The Virgin Birth of Sidney Powell’s Fraud Fund

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On the list of things those whinging about Merrick Garland seem to have missed is this Daily Beast story reporting that a grand jury is investigating Sidney Powell’s grift.

For months, a federal investigation running out of Washington, D.C., has been demanding documents and asking potential witnesses questions about Powell, according to three people familiar with the matter. Similarly, a separate investigation into Powell’s anti-democratic activities took place in the Sunshine State earlier this year—and has already produced results, and punished Powell and her far-right group.

The federal probe, which has not been previously reported, is examining the finances of Defending the Republic, an organization founded by Powell to fund her “Kraken” lawsuits to overturn the 2020 election, the sources said. According to two of the people familiar with the matter, a grand jury was empaneled, and subpoenas and documents requests have gone out to multiple individuals as recently as September.

The story is most amusing because it airs the entertaining feud between Powell, Lin Wood, Patrick Byrne, and the Flynns. The story airs the claims of those feuding with Powell who say, at a time this is under criminal investigation, that they were uninvolved with the grift.

Powell created Defending the Republic with great fanfare in December 2020 and listed a who’s who of pro-Trump election conspiracy world on its incorporation paperwork. The group’s board originally included former Trump national security adviser Mike Flynn, his brother Joe, and QAnon enthusiast Lin Wood, a fellow Trump-connected lawyer who recently started feuding with Powell.Attorneys for Defending the Republic claim that Wood was mistakenly listedas a board member and subsequently removed from registration filings.

Overstock.com founder Patrick Byrne, who briefly served as Defending the Republic’s CEO, says he had his own concerns about the group’s finances.

In a phone call with Wood that Wood surreptitiously recorded, Byrne claimed that Byrne, Michael Flynn, and Flynn’s brother Joseph Flynn quit the group in April after Powell refused to allow an audit of Defending the Republic’s accounts.

“I gave her a laundry list of things she had to clean up and told her she had to get an auditor,” Byrne told Wood on the call.

[snip]

While working as Defending the Republic’s CEO, Byrne said he became concerned that Powell was using the money for herself and may have potentially violated the law in the process. Byrne said he had determined that he faced no legal liability himself, but had been tempted to “drop a dime on” Powell and alert law enforcement.

“Sidney’s just running this as a scam,” Byrne told Wood.

The Daily Beast story on the criminal investigation into Powell then turns to some details laid out in the Dominion lawsuit against the Kraken lawyer. Powell had her Defending the Republic site up and running on November 23, before she incorporated it on December 1, 2020; and she advertised it falsely as a 501(c)(3), donations to which are tax deductible, rather than a 501(c)(4), which are not.

Defendant Defending the Republic, Inc. (“Powell’s fundraising website”) is the corporate form that was belatedly incorporated to solicit “millions of dollars” online at https://defendingtherepublic.org/, a website created shortly after the 2020 election. The separate corporate entity for Powell’s fundraising website was not created until December 1, 2020, after Powell had appeared on television to solicit donations to the website and after the website began representing to potential donors that it was a 501(c)(4) organization.8

18. On or before January 7, 2021, defendingtherepublic.org began representing to potential donors that it is a “501c3 (Status Pending) Non-Profit.”9

19. Unlike contributions to 501(c)(3) organizations, contributions to 501(c)(4) organizations are not tax deductible.

20. As of January 7, 2021, Defending the Republic, Inc. did not appear in a search of 501(c)(3) organizations or 501(c)(4) organizations on the IRS website.10

8 Sidney Powell talks about her allegations regarding the computerized voting systems on election night, Washington Examiner (Nov. 20, 2020), available at, https://www.washingtonexaminer.com/videos/sidney-powell-talks-about-her-allegationsregarding-the-computerized-voting-systems-on-election-night (last visited Jan. 4, 2021) (Ex. 5); Sidney Powell on Lou Dobbs Tonight on 11/30/20, YouTube (Nov. 30, 2020), available at, https://www.youtube.com/watch?v=4uMr-TRZNCw (last visited Jan. 4, 2021) (Ex. 6); Defending the Republic (Nov. 23, 2020), available at, https://web.archive.org/web/20201123034128/https://defendingtherepublic.org/ (Ex. 7).

9 Defending the Republic Contact Page, available at, https://defendingtherepublic.org/?page_id=15 (last visited Jan. 7, 2021).

10 Compare November 23, 2020 capture of https://defendingtherepublic.org/ (Ex. 7) with IRS Tax Exempt Organization Search, available at, https://apps.irs.gov/app/eos/allSearch (Ex. 8).

Daily Beast presents this as further evidence supporting claims from Byrne (who should not be trusted either) that this money was going to support Powell, not sowing conspiracy theories.

But I’m interested in it for a different reason: the way in which Trump named Powell as part of his team, then cut her off, and then pardoned her client and co-grifter, Mike Flynn. Only after that did she formally register the grift.

I wonder whether some smart lawyer grew concerned that Sidney Powell was claiming to represent the President even while she was representing someone asking for a pardon.

On November 15, Trump explicitly named Powell as part of his team. On November 20, Powell appeared at Rudy the Dripper’s press conference. On November 22, Rudy and Jenna Ellis made a show of cutting ties with her.

Sidney Powell is practice law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.

According to Maggie Haberman, either he didn’t like her appearance and/or advisors convinced Trump to separate himself from her nutjobbery. Three days later, November 25, Trump pardoned Powell’s client. The next day, after days of promising to Bring the Kraken, Powell finally started releasing her epically batshit suits. Trump has promoted them.

Powell

Indeed, it even appears some Administration lawyers are still associated with Powell’s efforts.

I’m not sure I understand whether there would be a conflict between Powell representing Trump (for free, inevitably, as all lawyers do), making desperate efforts to overturn the election at the same time she was trying to ensure her client did no prison time. If that’s a conflict, it may still exist anyway given Powell’s admission to Judge Sullivan that she had repeatedly discussed Flynn with Trump’s campaign lawyer, Jenna Ellis. The fact that DOJ packaged up altered documents to support a Trump attack on Biden may make those ties more important anyway (or lead to more details about them becoming public).

But if Powell’s involvement made Pat Cipollone and/or Bill Barr — who presumably share the challenging task of helping Trump write pardons that don’t backfire — squeamish, it might explain the timing.

In other words, one of the things that may be of interest to this grand jury is why Sidney Powell started raising money before she had the legal vehicle to do so.

But that would also focus some attention on the fact that Sidney Powell started raising money to help sowing Trump’s conspiracy theories before Trump had pardoned her client (after she told Trump, in the summer, not to do so, yet, something she made clear in a hearing on September 29).

Sidney Powell started raising funds to support her efforts to undermine the election by November 23. On November 25, Trump gave her a thing of value — a pardon for her client. Only 5 days later did Powell make such fundraising legal.

It was always the case that Flynn’s pardon was wrapped up in propaganda to get elected. As I’ve noted, Trump used the alteration Bill Barr’s DOJ made to Peter Strzok’s notes, along with Powell’s false claims about it, to launch a prepared debate attack on Joe Biden.

But now the details of how Powell took overt steps to help Trump try to overthrow the election before Trump gave her something in value are before a grand jury.

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Liar’s Poker: The Complexity of Julian Assange’s Extradition

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There’s a remarkable passage in the High Court ruling granting the US appeal to extradite Julian Assange. It basically judged that the key medical expert who determined that Assange would be at risk of suicide if he were extradited, Michael Kopelman, had deliberately not told the truth in his first report on Assange about his family ties to Stella Morris and their two kids, and had not used available means to correct his falsehood afterwards.

We do not accept that Professor Kopelman was confronted with a dilemma of such difficulty as has been claimed. No reason has been put forward why, if it was felt that concern for Ms Moris’ safety made it necessary to conceal her identity, he could not simply have reported all relevant facts but indicated that he did not think it right to name her. That, indeed, is what Mr Assange’s solicitor seems to have expected him to do: her statement says that she canvassed with Professor Kopelman whether the identification of Ms Moris as Mr Assange’s partner could be deferred, and the report served, without detriment to or qualification of its conclusions or their basis. Thus she was not proposing that the report should contain anything misleading, only that for the time being Ms Moris should not be named.

Nor has any reason been given why an application could not have been made to the court pursuant to rule 19.9 of the Criminal Procedure Rules which enables material to be withheld in appropriate circumstances. But in any event, even making every allowance for his being placed in a difficult situation, we cannot agree with the judge’s view that Professor Kopelman did not fail in his professional duty. As the judge found, he made at least two statements which were misleading; and we see no escape from the inference that he did so deliberately, having decided to obscure certain facts in order to avoid mentioning the obviously-relevant facts of Ms Moris’ recent and continuing relationship and of the children whom she had by Mr Assange. At the conclusion of his first report, and in accordance with rule 19.4 of the Criminal Procedure Rules, he signed a declaration in the form required by paragraph 19B.1 of the Criminal Practice Direction. In this, he stated amongst other things –

“(vii) I have exercised reasonable skill and care in order to be accurate and complete in preparing this report.

(viii) I have endeavoured to include in my report those matters, of which I have knowledge or of which I have been made aware, that might adversely affect the validity of my opinion. I have clearly stated any qualifications to my opinion. …

(x) I will notify those instructing me immediately and confirm in writing if for any reason my existing report requires any correction or qualification.”

In our view, Professor Kopelman plainly did not comply with those statements, because in his first report he chose not to state what he knew of the relationship between Mr Assange and Ms Moris when opining on the effects of Mr Assange’s “solitary confinement” in the Embassy and the risk of suicide; and subsequently he failed to correct his report or to make clear his earlier knowledge of the relationship. We regret to say that declaration (viii) was simply untrue. His second report did nothing to correct the misleading impressions created by the first. On the contrary, it maintained his silence about his knowledge at the time of the first report.

With all respect to the judge, we cannot agree with her implicit finding that Professor Kopelman’s failings could be excused or overlooked merely because his conduct could be viewed as “an understandable human response”. Many people mislead courts for reasons which might be understandable but that does not excuse the behaviour and it is incompatible with the obligations of an expert witness to do so. Nor was it relevant to the judge’s assessment of his evidence that she had learned of Mr Assange’s relationship with Ms Moris before she read the medical evidence: it was no thanks to Professor Kopelman that she had done so.

There were, therefore, substantial reasons for the judge to question the impartiality and reliability of Professor Kopelman’s opinion. With respect to the judge, we would have expected to see a rather fuller analysis than she gave of her reasons for deciding that she could accept his evidence not least because it was central to the success of Mr Assange on the single ground which led to his discharge.

The question for this court, however, is whether she was entitled to accept his evidence. Mr Lewis confirmed that the USA did not submit to the judge that the professor’s evidence was inadmissible and should be excluded but rather that it should be given little weight, particularly where it was not supported by other expert evidence or contemporary medical records. In the end the argument before the judge devolved to one of weight. It is highly unusual for the court to be considering an expert witness whom a judge has found to have given misleading evidence but whose evidence has nonetheless been accepted. [my emphasis]

Because the US did not argue that his testimony was, as a result, inadmissible, but instead argued his testimony should be given little weight, the High Court ruled they were unable to second guess Vanessa Baraitser’s ruling, which relied heavily on Kopelman’s opinion. For that reason, the High Court rejected US’ two bases for appeal tied to Kopelman’s opinion.

Nevertheless, the High Court accepted that US assurances that Assange would not be subjected to solitary confinement unless he does something new to merit it were sufficient to grant the extradition request.

Ground 2: Having decided that the threshold for discharge under section 91 was met, the judge ought to have notified the USA of her provisional view to afford it the opportunity of offering assurances to the court;

[snip]

Ground 5: The USA has now provided the United Kingdom with a package of assurances which are responsive to the judge’s specific findings in this case. In particular, the US has provided assurances that Mr Assange will not be subject to SAMs or imprisoned at ADX (unless he were to do something subsequent to the offering of these assurances that meets the tests for the imposition of SAMs or designation to ADX). The USA has also provided an assurance that they will consent to Mr Assange being transferred to Australia to serve any custodial sentence imposed on him if he is convicted.

[snip]

The first and fourth assurances wholly exclude the possibility of Mr Assange being made subject to SAMs, or detained at the ADX, either pretrial or after conviction, unless, after entry of the assurances, he commits any future act which renders him liable to such conditions of detention. It is difficult to see why extradition should be refused on the basis that Mr Assange might in future act in a way which exposes him to conditions he is anxious to avoid.

The ultimate effect is that, unless Assange succeeds in his own appeal of this or the underlying decision, then Priti Patel will soon face the decision of whether or not to extradite him.

These two issues go to the dubious credibility of both sides. The High Court ruled that Kopelman did not give unvarnished expert opinion (he was in no way the only one of WikiLeaks’ experts to do so), but found that could not, at this point, affect the legal analysis. And it found that US assurances that US jails would treat Assange humanely were sufficient, even though I believe there is a high likelihood that Assange will do something that ends up getting  him put in some form of isolation.

