in Washington, when somebody portrays themselves in a specific way and has credentials to back it, you believe them. But that’s how he portrayed himself. And then I can’t remember exactly the next thing that happened until he decided to introduce me to Putin’s fake niece in London, which we later found out is some sort of student. But I could get into those details of how that all started.

Q And what’s your — just to kind of jump way ahead, what’s your current understanding of who Mifsud is?

A My current understanding?

Q Yeah. A You know, I don’t want to espouse conspiracy theories because, you know, it’s horrifying to really think that they might be true, but just yesterday, there was a report in the Daily Caller from his own lawyer that he was working with the FBI when he approached me. And when he was working me, I guess — I don’t know if that’s a fact, and I’m not saying it’s a fact — I’m just relaying what the Daily Caller reported yesterday, with Chuck Ross, and it stated in a categorical fashion that Stephan Roh, who is Joseph Mifsud’s, I believe his President’s counsel, or PR person, said that Mifsud was never a Russian agent.

In fact, he’s a tremendous friend of western intelligence, which makes sense considering I met him at a western spying school in Rome. And all his interactions — this is just me trying to repeat the report, these are not my words — and when he met with me, he was working as some sort of asset of the FBI. I don’t know if that’s true or not. I’m just reporting what my current understanding is of this individual based on reports from journalists.

[snip]

Q And then at what point did you learn that, you know, he’s not who he said he was?

A Like I said, I don’t have the concrete proof of who this person is. I’m just going with reports. And all I can say is that I believe the day I was, my name was publicly released and Papadopoulos became this person that everyone now knows, Mifsud gave an interview to an Italian newspaper. And in this newspaper, he basically said, I’m not a Russian agent. I’m a Clinton supporter. I’m a Clinton Foundation donor, and that — something along those lines. I mean, don’t quote me exactly, you could look up the article yourself. It is in La Republica. And then all of a sudden, after that, he disappears off the face of the planet, which I always found as odd.

[snip]

I guess the overwhelming evidence, from what I’ve read, just in reports, nothing classified, of course, because I’m not privy to anything like that, and considering his own lawyer is saying it, Stephan Roh, that Mifsud is a western intelligence source. And, I guess, according to reports yesterday, he was working with the FBI

Less than a year after this testimony, Barr and Durham were flying off to Italy together to chase down Papadopoulos’ feverish imaginings.

It’s not that Barr and Durham believed Papadopoulos to be credible; Durham never interviewed the Coffee Boy, not even to assess Sergei Millian’s credibility before indicting Igor Danchenko based on Millian’s hearsay claims. But they nevertheless chased that clear conspiracy theory all the way to Italy together.

The Congressional hearing — a hearing that didn’t even incorporate Papadopolous’ own emails, which would have made it harder for the convicted liar to sustain a number of the claims he made — served as a way to legitimize what were obviously rewarmed frothy rants. The hearing was a messaging vehicle that served to legitimize garbage claims. Had the press called this out as a circus in real time, it might have forestalled some of Barr and Durham’s own stunts.

The same is happening again, with the multiple “investigations” pitched by the new GOP-led House. And much of the press is playing along again, treating the hearings as both-sides disputes about the truth, rather than clear efforts to mainstream conspiracy theories that supplant any hold on the truth.

Consider James Comer’s hearing with former Twitter executives (video, transcript), a hearing called in response to Matt Taibbi’s sloppy rants about files selectively released by Elon Musk, the same kind of conspiracy theories floated during the Russian investigation by right wing outlets and then legitimized by Congressional hearings.

The finding of Comer’s hearing is clear: the witnesses all rebutted any claim that government influence drove the decision to throttle the NYPost report on a laptop that Rudy Giuliani claimed belonged to Hunter Biden. The hearing exposed that the claimed basis for legislative interest in Twitter’s actions was baseless. That should been the headline: James Comer’s conspiracy theory flopped. James Comer exposed, wasting taxpayer dollars.

Worse still for the Congressman from Kentucky, witness testimony revealed just one instance of the federal government affirmatively asking that content be taken down, just one instance of censorship. That demand came from Donald Trump.

As Twitter whistleblower Anika Navaroli explained in response to a Gerry Conolly question, when Chrissy Teigen responded to a Trump  attack on her by calling him a, “pussy ass bitch,” the White House asked Twitter to take the tweet down.

Rep. Gerry Connolly (D-VA):

Okay. On September 8th, 2019 at 11:11 PM Donald Trump heckled two celebrities on Twitter. John Legend and his wife, Chrissy Teigen, and referred to them as the musician, John Legend and his filthy mouthed wife, Ms. Teigen responded to that email at 12:17 AM and according to notes from a conversation with you, Ms. Navaroli’s counsel, your counsel, the White House almost immediately thereafter contacted Twitter to demand the tweet be taken down. Is that accurate?

Anika Collier Navaroli:

Thank you for the question. In my role, I was not responsible for receiving any sort of request from the government. However, what I was privy to was my supervisors letting us know that we had received something along those lines or something of a request. In that particular instance, I do remember hearing that we had a request from the White House to make sure that we evaluated this tweet and that they wanted it to come down because it was a derogatory statement directly towards the President.

Rep. Gerry Connolly (D-VA):

They wanted it to come down. They made that request.

Anika Collier Navaroli:

To my recollection, yes.