WikiLeaks has lied systematically throughout this extradition process — about why Assange was charged when he was, about what he was charged with, about how strong the case against him is, about what a Yahoo article actually said. I have described how a very close Assange associate ordered me, in advance of the first extradition hearing, to stop doing factual reporting on Joshua Schulte’s case because it would undermine the story about journalism WikiLeaks wanted to tell, which is one way I’m absolutely certain the lying is intentional. They have affirmatively told a story that was most useful to their propaganda effort, one they knew to be false.

It’s bad enough that WikiLeaks has chosen to lie over and over in Assange’s defense.

But out of a combination of sloppiness and willful ethical failures, press organizations and journalists have replicated those lies, claiming to do so in the name of “journalism.” In effect, press NGOs and journalists have spent the last two years stating that the lying and hacking that WikiLeaks does is what they do — a claim that I fear will backfire in the future. You can’t defend journalism by lying, but that is what Assange has induced journalists and their advocates to do, the world over.

That said, the US is little more credible. There’s scant reason to credit US assurances on jail and prison conditions. That’s true — and would be true for all international extradition cases — because our jails and prisons are shamefully inhumane. But it’s also true because a national security defendant like Assange would have little leeway before triggering more severe restrictions.

This is an example where neither side should be credited.

But that doesn’t change the danger. The way in which DOJ has applied the Espionage Act poses a grave threat to journalism.

17 of the 18 charges against Assange criminalize things that journalists also do: soliciting and publishing classified information.

The 18th charge is a hacking conspiracy, one that extends from efforts to hack multiple targets in 2010, including a WikiLeaks dissident, through the Stratfor hack, includes WikiLeaks’ efforts to exploit their role in helping Edward Snowden flee to Russia, right up to WikiLeaks’ efforts to recruit CIA SysAdmins like Joshua Schulte to hack the CIA, though the indictment stops short of WikiLeaks’ publication of those hacked files. There is nothing controversial about the CFAA charge — and, indeed, people who support privacy should be outraged about some of this (and this is not the only surveillance of private citizens I’ve heard about). A lot of people have been duped to cheerlead really invasive hacking and spying, if done by WikiLeaks, in the name of journalism.

The hacking charge parallels the Espionage charges, which is central to underlying extradition ruling. Judge Baraitser used the way these efforts worked in parallel to distinguish Assange from journalists.

[Baraitser] distinguished what Assange does from what journalists do because, as alleged in the indictment and in actual fact, hacking is such a central part of what Assange does. It’s not clear she would have gotten to this ruling without the language included in the superseding indictment (a superseding indictment which, again, virtually all Assange boosters either willfully ignore or are genuinely ignorant exists). But as it happened, she relied heavily on the language in the superseding indictment and very clearly distinguished what Assange does from what journalists do.

Of particular interest (because this is the language in the indictment that I believe sets up adding Vault 7 to the indictment), Baraitser accepted the US government’s description of Assange recruiting people to hack.

Mr. Assange, it is alleged, had been engaged in recruiting others to obtain information for him for some time. For example, in August 2009 he spoke to an audience of hackers at a “Hacking at Random” conference and told them that unless they were a serving member of the US military they would have no legal liability for stealing classified information and giving it to Wikileaks. At the same conference he told the audience that there was a small vulnerability within the US Congress document distribution system stating, “this is what any one of you would find if you were actually looking”. In October 2009 also to an audience of hackers at the “Hack in the Box Security Conference” he told the audience, “I was a famous teenage hacker in Australia, and I’ve been reading generals’ emails since I was 17” and referred to the Wikileaks list of “flags” that it wanted captured. After Ms. Manning made her disclosures to him he continued to encourage people to take information. For example, in December 2013 he attended a Chaos computer club conference and told the audience to join the CIA in order to steal information stating “I’m not saying don’t join the CIA; no, go and join the CIA. Go in there, go into the ballpark and get the ball and bring it out”.

Again, it’s not just that Assange solicited people to share classified information with him (which journalists do), but that he also explicitly encourages people to hack to get it.

She further used European privacy protections to distinguish Assange’s bulk publication of the identities of US and Coalition (therefore, also UK) informants from journalism.

She distinguished Assange’s publication online (in bulk, though that distinction is less clear and not one of great comfort to someone who also publishes online) from traditional journalism.

More importantly, Baraitser talked about the balancing involved in Article 10 (particularly with regards to the right of private life).

The defence submits that, by disclosing Ms. Manning’s materials, Mr. Assange was acting within the parameters of responsible journalism. The difficulty with this argument is that it vests in Mr. Assange the right to make the decision to sacrifice the safety of these few individuals, knowing nothing of their circumstances or the dangers they faced, in the name of free speech. In the modern digital age, vast amounts of information can be indiscriminately disclosed to a global audience, almost instantly, by anyone with access to a computer and an internet connection. Unlike the traditional press, those who choose to use the internet to disclose sensitive information in this way are not bound by a professional code or ethical journalistic duty or practice. Those who post information on the internet have no obligation to act responsibly or to exercise judgment in their decisions. In the modern era, where “dumps” of vast amounts of data onto the internet can be carried out by almost anyone, it is difficult to see how a concept of “responsible journalism” can sensibly be applied.

[comparison with other outlets and their condemnation of him]

The law already constrains in various ways what may be published in order to avoid damage to private interests. For example, the High Court recently awarded damages against the Associated Newspaper Ltd, after the MailOnline website published an article , reporting on the arrest of the claimant in the aftermath of the Manchester Arena bombing, and disclosing details capable of leading to his identification (Alaedeen Sicri v Associated Newspapers Limited, [2020] EWHC 3541 (QB)). Free speech does not comprise a ‘trump card’ even where matters of serious public concern are disclosed (see Stoll above), and it does not provide an unfettered right for some, like Mr. Assange, to decide the fate of others, on the basis of their partially informed assessment of the risks.

This was not necessarily a national security stance. Rather, in language that would apply equally to Assange’s indiscriminate publication of the DNC and Podesta emails (as well as the publication of the Turkish and Saudi emails), Baraitser argued that Assange’s publication in bulk was not protected because it did not and could not properly weigh the risk to others.

That’s scant comfort for the way Assange’s prosecution could be used against actual journalists, though, for several reasons. First, the Espionage Act charges still criminalize actions that journalists do, including the publication of classified information. Plus, the US First Amendment protects publication, not journalists, and so the distinction Baraitser made works less well in the US. And the US has none of the privacy protections that Baraitser used to distinguish his indiscriminate publication of informant identities (though it should).

In other words, unless the charges — or the way they’re presented — change between now and trial, ultimately the application of them to Assange would be a dangerous precedent given US law.

They may well change. The US government may have plans to make an argument that — even key press defenders have said — would make the Espionage Act charges more palatable: by, in effect, declaring Assange a spy. That’s one of the reasons I find the sealed ex parte filing submitted in the Joshua Schulte case on August 4 of such interest, because it seems so reactive to what is going on in the Assange extradition.

To understand why I think this is a possibility, it’s important to understand key details about the timeline leading up to Assange’s charges, details that WikiLeaks has worked very hard to obscure:

  • As CNN reported in a 2017 piece that Julian Assange’s expert professed to be unable to find with Google, “The US view of WikiLeaks and Assange began to change after investigators found what they believe was proof that WikiLeaks played an active role in helping Edward Snowden, a former NSA analyst, disclose a massive cache of classified documents.” Snowden’s own book gave significant reason to believe this went well beyond simply fleeing to Russia. In any case, once Assange helped Snowden flee, WikiLeaks had eliminated the “NYTimes problem” DOJ faced if they prosecuted Assange for things real news outlets also do, because whatever else journalists do to protect their own sources, they don’t help the intelligence officers of one country flee to a hostile country.
  • Just before Obama left office, the review of WikiLeaks’ role in the Russian election operation changed the view of the Obama Administration. It’s impossible to know whether that would have led Obama to charge Assange if he had more time. But there’s reason to believe that developments people like to blame on Trump — like increased surveillance of Assange — were set in motion before Trump came in.
  • The 2017 release of hacked CIA tools — the publication that led Mike Pompeo to call WikiLeaks a hostile non-state intelligence agency and to consider and in some cases implement more onerous steps against Assange — not only involved the same actions currently charged for the Manning leaks (including the apparently selective publication of CIA officer identities), but it also involved efforts to extort the US government and even the President’s son. Additionally, the concern about WikiLeaks’ treatment of the CIA leak was not just or even primarily about the files that got released, but the files that WikiLeaks was hoarding; that’s what the government was really trying to understand when they conducted some of the more aggressive spying on WikiLeaks associates: what WikiLeaks was doing with the CIA’s source code, the vast majority of which is still unaccounted for.
  • In addition to the Vault 7 release, after Roger Stone almost got Trump to shut down the entire Russian investigation in June 2017, later in 2017 DOJ started investigating Assange’s role in the 2016 operation, an investigation that at least by 2018 encompassed the question of whether he was an Agent of Russia. Particularly about these topics, Assange repeatedly foregrounded Russian-favored storylines during his extradition, rather than the truth.
  • The surveillance that ratcheted up starting in summer 2017 and especially in December 2017 reportedly bore fruit. That month, according to even WikiLeaks-friendly sources speaking to Yahoo, Russia tried to exfiltrate Assange. This is a core detail of the Yahoo story that WikiLeaks has otherwise embraced, one that likely affects everything that came later. Julian Assange was not charged in 2016 after he helped Russia tamper in the US election. He was not charged in April 2017 after the Vault 7 release. He was charged the day the Russians tried to exfiltrate him. The Espionage Act charges that pose such a threat to journalism only came in May 2019, at least 8 months after DOJ started investigating whether Assange was a Russian Agent based on his 2016 conduct and two years after they significantly ramped up surveillance of him. The second superseding indictment that Assange boosters like to ignore includes conduct that extends through 2015 and incorporates multiple hacking conspiracies (in a single count) and his actions with regards to Edward Snowden. None of that changes the danger the Espionage Act charges pose to journalism. But it means they post-date the time when Russia came to fetch Assange.

In 2020, as part of a presumptively cynical attempt to coerce Jeremy Hammond to testify against Assange in a grand jury, prosecutors on this case asserted, as fact, that Assange is a Russian spy.

I don’t know whether that’s true or not — or whether the government would ever share its evidence to make the case, much less prove that he was a Russian spy during all the current charged acts going back to 2010. I know of plenty of circumstantial evidence going back even before 2009 that makes it plausible (here’s a compendium of some, but not all, of that evidence I know of). If that were proven, it would suggest Assange is — and may have been since he convinced Chelsea Manning to keep stealing documents, some of which she didn’t personally work with — a spy, using a classic technique of recruiting people using one motive to serve a very different one. It’d be a brilliant way to convince a lot of people to ruin their lives if that were true.

I’m not going to persuade the boosters nor, probably, is anything the US government would be willing to say in unclassified form. But I invite Assange boosters to consider whether they would continue their own activism for him if they were convinced of that fact. (There’s absolutely a case to be made for doing so, particularly for non-Americans.) More importantly, I invite journalists and journalism NGOs, particularly the ones who have been telling partial truths, lies of omissions, or magnifying brazen falsehoods, to consider what that would mean for their profession, if after spending two years proclaiming that what Assange does is what journalists do it were revealed that Assange was not what the deliberate lies WikiLeaks is telling proclaim him to be.

I’d like to protect journalism. That requires opposing the Espionage Act charges against Assange for obtaining classified information and publishing it. But it also requires telling the truth about Julian Assange.

What today’s High Court judgment confirms is that neither side can be trusted.

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Bennie Thompson Will Need to Bill FBI for the Affidavits He’s Writing for Them

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Before Mark Meadows decided to renege on his partial cooperation with the January 6 Committee, according to a letter Chairman Bennie Thompson wrote his lawyer, George Terwilliger, Meadows had already turned over the following:

  • A number of emails sent from Meadows’ personal email account, as well as a privilege log withholding “several hundred” documents from his email account citing Executive, Attorney-Client, or other privileges. Those emails include:
    • A November 7, 2020 email discussing the appointment of alternate slates of electors as part of a “direct and collateral attack” after the election
    • A January 5, 2021 email about a 38-page PowerPoint briefing entitled, “Election Fraud, Foreign Interference, & Options for 6 JAN” that was to be shared “on the hill”
    • A January 5, 2021 email about having the National Guard on standby
  • Some text messages Meadows retained before he got rid of his personal phone while a criminal investigation was pending, as well as a privilege log invoking Executive, Attorney-Client, and other privileges withholding over 1,000 texts. The texts turned over include:
    • A November 6, 2020 text with a Member of Congress about appointing alternate electors as part of a plan that the Member acknowledged would be “highly controversial” about which, Meadows said, “I love it”
    • A January 2021 text message with an organizer of the January 6 rally at the Ellipse
    • Text messages about the need for the former President to issue a public statement that could have stopped the January 6th attack on the Capitol

According to Thompson, having turned over some fairly damning stuff, Meadows reneged on cooperating for two reasons: First, because the Committee intended to force him to invoke individualized privilege claims in response to questions. And perhaps even moreso, because the Committee filed a subpoena with Meadows’ cell phone carrier for “call data records.”