Daily Beast was one of the few outlets that reported, accurately, that the hearing showed the opposite of what Republicans claimed: in fact, Trump had been the one to use government power to attempt to silence speech on Twitter. Rolling Stone reported on another pathetic detail from Comer’s hearing, when Byron Donalds got Yoel Roth to explain what was implicit in all of Chairman Comer’s discussions of the scope of the hearing: Republicans were complaining that Twitter took down nonconsensual dick pics of Hunter Biden, some posted as part of a campaign by Steve Bannon associate Guo Wengui.

Comer’s premise was shattered by a “pussy ass bitch” retort and dick pics. That’s the weight of James Comer’s chairmanship. And with it should go the credibility of Taibbi’s consistently shoddy rants.

Five times since then, Taibbi has complained that his own silence about Twitter’s coddling of Trump was exposed in the hearing. In none of those complaints did he issue a correction.

Indeed, in his responses, Taibbi repeated several of his lies, obscuring that those FBI spreadsheets he complained about were part of an FBI effort to protect voting rights or that a request that a CIA colleague get an invite to a publicly listed meeting is some sign of the deep state. Taibbi just keeps repeating claims that have long been exposed as garbage.

Taibbi was exposed as a partisan fraud in the hearing, and that should be one of the takeaways.

Yet much of the rest of the coverage of the hearing was like AP’s, which treated the entire premise as if it were serious, dedicating the first four paragraphs to a (false) claim that this was the first that any of them had admitted throttling the NYP story was a mistake (as the hearing reviewed repeatedly, Roth had already given a deposition on the subject, and while the story quotes Jack Dorsey, it doesn’t mention that he has testified to Congress as well). Nowhere in the AP story does it reveal that Comer’s entire premise was debunked by the hearing. It’s not until paragraphs 18 and 19 that AP mentions that the Twitter files presented no evidence for Comer’s claim.

The issue was also reignited recently after Musk took over Twitter as CEO and began to release a slew of company information to independent journalists, what he has called the “Twitter Files.”

The documents and data largely show internal debates among employees over the decision to temporarily censor links to the Hunter Biden story. The tweet threads lacked substantial evidence of a targeted influence campaign from Democrats or the FBI, which has denied any involvement in Twitter’s decision-making.

Nowhere did AP reveal that Donald Trump was the only one guilty of the crime that Comer wants to pursue. Nowhere did AP reveal other instances where Twitter coddled Trump, as when they rewrote their content moderation standards on attacks on immigrants, which previously had banned the use of the term, “Go back to where you came from,” to retroactively excuse their approval of a Trump attack on AOC and others.

Worse still, AP was silent about the degree to which members like Clay Higgins started baselessly calling for the arrest of witnesses not accused, much less credibly, of a crime.

In other words, AP let James Comer dictate the terms of their story even after the premise of it had been debunked.

That’s not journalism.

And there’s one more reason why the press needs to treat these hearings not as a both-sides affair but as an effort to flip truth upside-down.

While neither have said this outright, both Comer’s hearing and the first hearing of Jim Jordan’s insurrection protection committee attacked the nation’s ability to push back against disinformation, including, but not limited to, Russian disinformation.

And as Roth explained in the Twitter hearing, for example, Republican attacks on Twitter were an attack on efforts that came out of a bipartisan response to Russia’s interference in the 2016 election.

Shontel Brown:

Mr. Roth, in a recent interview you stated, and I quote, beginning in 2017, every platform Twitter included, started to invest really heavily in building out an election integrity function. So I ask, were those investments driven in part by bipartisan concerns raised by Congress and the US government after the Russian influence operation in the 2016 presidential election?

Yoel Roth:

Thank you for the question. Yes. Those concerns were fundamentally bipartisan. The Senate’s investigation of Russian active measures was a bipartisan effort. The report was bipartisan, and I think we all share concerns with what Russia is doing to meddle in our elections.

This is what both hearings explicitly sought to roll back, those bipartisan efforts to protect American democracy.

Comer engaged in his own disinformation as part of the process. He falsely claimed that a letter from 50 former spooks said “Hunter Biden’s laptop was Russian disinformation,” rather than that it bore the hallmarks of disinformation. Jim Jordan and HPSCI Chair Mike Turner are now ratcheting up threats against those spooks for speech they engaged in as private citizens, precisely the thing that Jordan purports to be fighting.

In Jordan’s insurrection protection hearing, he presented three witnesses purporting to talk about the weaponization of government. One, Tulsi Gabbard, presented as evidence of weaponizing government that private citizen Hillary Clinton claimed she was being “groomed” by Russia, something that had nothing to do with weaponizing government and everything to do with the free speech Tulsi purported to be defending. The two others, Chuck Grassley and Ron Johnson, complained that the FBI warned them their own investigation into private citizen Hunter Biden parroted an organized Russian campaign.

Taken together, these efforts are fairly unashamedly complaining that private entities — whether Twitter, Hillary, or former spooks — are exercizing their own right to speak up against Russian disinformation. That is, all three efforts use government resources against those speaking up against Russia.

And against the background of the Durham investigation — which investigated Hillary’s campaign because of the way she responded to being victimized by a Russian attack — this effort continues a GOP-led effort to criminalize opposition to Russian disinformation.

There’s no reason, journalistically, to treat this as a serious pursuit. Particularly not given the abundant evidence that these efforts are premised on false claims and easily debunked propaganda, and are an attempt to legitimize that propaganda to serve as the basis for criminal investigations.

If James Comer and Jim Jordan want to squander their majority by building hearings and investigations around lies, the press should call them on that, not reward it. If they don’t, we’re headed down an increasingly ugly cycle.

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