Indeed, a lawsuit Meadows filed after negotiations broke down yesterday is particularly concerned about the subpoena to Verizon, which he describes this way:

The Verizon subpoena, issued by the Select Committee on November 22, 2021, instructs Verizon to produce subscriber information and cell phone data associated with Mr. Meadows’s personal cell phone number. The subscriber information requested includes subscriber names and contact information, authorized users, time of service provided, account changes, associated IP addresses, and other metadata. The cell phone data requested could include all calls, text messages, and other records of communications associated with that phone number. This data can be used for historic cell site analysis. The Verizon subpoena requested all Mr. Meadows’ personal cell phone data for four months: from October 1, 2020 and January 31, 2021.

Meadows says that, given his provision of texts and a privilege log, the only thing that Verizon subpoena would show is his IP logins.

The Verizon subpoena seeks Mr. Meadows’ cell phone metadata, despite the fact that he has already provided the Select Committee with his responsive text messages, emails, and the metadata attached thereto.

The only additional information that could be gleaned by the Verizon subpoena is either privileged or concerns Mr. Meadows’ internet protocol and data-connection detail records.

It’s only true that the Verizon subpoena would show nothing other than what Meadows provided if Meadows included all his communications, either handed over or in the privilege log. But if he deliberately left stuff out, the subpoena would make that clear.

Meadows goes on at length in his lawsuit about how subpoenas from the January 6 Committee are invalid and how their refusal to accept a former President’s invocation of Executive Privilege for things his Chief of Staff wrote about in a book and on his personal cell phone.

So, as a result of that, Chairman Thompson and Vice Chair Liz Cheney have announced, they’re still going to go ahead and refer Meadows to DOJ for criminal contempt.

I’m going to hazard a guess and say that DOJ will not charge Meadows for contempt. But it’s not for the reason you think.

It’s because, first of all, DOJ has just gotten a record of enough suspicious behavior that they will use it (if they haven’t already) to get the very same call records Meadows is desperate to withhold from Congress. DOJ only needs to show relevance to their investigation to obtain those records, and Verizon will and has been, for other subjects of the January 6 investigation, gag the request to protect the ongoing investigation.

And by the time the Committee and Congress approve of a full report supporting contempt — Steve Bannon’s report was 26 pages — DOJ would have analyzed those call records to see which other January 6 suspects Meadows was in contact with, undoubtedly one of the things he was attempting to hide with his partial compliance and the replacement of his phone during a criminal investigation. And that would provide some evidence to support probable cause warrants for the content Thompson has just explained is available at Verizon and Google. The materials Meadows did turn over — particularly any gaps not covered by Meadows’ privilege logs — would provide further basis to support probable cause warrants. The apparent fact that Meadows was conducting official business on his phone and his Gmail account — but his emails!!! — would be further basis for probable cause. The likelihood, raised by Thompson, that Meadows failed to turn over records to the National Archives that he is now claiming to be covered by Executive Privilege, in violation of the Presidential Records Act, would be further basis for probable cause. And the circumstances of Meadows’ book publication — including any failures to undergo a full prepublication review, something that Trump attempted to prosecute John Bolton for — would be more.

Meadows’ actions thus far have provided a good deal of evidence that DOJ could use to obtain probable cause warrants for his phone and Gmail content, as well as (if they were prepared to do an overt search) the backed up material they know he retained from his old phone. They would have a privilege log for a filter team (though DOJ would be better served by asking a Special Master to check those privilege claims, because they’re probably bogus). And since Biden has already waived privilege over anything covered by the Committee request, DOJ would not have to worry about getting a separate Executive Privilege waiver for any content they obtained.

Thompson and Cheney may well refer Meadows for contempt. But by the time that happens, what Thompson has already made public will give DOJ plenty to kickstart an investigation into why Meadows is so obviously covering up some of his actions relating to January 6.

Rinse, repeat. The obstruction of John Eastman and Jeffrey Clark will likewise go some way to giving DOJ what they need to advance their investigation (though with Clark, DOJ may already have that from the DOJ IG Report). Similarly, once Ali Alexander finishes telling lies that DOJ has already debunked, it will provide DOJ ample cause (on top of what might be probable cause of wire fraud) to advance the investigation into him.

The collective wail from Meadows and Eastman that Congress might get their call records only makes it more likely that DOJ will get those very same call records, for which they need show only relevance. And Bennie Thompson’s transparency about that certainly makes FBI’s job easier.

Because it’s interesting, I’m going to include the list of things (per the lawsuit) that the January 6 Committee asserts could in no way be privileged.

  1. Messaging to or from the White House, Trump reelection campaign, party officials, and others about purported fraud, irregularities, or malfeasance in the November 2020 election. This includes, but is not limited to, Mr. Trump’s and others frequent use of the “Stop the Steal” slogan, even after lawsuits, investigations, public reporting, discussions with agency heads, and internally created documents revealed that there had not been widespread election fraud
  2. White House officials’ understanding of purported election-related fraud, irregularities, or malfeasance in the November 2020 election.
  3. Efforts to pressure federal agencies, including the Department of Justice, to take actions to challenge the results of the presidential election, advance allegations of voter fraud, interfere with Congress’s count of the Electoral College vote, or otherwise overturn President Biden’s certified victory. This includes, but is not limited to, Mr. Trump’s and others’ efforts to use the Department of Justice to investigate alleged election-related conduct, file lawsuits, propose that state legislatures take election-related actions, or replace senior leadership. It also includes similar efforts at other agencies such as the Department of Homeland Security, the Department of Defense, and, among others, the Cybersecurity and Infrastructure Security Agency.
  4. Efforts to pressure state and local officials and entities, including state attorneys general, state legislators, and state legislatures, to take actions to challenge the results of the presidential election, advance unsubstantiated allegations of voter fraud, interfere with Congress’s count of the Electoral College vote, de-certify state election results, appoint alternate slates of electors, or otherwise overturn President Biden’s certified victory. This includes, but is not limited to, an Oval Office meeting with legislators from Michigan, as well as a January 2, 2021 call with, among others, state officials, members of Congress, Mr. Trump, and Mr. Meadows.
  5. Theories and strategies regarding Congress and the Vice President’s (as President of the Senate) roles and responsibilities when counting the Electoral College vote. This includes, but is not limited to, the theories and/or understandings of John Eastman, Mark Martin, former Vice President Pence, and others.
  6. Efforts to pressure former Vice President Pence, members of his staff, and members of Congress to delay or prevent certification of the Electoral College vote. This includes, but is not limited to, meetings between, or including, the former Vice President, Mr. Trump, aides, John Eastman, members of Congress, and others.
  7. Campaign-related activities, including efforts to count, not count, or audit votes, as well as discussions about election-related matters with state and local officials. This includes, but is not limited to, Mr. Meadows’ travel to Georgia to observe vote counting, as well as his or Mr. Trump’s communications with officials and employees in the Georgia Secretary of State’s Office. This also includes similar activities related to state and local officials in Michigan, Wisconsin, Nevada, Arizona, and Pennsylvania.
  8. Meetings or other communications involving people who did not work for the United States government. This includes, but is not limited to, an Oval Office meeting on December 18, at which Mr. Trump, Michael Flynn, Patrick Byrne, and others discussed campaign-related steps that Mr. Trump purportedly could take to change the outcome of the November 2020 election and remain in office for a second term, such as seizing voting machines, litigating, and appointing a special counsel. It also includes communications with organizers of the January 6 rally like Amy Kremer of Women for America First.
  9. Communications and meetings with members of Congress about the November 2020 election, purported election fraud, actual or proposed election-related litigation, and election-related rallies and/or protests. This includes, but is not limited to, a December 21, 2021 meeting involving Mr. Trump, members of his legal team, and members of the House and Senate, during which attendees discussed objecting to the November 2020 election’s certified electoral college votes as part of an apparent fight “against mounting evidence of voter fraud.”
  10. Efforts by federal officials, including White House staff, Mr. Trump, the Trump reelection campaign, and members of Congress to plan or organize rallies and/or protests in Washington, D.C. related to the election, including, but not limited to, the January 6 rally on the Ellipse.
  11. Advance knowledge of, and any preparations for, the possibility of violence during election-related rallies and/or protests in Washington, D.C.
  12. Events in the days leading up to, and including, January 6. This includes, but is not limited to, campaign-related planning and activities at the Willard Hotel, planning and preparation for Mr. Trump’s speech at the Ellipse, Mr. Trump and other White House officials’ actions during and after the attack on the U.S. Capitol, and contact with members of Congress, law enforcement, the Department of Defense, and other federal agencies to address or respond to the attack.
  13. The possibility of invoking martial law, the Insurrection Act, or the 25th Amendment based on election-related issues or the events in the days leading up to, and including, January 6.
  14. The preservation or destruction of any information relating to the facts, circumstances, and causes relating to the attack of January 6th, including any such information that may have been stored, generated, or destroyed on personal electronic devices.
  15. Documents and information, including the location of such documents and information, that are responsive to the Select Committee’s subpoena. This includes, but is not limited to, information stored on electronic devices that Mr. Meadows uses and has used.
  16. Topics about which Mr. Meadows has already spoken publicly. This includes, but is not limited to, Mr. Meadows’ February 11, 2021, appearance on the Ingraham Angle show to discuss the January 6 attack on the U.S. Capitol, Mr. Trump’s reactions to the attack, and the National Guard.
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DOJ Already Debunked the Lies Ali Alexander Is about to Tell Congress

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For all the whinging about the pace of the various investigations into January 6, DOJ’s investigation has already gotten further into the Roger Stone side of the investigation than the Mueller investigation had by the time Stone testified to the House Intelligence Committee on September 26, 2017. At that point, almost fourteen months into the investigation into which of Trump’s rat-fuckers were coordinating with Russia, Mueller had obtained warrants targeting just Stone’s Twitter and Hotmail accounts.

As Stone acolyte Ali Alexander testifies before the January 6 Committee today, by comparison, just 11 months into the investigation, DOJ is already more than 100 days past the arrest of one of the men Stone and Alexander worked closely with on sowing insurrection, Owen Shroyer.

That makes the feat Ali Alexander is going to try to pull off when he testifies today to the January 6 Commission that much more fraught than what Stone tried four years ago. That’s because DOJ has already debunked some of the lies he plans to tell Congress.

In his prepared statement, which the NYT obtained, Alexander (who was originally subpoenaed because of the way he used covers to obtain multiple permits around the Capitol and incited violence in advance, neither of which he addresses in his statement) claims that he was attempting to de-escalate the riot after it started.

There are a number of videos of my associates and me arriving at the Capitol on January 6 after the violence had begun but in the early stages of the lawbreaking. In those videos, our group can be seen working with police to try to end the violence and lawbreaking. We can be seen yelling and screaming at people to STOP trying to enter the Capitol and STOP violent lawbreaking in general.

I believe those videos have been provided to the committee. If they have not, I will be happy to share them.

While I was actively trying to de-escalate events at the Capitol and end the violence and lawlessness, it’s important to note that certain people were nowhere to be found, including Amy Kremer, Kylie Kremer, and Katrina Pierson; essentially, the Women for America First leadership of the Ellipse Rally that was originally titled the “March for Trump” in their National Park Service permit application. Press reports suggest they may have had their feet up drinking donor-funded champagne in a War Room in the Willard. I don’t know where they were. But they weren’t working with police trying to de-escalate the chaos like I was.

It is my belief there may not have been a problem had that same leadership at the Ellipse event not intentionally removed instructions from the program that were supposed to be included to provide clarity on exactly where to go following the Ellipse event. When I protested the removal of those instructions, I was barred from participating as an organizer at the Ellipse event that preceded the Capitol riot. Ultimately, I was a VIP guest at the Ellipse event.

As a result, civil authority collapsed before the Ellipse Rally was over, before I arrived, and before my event was scheduled to begin.

To clarify: My permitted event at Lot 8 never took place. The “One NationUnderGod”event that Stop the Steal was a part of did not start the chaos. The chaos was well underway before our event was scheduled to begin.

We never held our event. We weren’t allowed to. [bold my emphasis, underline Alexander’s]

When Shroyer attempted to make this very same argument in a motion to dismiss in October, he at least included one (but not the most damning) video along with his argument. Here, having received a subpoena asking for such items, Alexander vaguely waves at videos he assumes the Committee has already received.

As the government’s response to Shroyer’s motion laid out, as Shroyer and Jones and Alexander led mobs to the Capitol even after “civil authority” had, according to Alexander, already “collapsed,” the InfoWars personalities were further riling up the mob.

After hearing that people may have breached the Capitol, [Shroyer], [Alex Jones],  and others began leading this large crowd down Pennsylvania Avenue toward the Capitol Building.4 The defendant is encircled in red below with a megaphone, at the front of the crowd.

En route, [Shroyer] continued shouting to the crowd walking behind and around him through his megaphone: “The traitors and communists that have betrayed us know we’re coming. We’re coming for all you commie traitors and communists that have stabbed us in the back. You’ve stabbed us in the back one too many times!” He continued, “We will not accept the fake election of that child-molesting Joe Biden, that Chinese Communist agent Joe Biden, we know where he belongs and it’s not the White House!” The defendant then led chants of “Stop the steal!” and “1776!”—an apparent reference to the “first” American Revolution and a renewed need to overthrow the government.

4 See Dkt. 1 at 4 n.5 (citing https://banned.video/watch?id=5ff634c2f23a18318ceb19f1 (last accessed on November 12, 2021)); see also Dkt. 1 at 6 n.8 (citing https://banned.video/watch?id=5 ff6148af23a18318ce99233 (last accessed on November 12, 2021)). [yellow circle marking Alexander added]

Then Jones, Shroyer, and Alexander gave a speech inside the restricted area of the Capitol (but not at one of the areas for which Alexander had a permit).

After the Joint Session got underway at 1:00 p.m., Shroyer entered the Capitol Grounds. He first positioned himself with others on the west side of the Capitol Building, within both the restricted area on January 6 and the broader Capitol Grounds boundaries on the defendant’s DPA map seen above. There, he stood on stacks of chairs and other equipment with [Jones] and led a crowd of hundreds of individuals on the Capitol grounds in chants of “USA! USA! USA!”6 [Shroyer] is encircled in red below on the Capitol grounds soon after leading these chants with a megaphone.

[yellow circle marking Alexander added]

The government doesn’t note it, but January 6 trespasser Stacie Getsinger did on Facebook: while at that non-permitted spot, Jones promised the mob that if they followed him to the East side of the Capitol, they’d get to hear Trump speak again.

Only after promising the mob they’d get to hear Trump did Jones’ handlers attempt to get sanction to go to the East side of the building by promising to de-escalate the riot that they had intentionally led more people to. As the government interprets the video that Shroyer himself provided, when Jones’ bodyguard offered to help de-escalate, the cop pointed northeast, which happens to be where Alexander had a permit and a stage already set up, at the “Lot 8” that Alexander claims they weren’t permitted to use.

INDIVIDUAL: I’m with [Jones], man. I’m telling you right now, he just tried to deescalate this stuff. If we can talk to someone and get him up there, we can get them to back off.

OFFICER: Take it over to the east, the east front’s the problem now. *Pointing east.*

INDIVIDUAL: This is the problem? *Pointing east.*

OFFICER: East front is the problem now.

INDIVIDUAL: Ok, so we need to get him up there and tell people to …

OFFICER: The east front is the problem now.

INDIVIDUAL: Alright, is there a way that we can get him to a position …

OFFICER: Through the hole, through the hole that you guys breached right there *Pointing northeast away from the Capitol Building.*

INDIVIDUAL: We didn’t breach anything.

OFFICER: Well, the whole group that was with you guys.

INDIVIDUAL: We’re just trying to help.

OFFICER: Out through there, all the way out there, take him up there. *Pointing northeast, away from the Capitol Building.* [my emphasis]

That is, this cop specifically told Jones and his entourage, including Alexander, to go to the area where Alexander had a permit (albeit for dozens, not thousands, of people). Instead of going in that direction, they instead circled around close to the Capitol, stepping over barricades and an “Area Closed” sign.

As the defendant and his group curved around the Capitol Building, the body-camera individual stated, “Here’s an opening right here.” The defendant and his group then walked toward where the body-camera individual pointed, passing downed and moved temporary barricades and stepping over at least one fallen sign that appeared to read “Area Closed,” as seen below circled in red.

When Jones’ bodyguard again asked for sanction to trespass in the area where they didn’t have a permit, the cops walked away.

The body-camera individual continued to yell that [Jones] could deescalate the situation, begging them to let Person One speak to the crowd. The two officers speaking then walked away and out of sight. The body-camera individual exhorted, “Nah, that’s not good, dude. That’s not good. That’s fucked. That’s fucked. No way. No fucking way. No way.”

After being told to pull the crowd away towards where Alexander had a permit, but instead deciding to go speak where he didn’t, Jones’ bodyguard acknowledged they might get in trouble for doing so.

The body-camera individual then walked back toward the defendant’s group and asked, “Just get him up there? Hey, Tim, just get him up there? Just do it? But we know we might catch a bang or two.”

And then, after the entourage joined former Jones’ staffer Joe Biggs and the advance guard of the Oath Keepers at the top of the East steps, Jones and Shroyer — still with Alexander present — called for revolution.

Once the defendant and others nearly reached the top, he began to use his megaphone to lead the large crowd in various chants, including “USA!” and “1776!”—again, a reference to revolution.

While, before Jones lured more mobs to the East side of the building, he did call people to stand down, once he got to the East steps, he further riled the crowd. As the government notes sardonically, calling for revolution “does not qualify as deescalation.”

Even assuming the defendant’s argument is true and the defendant received permission to go to the Capitol steps for the limited purpose of deescalating the situation, the defendant did not even do that. Quite the opposite. Despite the defendant’s arguments today that “Shroyer did nothing but offer his assistance to calm the crowd and urge them to leave United States Capitol grounds,” Dkt. 8-1 at 14, the defendant himself said otherwise in an open-source video recorded on August 21, 2021: “From the minute we got on the Capitol, the Capitol area, you [referring to Person One] started telling people to stand down, and the second we got on there, you got up on stacks of chairs, you said, ‘We can’t do this, stand down, don’t go in.’ … And I’m silent during all of this” (emphasis added).11 Moreover, as seen in other videos and described above, the defendant forced his way to the top of Capitol Building’s east steps with Person One and others and led hundreds of other rioters in multiple “USA!” and “1776!” chants with his megaphone. Harkening to the last time Americans overthrew their government in a revolution while standing on the Capitol steps where elected representatives are certifying a Presidential Election you disagree with does not qualify as deescalation.

Had Ali Alexander and Alex Jones taken the crowd they had led to the riot, like Pied Pipers, to Demonstration Area 8 (per the permits that BuzzFeed liberated), which is roughly where the cops directed them to go, and which is where they had a stage and a sound system, they might have prevented, or at least mitigated, the breach of the East front.

Instead, Alexander’s entourage joined their militia allies on the East steps and incited revolution, just moments before some of those militia members forcibly opened a second breach into the Capitol.

Alexander’s real goal, in testifying to the committee (rather than pleading the Fifth, which would be the smart thing to do) may be to learn what the Committee knows, while pretending that his cooperation — which has taken two months, not two weeks — is voluntary, not legally mandated.

In closing, I want to reiterate my posture of compliance. Over the past few weeks, I have spent more than 100 hours personally searching through my archives looking for relevant and responsive documentation to this committee’s requests. I’ve probably spent another 100 hours preparing to answer your questions. I have hired attorneys and computer consultants to be as responsive as possible and provide as much as I could find within the short amount of time I had to produce documents.

I did all of this despite not being accused of a crime. I did all of this despite being a private citizen with Constitutional rights protecting me from unreasonable searches and seizures and without a warrant entitling anyone to the documents I’ve voluntarily provided. It’s prevented me from working. It’s prevented me from sleeping, at times. It’s been extremely difficult and burdensome.

But I am voluntarily here to do the patriotic thing.

If this committee thinks of anything I haven’t turned over to which you believe I may have access, I ask you please to let me know and help refresh my memory. [bold my emphasis, italics Alexander’s emphasis]

When Stone tried to avoid telling the truth to Adam Schiff four years ago, when he actually hadn’t yet received a subpoena, it still led to his prosecution for multiple false statements. Here, Alexander is simply pretending he hasn’t been subpoenaed to appear.

Alexander will be represented today by, among others, Paul Kamenar, the lawyer who — after Roger Stone learned that his former aide had provided damaging information to the FBI — appealed Andrew Miller’s subpoena to testify to Mueller’s grand jury to the DC Circuit, thereby stalling until after the Mueller Report was done. Immediately after the trial was done, Stone hired Kamenar, presumably to learn what Miller had said in subsequent FBI interviews.

That raises real questions about whether Alexander is repeating Stone’s colossally stupid approach to the Russian investigation for his own benefit, or for Stone’s.

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A Taxonomy of the [Visible] January 6 “Crime Scene” Investigation

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In preparation for a post about how DOJ might or might not make the move beyond prosecuting pawns who breached the Capitol to those who incited them to come to the Capitol, I want to describe a taxonomy of the January 6 “crime scene” investigation — which I mean to encompass the investigation as it has worked up from the people who actually stormed the Capitol. This is my understanding of how the many already-charged defendants fit together.

DOJ has arrested close to 700 people (probably more than that once you consider cases that haven’t been unsealed). Those defendants generally fit into the following categories, all of which are non-exclusive, meaning lots of people fall into more than one category:

  • Militia conspirators and militia associates
  • Assault defendants
  • Mobilized local networks
  • Other felony defendants
  • Misdemeanants
  • Organizer inciters

In my discussion below, these are all allegations, most of the felony defendants have pled not guilty, and are presumed innocent.

Militia conspirators and militia associates

The most newsworthy prosecutions, thus far, are the militia conspiracies, though not all militia members have been charged as part of a conspiracy.

There are 17 people facing charges in the Oath Keeper conspiracy, plus four cooperators, as well as another cooperator and two more Oath Keepers not charged in the conspiracy.

There are 17 Proud Boys currently charged in various conspiracies, including four, thus far, charged in what I call the Leader conspiracy. I suspect in the near future there will be consolidation of the core Proud Boy cases. In addition, there are a significant number of Proud Boys charged either in group indictments (such as the five men who followed Joe Biggs around that day), or individually, some with assault (such as Christopher Worrell, David Dempsey, and Dan “Milkshake” Scott), and some with just trespassing (such as Lisa Homer or Micajah Jackson).

There is one conspiracy indictment against mostly 3%ers, along with Guy Reffitt, who was individually charged, and a few others whose 3% ties are less well-established in charging papers.

All of which is to say that a small but significant minority of the January 6 defendants have some tie to an organized militia group.

That’s important, because the government is very close to showing that there was a plan — led at the Capitol by the Proud Boys, but seemingly coordinated closely with some members of the Oath Keepers. The plan entailed initiating a breach, surrounding the Capitol, opening up multiple additional fronts (of which the East appears to be the most important), and inciting the “normies” to do some of the worst violence and destruction, making the Capitol uninhabitable during the hours when Congress was supposed to be making Joe Biden President. Until about 4PM — when cops began to secure the Capitol and DOD moved closer to sending in the National Guard — the plan met with enormous success (though I wouldn’t be surprised if the conspirators hoped that a normie might attack a member of Congress, giving Trump cause to invoke harsher measures).

People complain that DOJ has been doing nothing in the 11 months since the riot. But this has been a central focus of DOJ’s effort: understanding how this plan worked, and then assembling enough evidence and cooperating witnesses to be able to lay out several intersecting conspiracies that will show not just that these groups wanted to prevent the certification of the vote (what they’re currently charged with), but pursued a plan to lead a mob attack on the Capitol to ensure that happened.

Proving these interlocking conspiracies would be vital to moving up from the militias, because it shows the premeditation involved in the assault on the Capitol. DOJ hasn’t rolled this out yet, but they seem to be very very close.

Assault defendants

Close to 150 people have been charged with assault (DOJ has a higher number but they’re tracking two different crimes, 18 USC 111, assault, and 18 USC 231, whereas I’m tracking just the former). The assaults charged against these defendants range from pushing a cop once to tasing someone and nearly killing him. Much of this amounted to mob violence, albeit at times the mob violence was pretty finely coordinated.

That said, there are a handful of defendants charged with assaults that were tactically critical to the plan implemented by the Proud Boys (again, these are just allegations and all have pled not guilty and are presumed innocent):

  • After speaking with Proud Boy Joe Biggs, Ryan Samsel kicked off the riot by storming over the first barricade, knocking over a female cop
  • Ronnie Sandlin and Nate DeGrave helped open both the East Door and Senate gallery doors
  • Jimmy Haffner allegedly sprayed something at the cops trying to stave off the crowd on the East side
  • George Tenney pushed cops away from the East door and opened it (he is charged with civil disorder, not assault)
  • Active duty Marine Chris Warnagiris kept cops from closing the East door after Tenney had opened it

It’s important to understand whether those defendants who committed tactically critical assaults were operating with knowledge of the larger plan.

For most of the rest of the assault defendants, though, it’s a matter of identifying them, assembling the video and other evidence to prove the case, and finding them to arrest them.

The FBI has posted close to 500 total assault suspect BOLOs (Be On the Lookout posters, basically a request for help identifying someone), which means there may be up to 350 assault suspects still at large.

I expect assault arrests to continue at a steady pace, perhaps even accelerate as the government completes the investigations required with people who either used better operational security or fled.

Mobilized local networks

Something DOJ appears to be investigating are key localized networks through which people were radicalized.

This is most obvious for Southern California. The 3%er indictment is geographically based (and as I’ll argue in a follow-up, is investigatively important for that geographic tie.) In addition, after months of contemplating what seemed like it might be a larger conspiracy indictment, DOJ recently charged Ed Badalian and a guy nicknamed Swedish Scarf, in a conspiracy with one of the people accused of tasering Michael Fanone, Danny Rodriguez.

Recent arrest affidavits, most notably that of Danean MacAndrews, also show that FBI shared identifiers from the various geofence warrants obtained targeting the Capitol on January 6 and shared them with regional intelligence centers to identify local participants in the mob.

There have been recent case developments, too, which suggest DOJ is letting people from Southern Californian plead down in an effort to obtain their testimony (which I’ll explain more in my discussion of misdemeanants).

Some of this localized investigation feeds back into the larger investigation, as evidenced by the two conspiracy indictments coming out of Southern California. But it also shows how these various radicalized networks fit together.

While it is less visible (and perhaps because there’s not always the same terrorist and drug war intelligence infrastructure as LA has, potentially less formalized), I assume similar localized investigations are going on in key organizing hotspots as well, including at least PA and FL, and probably also the Mountain West.

Other felony defendants

There are other defendants charged with a felony for their actions on January 6, most often for obstruction of the vote count (under 18 USC 1512c2) and/or civil disorder. As of November 6, DOJ said 265 people had been charged with obstruction. A number of those obstruction defendants have been permitted to plead down to a trespassing charge, usually the more serious 18 USC 1752.

It’s hard to generalize about this group, in part because some of the mobilizing networks that got these people to the Capitol would not be visible (if at all) until sentencing, particularly given that few of them are being detained.

But the group includes a lot of QAnoners — which, I have argued, actually had more success at getting bodies into place to obstruct the vote count than the militias (which were busy opening multiple fronts). The PodCast Finding Q revealed that the FBI started more actively investigating QAnon as a mobilizing force in the days after the insurrection. So the FBI may well be investigating QAnon from the top down. But it’s not as easy to understand as — for example — investigative steps targeting QAnoners as it is the militia networks, in part because QAnon doesn’t require the same kind of network ties to radicalize people.

These defendants also include people mobilized in other networks — some anti-mask, some military, some more directly tied to institutional right wing organizations, and some who simply responded to the advertising for the event. Understanding how and why these people ended up at the Capitol is a critical step to understanding how the event worked. But it is harder to discern that from the court filings available.

Aside from better known right wing personalities, it’s also harder to identify potentially significant defendants from this group.

In the days ahead, a number of DC judges will be ruling on DOJ’s application of obstruction. Unless all rule for the government (which I find unlikely), it means DOJ will face a scramble of what to do with these defendants, especially those not otherwise charged with a felony like civil disorder. And until judges rule, there will be a significant number of felony defendants who are deferring decisions on plea offers, to see whether the felony charge against them will really survive.

The fact that most of the least serious felony defendants are delaying plea decisions creates an artificial appearance that the vast majority of those charged in January 6 were charged with trespassing. It’s not that there aren’t a huge number of felony defendants; it’s just that they’re not making the news because they’re not pleading guilty, yet.

Misdemeanants

The most common complaint about the January 6 investigation — from both those following from afar and the judges facing an unprecedented flood of trespassing defendants in their already crowded court rooms — the sheer number of trespassing defendants.

It is true that, in the days after the riot, DOJ arrested the people who most obviously mugged for the cameras.

But in the last six months or so, it seems that DOJ has been more selective about which of the 2,000 – 2,500 people who entered the Capitol they choose to arrest, based off investigative necessities. After all, in addition to being defendants, these “MAGA Tourists” are also witnesses to more serious crimes. Now that DOJ has set up a steady flow of plea deals for misdemeanors, people are pleading guilty more quickly. With just a few exceptions, the vast majority of those charged or who have pled down to trespassing charges have agreed to a cooperation component (entailing an FBI interview and sharing social media content) as part of their plea deal. And DOJ seems to be arresting the trespassers who, for whatever reason, may be useful “cooperating” witnesses for the larger investigation. I started collecting some of what misdemeanant’ cooperation will yield, but it includes:

Video or photographic evidence

Hard as it may be to understand, there were parts of the riot that were not, for a variety of reasons, well captured by government surveillance footage. And a significant number of misdemeanor defendants seem to be arrested because they can be seen filming with their phones on what surveillance footage does exist, and are known to have traveled to places where such surveillance footage appears to be unavailable or less useful. The government has or seems to be using evidence from other defendants to understand what happened:

  • Under the scaffolding set up for the inauguration
  • At the scene of Ashli Babbitt’s killing (though this appears to be as much to get audio capturing certain defendants as video)
  • In the offices of the Parliamentarian, Jeff Merkley, and Nancy Pelosi
  • As Kelly Meggs and other Oath Keepers walked down a hallway hunting for Nancy Pelosi
  • Some of what happened in the Senate, perhaps after Leo Bozell and others rendered the CSPAN cameras ineffective

In other words, these misdemeanor arrests are necessary building blocks for more serious cases, because they are in possession of evidence against others.

Witness testimony

TV lawyers seem certain that Trump could be charged with incitement, without considering that to charge that, DOJ would first have to collect evidence that people responded to his words by invading the Capitol or even engaging in violence.

That’s some of what misdemeanor defendants would be available to testify to given their social media claims and statements of offense. For example, trespasser defendants have described:

  • What went on at events on January 5
  • The multiple signs that they were not permitted to enter whatever entrance they did enter, including police lines, broken windows and doors, loud alarms, and tear gas
  • Directions that people in tactical gear were giving
  • Their response to Rudy Giuliani and Mo Brooks’ calls for violence
  • Their response to Trump’s complaint that Mike Pence had let him down
  • The actions they took (including breaching the Capitol) after Alex Jones promised they’d get to hear Trump again if they moved to the East front of the Capitol

Securing the testimony of those purportedly incited by Trump or Rudy or Mo Brooks or Alex Jones is a necessary step in holding them accountable for incitement.

Network information

Some misdemeanor defendants are being arrested because their buddies already were arrested (and sometimes these pleas are “wired,” requiring everyone to plead guilty together). Other misdemeanor defendants are part of an interesting network (including the militias). By arresting them (and often obtaining and exploiting their devices), the government is able to learn more about those with more criminal exposure on January 6.

Misdemeanor plea deals

In its sentencing memo for Jacob Hiles, the guy who otherwise would probably be fighting an obstruction charged if he hadn’t helped prosecute Capitol Police Officer Michael Riley, the government stated that, “no previously sentenced defendant has provided assistance of the degree provided by the defendant in this case.” The comment strongly suggests there are other misdemeanor defendants who have provided such assistance, but they haven’t been sentenced yet.

This category is harder to track, because, unless and until such cooperation-driven misdemeanor pleas are publicly discussed in future sentencing memos, we may never learn of them. But there are people — Baked Alaska is one, but by no means the only one, of them — who suggested he might be able to avoid obstruction charges by cooperating with prosecutors (there’s no sign, yet, that he has cooperated). We should assume that some of the defendants who’ve been deferring charges for months on end, only to end up with a misdemeanor plea, cooperated along the way to get that charge. That is, some of the misdemeanor pleas that everyone is complaining about likely reflect significant, completed cooperation with prosecutors, the kind of cooperation without which this prosecution will never move beyond the crime scene.

Organizer inciters

In this post, I have argued that DOJ is very close to rolling out more details of the plot to seize the Capitol, a plot that was implemented (at the Capitol) by the Proud Boys in coordination with other militia-tied people. I have also argued that one goal of the misdemeanor arrests has been to obtain evidence showing that speeches inciting violence, attacks on Mike Pence, or directing crowds to (in effect) trespass brought about violence, the targeting of Mike Pence, and the breach of the Capitol.

If I’m right about these two observations, it means that the investigation has reached a step where the next logical move would be to charge those who incited violence or directed certain movement. The next logical step would be to hold those who caused the obstruction accountable for the obstruction they cultivated.

This is why I focused on Alex Jones in this post: because there is a great deal of evidence that Alex Jones, the guy whom Trump personally ordered to lead mobs to the Capitol, was part of the plot led by his former employee, Joe Biggs, to breach a second front of the Capitol. If this investigation is going to move further, people like Alex Jones and other people who helped organize and incite the riot, will be the next step.

In fact, DOJ has made moves towards doing this for months — though at the moment, they seem woefully inadequate. For example DOJ charged Brandon Straka, who had a key role in inciting violence both before and at the event, in January; he pled guilty to a misdemeanor in October (his sentencing just got moved from December 17 to December 22). DOJ charged Owen Shroyer, Jones’ sidekick as the Pied Piper of insurrection, but just for trespassing, not for the obvious incitement he and Jones did. The one case where DOJ has already moved to hold someone accountable for his role in inciting violence is Russell Taylor, who was charged in the 3%er conspiracy, but that conspiracy indictment will test DOJ’s ability to hold those who incited violence accountable.

Back in August, when these three developments were clear, I noted that DOJ had only barely begun to unpack what happened on January 5 (to say nothing of events in DC in December), which played a key role in the success of January 6. It has provided scant new detail of having done so (though there are signs they are collecting such information).

The investigation at the crime scene is not the only investigation into January 6 going on. Merrick Garland made it clear DOJ was following the money. The FBI conducted investigative steps targeting QAnon just days after the riot. Daily Beast broke the news of a grand jury investigation into Sidney Powell’s grifting, an investigation that may be assisted by recriminations between her, Mike Flynn, and Patrick Byrne.

But the investigation building off of the crime scene will proceed, or not, based on DOJ’s ability to build cases against the organizer inciters.

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John Durham Wants Permission to Delay Providing Evidence of How Weak His Michael Sussmann Case Is

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Donald Trump’s insurrectionists may be the only thing that can save John Durham’s indictment of Michael Sussmann.

That’s because Durham seems to think he’ll need to have two extra months over what Sussmann gauges should be necessary, and permission to delay production of Brady materials, to sustain the single false statement charge over Sussmann. As a Sussmann motion to set a trial date submitted yesterday revealed, his team and Durham’s are having a significant disagreement over when the trial should be scheduled. Durham wants four months from now to turn over discovery and wants to schedule the trial for July, whereas Sussmann thinks the trial should be held in May.

Given two exhibits Sussmann included with this motion (and other publicly available documents), it’s easy to see why Durham wants more time.

That’s because Jim Baker has said at least four different things that conflict with the alleged lie that Durham claims Sussmann told in a September 19, 2016 meeting with then-FBI General Counsel Baker:

On or about September 19, 2016, SUSSMANN met with the FBI General Counsel at FBI Headquarters in the District of Columbia to convey the Russian Bank-1 allegations. No one else attended the meeting. During the meeting, the following, in substance and part, occurred:

SUSSMANN stated falsely that he was not acting on behalf of any client, which led the FBI General Counsel to understand that SUSSMANN was conveying the allegations as a good citizen and not as an advocate for any client;

SUSSMANN stated that he had been approached by multiple cyber experts concerning the Russian Bank-1 allegations;

SUSSMANN provided the names of three cyber experts, but did not name or mention Tech Executive-1, the Clinton Campaign, or any other person or company referenced [in Durham’s indictment];

Durham has charged Sussmann with affirmatively lying about representing a client in that meeting.

In an earlier post, I argued that Durham probably hadn’t actually quoted what transpired in this meeting because his sources (meaning Baker, Bill Priestap’s hearsay notes of Baker’s account of the meeting, and some CIA personnel Sussmann met at a later meeting) offered different versions of what Sussmann actually said.

It’s quite possible that Durham has presented these allegations using such squishy language because what little evidence he has doesn’t actually agree on the claimed lies. That is, it may be that Baker believes Sussmann simply didn’t bother explaining which client he was working for, but Bill Priestap, the next in line in a game of telephone, differently understood from Baker’s report that Sussmann affirmatively failed to provide Baker information that (Priestap’s own notes prove) the FBI already had anyway, that he was working with Hillary Clinton.

But it’s far worse than that.

Jim Baker doesn’t agree with Jim Baker about what happened in the meeting. Baker has provided at least four different versions of his understanding of why Sussmann shared the Alfa Bank information with him (I’ve got longer excerpts below). At an October 3, 2018 interview with the Oversight Committee (where Baker brought it up), he said, “I don’t recall [Sussmann] saying that,” he worked for the DNC. At an October 10, 2018 interview with the Oversight Committee, he told Jim Jordan he didn’t “remember [Sussmann] saying that he was acting on behalf of a particular client.” In a July 15, 2019 interview with DOJ IG, Baker explained that Sussmann said their meeting “related to strange interactions that some number of people that were his clients, who were, he described as I recall it, sort of cyber-security experts, had found about some strange connection between some part of Donald Trump’s organizations and Alfa Bank.” In a June 2020 interview with Durham’s team (which as a 302 may be less reliable than the other sources), Baker said, “it did not seem like Sussmann was representing a client. Baker repeated his earlier assertion that he did not know Sussmann was representing the DNC at the time and Sussmann did not advise him of that fact at this particular meeting.” Presumably, Baker testified to the grand jury, too, but that interview would have been after all of these earlier versions. In none of the publicly available versions of Baker’s story does Sussmann affirmatively say he was not representing the DNC or any other client, and in one case — the DOJ IG interview — Baker remembered Sussmann commenting that he had a client; and that version (which Sussmann wouldn’t have had access to before getting it in discovery) matches Sussmann’s public story.

As Sussmann noted in his filing, Durham dumped a whole bunch of discovery on him shortly after the indictment, but it has taken over two months to turn over the conflicting evidence that goes to the core of the alleged false statements.

While the Special Counsel has produced significant discovery since Mr. Sussmann’s Indictment, the Special Counsel has delayed in producing key evidence, which the Special Counsel was required to timely disclose under Brady v. Maryland, 373 U.S. 83 (1963). Indeed, it was only last week—nearly two and a half months after Mr. Sussmann’s indictment, and in the face of persistent demands by Mr. Sussmann’s counsel—that the Special Counsel for the first time disclosed some (but not all) of Mr. Baker’s statements about the September 19, 2016 meeting.1

[snip]

1 Moreover, significant portions of the statements that were disclosed were redacted, an issue which defense counsel has raised with the Special Counsel.

Durham seems intent on similar delays in producing evidence undermining his case. Besides the two month date discrepancy, there are a few subtle but significant differences in their proposed schedules. In the proposed order scheduling order Sussmann has submitted, Durham would be, “under a continuing and ongoing obligation to provide defense counsel any favorable or exculpatory information (Brady), whether or not admissible in evidence, as soon as reasonably possible.” [my emphasis] Durham’s proposed version takes out the words, “as soon as reasonably possible.” Durham, of course, has already violated that part of Sussmann’s proposed scheduling order by sitting on multiple pieces of proof that have been in his and DOJ’s possession for over a year that undermine the claim Sussmann lied.

Durham may suspect the Brady discovery will make this indictment unsustainable. Durham’s more extended schedule would give Sussmann just two weeks after the final deadline for Brady discovery, from March 25 to April 8, to file the motion to dismiss he has already said he’d file. Sussmann’s more condensed schedule nevertheless gives himself three weeks, from January 28 to February 18, to incorporate classified Brady discovery into his motion to dismiss, and over a month, from January 14 to February 18, to incorporate unclassified Brady discovery.

From the start, I noted that this indictment really isn’t about the alleged false statement. Rather, Durham clearly wants to wrap this up into a grand Conspiracy to Defraud the US charge, incorporating Rodney Joffe, the researchers, Fusion GPS, and maybe Christopher Steele.

It’s not just that Durham is working on a theory that Sussmann deliberately dealt garbage to the FBI (which GOP sources also did on the Clinton Foundation) while trying to hide that fact. It’s that data originally sourced from the government was used in doing that research.

It’s actually the kind of argument that DOJ prosecutors typically succeed with. Except it’s all premised on proving that Sussman was trying to hide all this in his meeting with Baker. Even if the evidence surrounding the meeting weren’t so flimsy, this is another degree of motive that Durham is straining mightily to make.

Durham needs Sussmann to have lied, because a deliberate attempt to obscure the rest is necessary for his “storyline.” His evidence that Sussmann lied — much less, deliberately — is shoddy. But if he can’t get that, then his hopes for a larger “narrative” collapse.

So one thing Durham is likely trying to do with his delayed schedule is to buy time to try to make that claim stick. There are already several details that have been made public that show Durham will struggle to make this claim. Durham left out exculpatory details about the researchers in his indictment. The Federalist obtained — but downplayed — evidence that the researchers were not (as Durham insinuated in his indictment) involved with Fusion GPS.

Further, unlike Joffe, who worked hand-in-hand with Sussmann, according to Fusion GPS employee Laura Seago, who had worked on the Alfa project, she was not aware of anyone at Fusion GPS communicating with either [David] Dagon or [Manos] Antonakakis. And while she had heard Dagon’s name before, Seago first came across Antonakakis’s name in a newspaper article.

Antonakakis has not had any contact with Sussman, Marc Elias, or Fusion GPS, his lawyer Mark Schamel told The Federalist. “In this case,” Schamel added, “he reviewed a narrative presented to him by a well-known and respected researcher and provided his feedback, as he does for more than 100 unpublished research articles he receives every year.” Attorneys representing Lorenzen and Dagon did not return requests for comment.

Durham already confessed that he had no evidence Sussmann was working directly with the Hillary campaign on this. Most importantly, all the researchers believed and still believe that the Alfa Bank DNS data showed a real anomaly, and they first discovered it in a legitimate attempt to identify further attempts Russia made to tamper in the 2016 election. If that case were made to the jury, then Sussmann will be able to explain why Baker didn’t apparently think it all that important to ask who Sussmann was representing: because it was an alarming anomaly, no matter who brought it to the FBI.

Still, Durham is likely to get the time he wants. The backlog of trials for incarcerated pre-trial defendants in DC (including 70 or so January 6 defendants) will more likely dictate the trial date for Michael Sussmann than the substance of the dispute between the two of them.

Update: I should have also noted that Beryl Howell’s order tolling Speedy Trial because of COVID protocols will give Durham a way to get out of the 70 day Speedy Trial rule.

October 3, 2018 Oversight/HJC Interview

Mr. Baker. He told — he said that there had been — I’m not sure exactly how they originally learned about that information, but what he told me was that there were cyber — Mr. Meadows. I mean, is he a normal intel operative? How would he have come by this? Mr. Baker. He told me that he had cyber experts that had obtained some information that they thought they should get into the hands of the FBI.

[snip]

[Shen] Okay. So when Mr. Sussman came to you to provide some evidence, you were not specifically aware that he was representing the DNC or the Hillary Clinton campaign at the time? A I don’t recall, I don’t recall him specifically saying that at that time.

[snip]

Q Okay. So I guess it is just my interpretation, but I believe last round it was somewhat implied that if he did have an association to the Democratic National Committee and the Hillary Clinton campaign that that might lead someone to believe that something improper was done. And I wonder if you could just explain to me, you know, why your view is that it was not improper because, just the mere notion that someone who is a Democrat or Republican, you know, comes to you with information, should that information somehow be discounted or considered less credible because of, you know, partisan affiliation? A Well, the FBI is responsible for protecting everybody in this country. Period, full stop. And we do that, without regard to who they are or what their political background is or anything else. If they believe they have evidence of a crime or believe they have been a victim of a crime, we will do what we can within our lawful authorities to protect them. And so when a citizen comes with evidence, we accept it. That is my, just general understanding over many, many years. We, the Bureau, we, the Department of Justice. And so that is how I construed what Michael was doing. It was, he believed he had evidence, again, either of a crime or of a national security threat, and he believed it was appropriate to provide it to us. When he did, I didn’t think there was anything improper about it whatsoever.

[snip]

Mr. Jordan. Okay. Do you know how Sussman got this material? Mr. Baker. What I recall is he told me that there were some cyber experts that somehow would come across this information and brought it somehow to his attention, and that they were alarmed at what it showed, and that, therefore, they wanted to bring it to the attention of the FBI. Mr. Jordan. Did he — Mr. Baker. They and Sussman. Mr. Jordan. They. Any names? Mr. Baker. I don’t think I ever found out who these experts were. Mr. Jordan. Did he indicate that he got this — may have got some of this information from the Democratic National Committee? Mr. Baker. I don’t recall him saying that. Mr. Jordan. Did you know when he was giving this information did you know he was working for — that he did extensive work for the DNC and the Clinton campaign? Mr. Baker. I am not sure what I knew about that at the time. I remember hearing about him in connection — when the bureau was trying to deal with the hack and investigating the hack, that my recollection is that Michael was involved in that process to some degree. I didn’t interact with him on that, so I am not sure if I knew that before this meeting or after, but I don’t recall him specifically saying —

October 18, 2018 Oversight/HJC Interview

Mr. Baker. To the best of my recollection, he told me that it had been obtained by some type of cyber experts, and I don’t know who — how they started their inquiry into this. But that is what he told me, that some certain cyber experts had obtained information about some anomalous looking thing having, to my knowledge, nothing to do with the dossier. But anyway — Mr. Jordan. Did he mention — did Fusion GPS play a role in him getting information that he subsequently gave to you? Mr. Baker. I don’t remember him mentioning Fusion GPS in connection with this material. Mr. Jordan. Did he mention at all when he was talking to you? Mr. Baker. Not to my recollection, no. Mr. Jordan. What about Glenn Simpson? Mr. Baker. Not on this thing, no. Mr. Jordan. How about Christopher Steele? Mr. Baker. No. Mr. Jordan. Okay. Did you meet with anyone else at Perkins Coie relative to this issue, Russia investigation issue?

[snip]

Mr. Baker. Yes, sir. And there was some effort — there was some belief that this was a — being conducted in a way so as to make it a covert communications channel. Mr. Jordan. Okay. And my first question would be how’d you get this? Did you ask that question? Mr. Baker. I did ask that question at a high level, yes. And he explained that he had obtained it from, again, cyber experts who had — who had obtained the information, and he said that the details of it would explain themselves. That’s my recollection. Mr. Jordan. And was he representing a client when he brought this information to you? Or just out of the goodness of his heart, someone gave it to him and he brought it to you? Mr. Baker. In that first interaction, I don’t remember him specifically saying that he was acting on behalf of a particular client. Mr. Jordan. Did you know at the time that he was representing the DNC in the Clinton campaign? Mr. Baker. I can’t remember. I have learned that at some point. I don’t — as I think I said last time, I don’t specifically remember when I learned that. So I don’t know that I had that in my head when he showed up in my office. I just can’t remember. Mr. Jordan. Did you learn that shortly thereafter if you didn’t know it at the time? Mr. Baker. I wish I could give you a better answer. I just don’t remember. Mr. Jordan. I mean, I just find that unbelievable that the guy representing the Clinton campaign, the Democrat National Committee, shows up with information that says we got this, and you don’t ask where he got it, you didn’t know how he got it. But he got it from some, you know, quote, expert. Mr. Baker. Well, if I could respond to that. Mr. Jordan. Sure. Mr. Baker. I mean, so I was uncomfortable with being in the position of having too much factual information conveyed to me, because I’m not an agent. And so I wanted to get this — get the information into the hands of the agents as quickly as possible and let them deal with it. If they wanted to go interview Sussmann and ask him all those kind of questions, fine with me. Mr. Jordan. Did that happen? Mr. Baker. I don’t know that. But I — I mean, I — well, A, I did hand it off to the — to the investigators. Mr. Jordan. I think you told us you handed it off to Mr. Strzok and Mr. Priestap? Mr. Baker. My recollection is Mr. Priestap. Mr. Jordan. Okay. And you don’t know if they followed up or not? Mr. Baker. Bill Priestap told me that they did follow up extensively.

July 15, 2019 OIG interview

Did you generally have a sense that they represented, that their political law practice had a Democratic clientele?

MR. BAKER: Maybe I should have, but I didn’t really understand it at the time.

MS. TERZAKEN: Is that right?

MR. BAKER: I did not, no.

MS. TERZAKEN: Okay.

MR. BAKER: I came to understand, you know, that, that Perkins-Coie was playing a role with respect to the DNC hack. But the, the extensiveness of their contacts with the Democratic Party, I did not, at the time, have an understanding about, that I recall.

[snip]

MS. TERZAKEN: Okay. With Michael Sussman, your conversations with him before the election, if you could briefly describe how the conversations came about, what information he provided to you.

MR. BAKER: So, I’ll go into the Sussman stuff, yeah, okay. So he came in, he, he, all of this is gone over in the transcript with the committee, so I won’t, I’ll try to just summarize briefly. My basic recollection is, in some way, shape, or form, Michael reached out, and wanted to come in and meet with me. And so we scheduled that. So Michael came in and met with me. And he had some amount of information, physical evidence, printed out, and also a thumb drive or two, that he said related to strange interactions that some number of people that were his clients, who were, he described as I recall it, sort of cyber-security experts, had found about some strange connection between some part of Donald Trump’s organizations and Alfa Bank, which was described as being controlled by the Kremlin. And that it appeared to be the case that this was a, it was, it, it was surmised that this was a back-channel, what do you call it, a back-channel of electronic communications. That, that somehow the Trump organization and Alfa Bank were using this, what looked like a, basically a surreptitious channel to communicate with each other.

June 2020 Durham interview (302)

Sussmann arrived at Baker’s office alone and gave Baker some electronic media and some paper approximately one inch thick. He and Baker met alone in Baker’s office, with no one else present. Sussmann advised Baker that some cyber security researchers had discovered the information and brought it to Sussmann’s attention. The information purported to describe a digital relationship between the Trump organization and Alfa Bank, and Sussmann gave Baker a technical description of that relationship. Sussmann also told Baker he thought it was important for the FBI to have the information. Sussmann also told Baker that the press had the information. Baker said that Sussmann did not specify that he was representing a client regarding the matter, nor did Baker ask him if he was representing a client. Baker said it did not seem like Sussmann was representing a client. Baker repeated his earlier assertion that he did not know Sussmann was representing the DNC at the time and Sussmann did not advise him of that fact at this particular meeting. Baker also said he did not know Sussmann’s firm, Perkins Coie, represented the Hillary Clinton campaign. Baker does not recall Sussmann advising him of the rationale for the cybersecurity researchers bringing the information to him. Additionally, Baker recalls Sussmann telling him that he believed the information was serious and credible. Baker said the meeting with Sussmann lasted approximately 15-20 minutes and he described it as short and cordial. He did not feel there was anything inappropriate about Sussmann meeting with him and providing the information to him.

[snip]

Baker said he could not recall telling Priestap at that time that Sussmann represented the DNC and the Clinton Foundation, but he (Baker) may have known it at the time.

 

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How One CCTV Camera Was Rendered Ineffective Over Two Hours on January 6

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This is a screen cap from the first CCTV video successfully released by a January 6 defendant.

It shows the Tunnel as it appeared at 2:53 on January 6.

In June, accused assault defendant John Anderson’s attorney, Marina Medvin, argued that Anderson needed the video to show — and argue publicly — that, contrary to showing an older man lunge to the front of violent mob, the video instead showed a man suffering from the effects of tear gas and moving up towards a line of officers to ask for help.

The government’s evidence, instead, shows a man approaching police to seek medcial [sic] attention after being chemically prayed by a member of the crowd and after being subjected to additional chemical spray released into the crowd by law enforcement. The video sought for release, and being blocked by the government, establishes Mr. Anderson’s defense.

[snip]

Furthermore, the defense should be free to utilize this highly exculpatory short video to defend Mr. Anderson just as the government uses their discretion to publicize videos and screenshots to accuse this defendant, and every other, of very serious crimes. And, Mr. Anderson should be free to utilize CCTV video publicly just as the government has utilized CCTV video publicly to benefit their position in other prosecutions. See discussion infra. The defense should not need to explain how or why we need this evidence when the exculpatory nature of the evidence is clear on its face. The subjection of this 30-second CCTV clip to a Protective Order prejudices the defendant immensely. The government’s position on preventing the release of a 30-second recording is unreasonable and fails to meet the burden that is on the government to prevent release.

The government argued against that release, describing that unnamed people were using the aftermath of the January 6 attack to gather non-public information about the interior of the Capitol to identify vulnerabilities.

The USCP’s concern with release of the footage is based on an awareness of efforts made by individuals, whether participants in the Capitol riots or not, to gather information about the interior of the U.S. Capitol which is generally not publicly available. The USCP is concerned that release of the footage without protection, especially to defendants who have already shown a desire to interfere with the democratic process, will result in the release of information regarding the vulnerabilities and security weaknesses of the U.S. Capitol which could be used in a future attack.

After weeks of litigation, Chief Judge Beryl Howell ordered that the “Highly Sensitive” designation on the video be lifted, freeing Medvin to share the video publicly.

Medvin will never use this video at trial. Anderson is one of the January 6 defendants who passed away since he was charged. Still, the release of that video marked the first step in the subsequent release of far more video of which Capitol Police had initially tried to restrict the widespread release.

This is a screen shot of a video seemingly taken from the same (or an adjacent) camera around 4:20PM on January 6.

The screen cap appeared in a filing opposing the release of James McGrew. McGrew is accused of “position[ing a] pole [handed to him by another rioter] over his head and launch[ing] the pole into the tunnel” at a line of police officers. While some substance got splattered onto the lens of the camera in the ensuing 87 minutes, the camera still proved useful in identifying participants in the hours-long struggle that it filmed.

The video was released just weeks ago, after Beryl Howell ruled against McGrew’s bail motion on November 2.

This is a screen cap from the same camera taken 32 minutes later.

The same splatters that had made the video less useful at 4:20, made the video almost useless at at 5:02PM, the moment the sun set on January 6, as artificial lights turned on, rendering the splatters more opaque.

The screen cap appears in the arrest affidavit for Josiah Kenyon, whom the FBI claims can be seen in these videos, beating cops with a table leg with nails exposed.

The affidavit reveals that the FBI first got a tip on January 9 in response to photos of Kenyon released in some of the earliest Be On the Lookout photos released. By April 6, the FBI had obtained positive ID for Kenyon based off that wanted poster from two family members of Kenyon.

And yet it wasn’t until last week that he was arrested, on charges of assault and damaging a $41,315 Capitol window that make Kenyon a good candidate for a terrorism enhancement if he is ever convicted.

The affidavit makes clear that in the eight months since the FBI first identified Kenyon, they’ve been tracking his movements and spending from when he was in DC, perhaps to see if he had any accomplices. For example, the FBI pulled Metro surveillance video showing Kenyon entering the L’Enfant Metro station at 6PM, less than an hour after he was allegedly beating cops in the Tunnel and literally the moment that Muriel Bowser’s curfew went into effect on January 6. Further Metro surveillance video shows him getting off the Metro in Franconia-Springfield at 6:48PM.

Still, it’s hard to believe the process of tracking his movements on January 6 took eight months.

What may have taken eight months, however, was the replacement of the CCTV cameras in the Tunnel. The release of this screen cap, after all, shows how over the course of several hours on January 6 the rioters made the camera — a camera surveilling the Tunnel through which Joe Biden would walk, two weeks later, to be sworn in as President — almost useless.

The release of these videos not only make clear the assaults captured by the cameras on the day of the insurrection. They also show how to render them useless.

That may be one of the reasons supporters of the insurrection are demanding all the video be released.

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Rudy’s Phones Defy Guarantees We’d Know of an Investigation into Trump

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I’m certain, when people assert that if DOJ were investigating Donald Trump, there would be some visible sign, they’re wrong.

I say that because I’m among the people who have followed the proceedings surrounding the Special Master review of Rudy Giuliani’s phones most closely. And I can’t even tell you what the status of that review is, much less whether DOJ obtained warrants for phone-based content for investigations beyond the foreign influence-peddling investigation for which the phones were first seized.

I’m not saying that has happened. I’m saying that if it had happened, none of us would know.

We know Rudy was Trump’s key facilitator in several other crimes Trump committed besides the foreign influence peddling described on the warrants: both obstruction of the Mueller investigation and Trump’s attempt to overthrow the election. There is already public evidence that Rudy would be a subject in any investigation into both those crimes. After all, he (and his current lawyer) dangled a pardon in an attempt to buy Michael Cohen’s silence in April 2018, and in the days after the insurrection, Rudy appears to have been in contact, using his phone, with a Proud Boy associate, James Sullivan, who coordinated with some of the perpetrators.

If Rudy were a subject in these investigations, prosecutors could obtain the content of his phones with no public notice. The people keeping that secret would be the same people who kept the warrants targeting his cloud accounts in 2019 secret for 18 months, and the same people who kept warrants targeting Cohen secret for three months, including one of the very same prosecutors, Nicolas Roos.

Before I explain what we know about Rudy’s phones, let me explain what we learned from Michael Cohen’s investigation, Rudy’s predecessor as Trump’s fixer whose phones got seized by SDNY (Cohen’s criminal docket is here and the Special Master docket is here).

The very first warrant targeting Michael Cohen — a warrant for his Google email that Mueller’s team obtained on July 18, 2017 — described how he set up Essential Consultants not for real estate purposes, as he had claimed to his bank, but instead to pay off Stormy Daniels. But the campaign finance crime that Cohen eventually pled guilty to was not among the crimes listed on that original warrant. Instead, the warrant focused on his lies to his bank, which would be included in his eventual charges, and foreign agent charges, which were not. It wasn’t until April 7, 2018 that the hush payment was included in a warrant for the campaign finance crime to which Cohen eventually pled guilty. Importantly, that warrant, obtained by SDNY, asked to access content obtained with most (but not all) of the warrants targeting Cohen up to that date (the exception was a warrant for Cohen’s Trump Organization email). Those warrants included:

What that April 7 warrant asked to do, then, was to access three devices on which Cohen’s previously-seized content was stored, but to do so in search of evidence of  campaign finance crimes not covered by the earlier warrants. (SDNY had expanded the crimes included on the warrants once already in February 2018.) It was only two days later, when SDNY executed searches on Cohen’s residences and phones, that anyone would discover that the government had shown probable cause to obtain warrants targeting Trump’s personal lawyer for crimes including conspiracy, lying to a bank, and campaign finance violations. It was over a year later before the foreign agent warrant searches were publicly disclosed.

This process offers several lessons for this discussion about Rudy’s phones and therefore for discussions about whether DOJ is investigating Trump. First, the government can — and did in the case of two of Donald Trump’s personal lawyers — obtain probable cause warrants without news of the warrants leaking. It’s only when the government conducts an overt search that an investigation would become public. In the interim, and even after the overt search, the government can simply conduct a filter team review of the seized material and store it at FBI. If prosecutors find probable cause to access the already collected content for different crimes, they can do that. They just need to get another warrant. In Michael Cohen’s case, they did that twice.

These three posts — one, two, three — explain how what we’ve learned of the searches on Rudy thus far; this is the docket for the Special Master review of Rudy’s phones).

They show that the government is currently in possession of the contents of Rudy’s email and his iCloud account from roughly May 1, 2018 (three months before the August 1, 2018 start date of the warrants targeting his phone) through November 4, 2019. The FBI did a filter team review of this content that was almost completed in April when they seized Rudy’s phones. So not only has FBI been reviewing that content for evidence of illegal foreign influence peddling with Ukraine since April, if SDNY or some other unit of DOJ could show probable cause that those emails or that iCloud content probably included evidence of other crimes, they could have obtained and executed a search warrant for that, too. We wouldn’t know if they had.

That information would slightly post-date the period in April 2018 when Rudy Giuliani’s (and Steve Bannon’s) own current lawyer, Robert Costello, was writing Michael Cohen implying that Trump would pardon him to buy his silence; because those conversations were with a then-third party, Costello,  and preceded the time Rudy was formally representing Trump, they likely would not have been filtered. The discussions that Rudy Giuliani had with Paul Manafort’s attorney in fall 2018 that led Manafort to renege on his cooperation agreement would be covered in that time period, though probably would have been filtered as privileged. Discussions Rudy had with Manafort about Ukraine when he was in prison likely would not be privileged.

If Lev Parnas’ redaction fail is to be believed (and thus far his claims have been utterly consistent with what prosecutors and Judge Paul Oetken have said), on April 13, 2021, DOJ also obtained historic and prospective cell site data for Rudy, as well as Victoria Toensing. While this was probably done to pinpoint the location of the phones targeted in the overt search conducted on April 28, in Rudy’s case that cell site data might have useful information about where Rudy was during or in the aftermath of the January 6 attack. (This is likely to be a fairly circumscribed time period tied to specific events shown in the still-sealed affidavit, but when Mueller obtained historic cell location data on Roger Stone in 2018, it covered a five month period.) This warrant, covering whatever period, would also provide information about with whom Rudy was in contact, though the government would have had some of that without even requiring a warrant.

It’s Rudy’s phones where things begin to get interesting. The FBI seized 16 devices from Rudy. Once he got to review the material extracted from his phones, Rudy claimed that the content dates back to 1995, though the government relayed that Special Master Barbara Jones reported that the bulk of the data dates to 2010 and later. Both Rudy and Toensing pointed to the vast scope of initial data obtained and asked Jones to limit her review to the materials dated within the scope of the warrant, which for Rudy is August 1, 2018 through December 31, 2019. The government responded that this would put Jones in the role of conducting not a privilege review, but also a responsiveness review, something which is a clear government role.

The Letters conflate the scope of the Special Master’s review for privileged material with the scope of the Government’s eventual review for material responsive to the Warrants. The Letters present extensive argument concerning only the latter, yet seek relief concerning the former. That is, the Letters contend that the Government’s search for responsive materials must conform to certain limits, then leap from that conclusion to request limits on the Special Master’s initial screening for privileged items. (See Giuliani Let. 4-24 (arguing Government can review only materials dated August 1, 2018 to December 31, 2019); id. at 1, 25 (requesting order that Special Master review only materials from the same period)). The Letters thus ask the Special Master to conduct a responsiveness review: To identify and withhold from Government investigators documents that are in no way privileged, based on a determination that they fall outside the scope of the Warrants. Neither the Warrants, nor this Court’s order appointing the Special Master, contemplate that an arm of the Court, rather than Government investigators, would conduct such a review. (See, e.g., Dkt. 25 (order appointing Special Master)). The Letters’ attempt to limit the materials to which investigators will have access thus appears to be an attempt to relitigate Giuliani’s and Toensing’s meritless efforts to limit the search contemplated by the Warrants ex ante, which this Court already rejected. (See Dkt. 20 at 3-6 (Court rejecting motions for pre-charge (indeed, pre-search) suppression and return of property)).

The government noted that under the terms of the (known) warrants, they are entitled to anything created, accessed, or deleted in that time frame (the government knows from the Parnas investigation that he deleted information from his iCloud in 2019 and Parnas predicted that Rudy and Toensing did as well). And so the government generously offered to have Special Master Jones limit her privilege review to files created on or after January 1, 2018, arguing that such a limitation is akin to the initial scoping that FBI would do.

SDNY further argued that there is no basis, at this time, to delete any of the older material, because the government might later discover that the material is actually responsive to the investigation.

This Court should not, however, grant the Letters’ requests to destroy or return any data at this time. The Court has already rejected motions for exactly that relief. (See Dkt. 20 at 3-6). Moreover, the Government is entitled to retain a complete copy of the seized data, so that it can authenticate any portion of the data ultimately offered in evidence. See Ganias, 824 F.3d at 215. Data that clearly predates January 1, 2018 should thus simply be put aside, and not reviewed by the Special Master or the Government. It may be that the Government’s eventual review of the materials post-dating January 1, 2018 reveals reason to believe that some of the segregated material is in fact responsive. If that is so, then the Government would have reason to search it—just as an FBI agent might return to that 2013 filing cabinet if his search of other files revealed that documents in the searched office were often filed under the wrong dates. At that point, the Government could then request the privilege review which it is now willing to forego for efficiency’s sake.

Without asking for this explicitly, DOJ’s argument had the effect of asking that Jones conduct a privilege review of content that includes the foreign influence peddling for which SDNY showed probable cause occurred between August 1, 2018 and December 31, 2019, but also content that would cover the entirety of the time that Rudy Giuliani was helping Trump obstruct the Mueller investigation and the entirety of the time that Rudy played the leading role in helping Trump attempt to overthrow an election.

As I have shown, the government sought (and is paying for) a Special Master review in this case because they have reason to believe, presumably based on their earlier search and the investigation into Parnas, there are crime fraud-excepted communications in this content. This very same Special Master, Barbara Jones, provided SDNY with a way to access to Michael Cohen’s communications discussing a campaign finance crime with Trump, and SDNY seems to believe they will obtain communications of Rudy discussing crimes with Trump, as well.

Let me interject and note that Judge Paul Oetken knew of the earlier search on Rudy’s cloud content — indeed, he authorized the gag keeping it secret. And in the 18 months between that search and the time Rudy got notice of it, Oetken likewise issued orders that helped the government cordon off parts of the investigation, such as the initial foreign influence peddling charge against Parnas and Igor Fruman tied to their efforts to fire Marie Yovanovitch, until such time as SDNY was able to access the information in question. That is, Oetken has been persuaded to allow SDNY to protect their investigation into Rudy, even during a period when Billy Barr was actively trying to thwart it, and part of that involved keeping warrants secret not just from the public, but from Rudy, as well.

If SDNY or some other component of DOJ obtained additional warrants for this same content, Oetken would undoubtedly know of it and probably would have had to approve it.

Whether or not there are other warrants and whether or not Oetken knows of them, though, he ruled to give the government access to the content that spans Rudy’s involvement in Trump’s obstruction, his own foreign influence peddling, as well as Rudy’s lead role in attempting to overthrow the election. In mid-September, Oetken ordered Jones to limit her review to materials post-dating January 1, 2018, which is tantamount to ordering her to include in her review everything covering all the potential Trump-related exposure that might be under investigation. And he explicitly denied, for a second time, Rudy and Toensing’s request to delete or return everything else.

That means that at the end of Special Master Jones’ review, the government will have all the unprivileged or crime fraud-excepted contents from Rudy’s 16 devices covering the period when he helped Trump obstruct justice, when he solicited campaign help from foreigners, and when he attempted to overthrow the election (as well as any pardon-related discussions from the post-election period). That doesn’t mean they’ve gotten warrants targeting that content. We would not know whether they had, one way or another. But the content would be available, having already undergone a privilege review, if they did get those warrants.

What we do know is this: Of 2,226 items found on seven of Rudy’s 16 seized devices reviewed by Jones thus far, he claimed privilege over just three items. But even with respect to his privilege claim over those three items, Jones has reserved judgment, meaning she may doubt his claim they can be withheld (perhaps because they are crime fraud-excepted).

The Government has provided Seized Materials from 16 electronic devices seized from Mr. Giuliani. On September 28, 2021, I directed that Mr. Giuliani complete his review of the data contained on seven of these devices by October 6, 2021, which was later extended to October 12, 2021. These seven devices contain 2,226 items in total dated on or after January 1, 2018. Mr. Giuliani designated 3 items as privileged, and I am reserving decision on those 3 items. The remaining 2,223 items have been released to the Government.

Additional documents for review have been assigned to counsel for Mr. Giuliani, with the next set of designations due to me on November 5, 2021.

So as of a month ago, the government had started getting materials — covering the period from January 1, 2018 through April 21, 2021 — from Rudy’s phones.

Jones and her staff were able to conduct privilege review on that content over two weeks time, and they were supposed to have had a second tranche of materials to review a month ago, meaning they likely have reviewed an even larger quantity of material since.

But that’s it! That’s all we know. Jones has reported less frequently than she did during her Cohen review, though assuming she will issue monthly reports now that she is reviewing in earnest, one should be due shortly.

We don’t know how much of the content on Rudy’s phones is evidence of a crime and how much is evidence of drunken blathering to reporters. We don’t know if any entity of DOJ has obtained warrants for those other Trump crimes in which Rudy was centrally involved. We don’t know why Jones has reserved judgement on the few privilege claims that Rudy has made thus far, six months into a Special Master review.

We know just two things. First, if there is evidence of crimes on Rudy’s 16 devices, DOJ will have a way of getting to it. And we would not have anyway of knowing that they had.

Update: In related news, a pre-taped interview I did for NPR was on Weekend Edition this morning.

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Release the Kraken!! Two Degrees of Donald Trump at the East Doors

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It was probably happenstance that Jimmy Haffner, who was arrested the other day for assaulting the cops guarding the East door of the Capitol on January 6, met “Sidney FRICKIN’ Powell” while she was on a bus tour spreading the Big Lie. The FBI included a picture of him apparently pictured with Powell (her face is redacted because she has not been arrested) purportedly to add validation for their identification of him.

The rest of his networking, however, seems absolutely central to the evidence the government is collecting to explain how the Proud Boys, the Oath Keepers, and a mob led by Alex Jones all converged on the East steps of the Capitol just before it was breached, with the involvement of a number of Marines.

As the FBI explains, Haffner and his buddy Ron Loehrke — who lived in Washington State on January 6 but both of whom have moved since — were recruited to go to DC by then head of the Proud Boys in the Northwest, Ethan Nordean. On December 27, the complaint explains, Nordean texted Loehrke saying he wanted him “on the front line” with him. In response, Loehrke told Nordean he was bringing three “bad mother fuckers” with him.

Loehrke and Haffner’s phones were in contact 106 times between December 19 and January 7. Sometime on January 5, Nordean’s phone called Loehrke’s.

On the morning of January 6, Loehrke showed up at the Washington Monument, where Telegram chats sent the day before said the Proud Boys were meeting up. He and Haffner marched with Nordean and others towards the Capitol (though Haffner was pretty disciplined in keep his face hidden). Loehrke helped people over the initial barricades and waved people forward. He later encouraged rioters: “Don’t back down, patriots! The whole fucking world is watching. Stand the fuck up today!”

Both Loehrke and Haffner then moved to the East side of the Capitol, where Joe Biggs, the Oath Keepers, and Alex Jones would also go. The two men helped dismantle the barricades that enabled a mob to crowd the stairs in advance of the East doors being opened. “Let’s go! Get in there!” Loehrke exhorted.

The government alleges that Haffner sprayed the officers guarding the East doors with some kind of aerosol, which played a key role, they suggest, in the cops losing control of that entrance. Minutes later, the rioters breached the Capitol.

The arrest affidavit doesn’t say it, but Joe Biggs and the Oath Keepers were in the immediate vicinity as this happened; Alex Jones had been or was just yards away riling up the crowd he had lured there by falsely claiming that Trump would speak there, chanting “1776!” with his blowhorn.

The affidavit explains that Loehrke went to Merkley’s office once he breached the Capitol; it doesn’t say whether he met with Zach Rehl there.

There are lots of other details the FBI doesn’t provide either: the time on January 5 when Nordean called Loehrke, the hotel in downtown DC that Haffner checked into on January 5, the hotel at which Loehrke’s tattooed hand was videoed outside. It doesn’t reveal whether Haffner or Loehrke were at a meeting on January 5 that Nordean and Biggs — but not their alleged Proud Boy co-defendants — attended.

Even without those details, however, the arrest affidavit strongly suggests that guys Nordean personally recruited to attend the January 6 riot not only knew to converge on the East doors at the same time that Biggs, the Oath Keepers, and Jones were also doing so, but played a key role in successfully breaching that door.

Update: Here’s a video of Loehrke’s activities that day (look for his maroon hood) put together by online researchers. They also note he’s a Marine, just like many of the other key figures behind the breach of the East doors.

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Ten Things TV Lawyers Can Do Rather than Whinging about Merrick Garland

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I continue to have little patience for the people–many of them paid to expound as lawyers on TV–who spend their time whinging that Merrick Garland is not moving quickly enough to hold Trump accountable rather than spending their time doing other more productive things to protect democracy.

I’m not aware that any of these people has tracked the January 6 investigation closely enough to name those one or two degrees away from the former President who have been charged or are clearly subjects of investigation. Similarly, I’ve seen none do reporting on the current status of Rudy Giuliani’s phones, which after a Special Master review will release a bunch of information to prosecutors to use under any warrant that DOJ might have. Indeed, many of the same people complain that Trump has not been accountable for his Ukraine extortion, without recognizing that any Ukraine charges for Trump would almost certainly have to go through that Rudy investigation. The approval for the search on Rudy’s phones may have been among the first decisions Lisa Monaco made as Deputy Attorney General.

It’s not so much that I’m certain DOJ would prosecute Trump for his serial attempts to overthrow democracy. There are tea leaves that DOJ could get there via a combination of working up from pawns who stormed the Capitol and down from rooks referred from the January 6 Commission. But I’m more exasperated with the claims that there were crimes wrapped with a bow (such as Trump’s extortion of Ukraine) that Garland’s DOJ could have charged on March 11, when he was sworn in. Even the Tom Barrack prosecution, a Mueller referral which reportedly was all set to indict in July 2020, took six months after Biden’s inauguration before it was indicted. The January 6 investigation started less than eleven months ago; eleven months into the Russian investigation, Coffee Boy George Papadopoulos had not yet been arrested and he was still months away from pleading guilty, on a simple false statements charge. We have no idea how much deliberate damage Billy Barr did to other ongoing investigations arising out of the Mueller investigation, but his public actions in the Mike Flynn, Roger Stone, and Paul Manafort cases suggests it is likely considerable. As for the January 6 investigation, as I’ve noted, it took nine months from the time FBI learned that a Capitol Police Officer had warned Jacob Hiles to delete his Facebook posts until the time DOJ indicted Michael Riley on two counts of obstruction. To imagine that DOJ would have already indicted Trump on anything he might be hypothetically under investigation at this point, particularly relating to January 6, is just denial about how long investigations take, even assuming the subject were not the former President with abundant access to free or RNC-provided legal representation.

It’s not that I don’t understand the gravity of the threat. I absolutely share the panic of those who believe that if something doesn’t happen by midterms, Republicans will take over the House and shut every last bit of accountability down. I agree the threat to democracy is grave.

But there is no rule that permits DOJ to skip investigative steps and due process simply because people have invested in DOJ as the last bulwark of democracy, or because the target is the greatest threat to democracy America has faced since the Civil War. DOJ investigations take time. And that is one reason why, if people are hoping some damning indictment will save our democracy, they’re investing their hopes in the wrong place, because an investigation into Trump simply will not be rolled out that quickly. Even if Trump were indicted by mid-terms, the Republicans have invested so much energy into delegitimizing rule of law it’s not clear it would sway Fox viewers or even independent voters.

I can’t tell you whether DOJ will indict Trump. I can tell you that if they do, it will not come in time to be the one thing that saves democracy.

And so, because I believe the panicked hand-wringing is about the least productive way to save democracy, I made a list. Here are ten way that TV lawyers could better spend their time than whinging that Merrick Garland hasn’t indicted Donald Trump yet:

  1. Counter the propaganda effort to treat the Jan 6 defendants as martyrs.
  2. Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years.
  3. Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past.
  4. Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect.
  5. Emphasize the prosecutions/charges/investigations that have or are occurring.
  6. Describe the damage done by Trump’s pardons.
  7. Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law.
  8. Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary
  9. Explain how shoddy John Durham’s indictments are.
  10. Focus on the legal threats to democracy in the states.

Counter the propaganda effort to treat the Jan 6 defendants as martyrs

Whether or not Trump is ever charged with crimes related to January 6, the right wing noise machine has already kicked into gear trying to make it harder to prosecute other culprits for the January 6 riot. They’ve done so by falsely claiming:

  • The event was just a protest like the protests of Brett Kavanaugh’s confirmation, a claim DOJ already debunked, in part by showing that the Kavanaugh protestors who briefly halted his confirmation hearing had been legally admitted.
  • They’re being treated more harshly than those who used violence at BLM or Portland protests. DOJ has submitted multiple filings showing that such claims are based on cherry-picked data that ignore the state charges many of these defendants face, the better quality of evidence against Jan 6ers (in part because they bragged about their actions on social media), and the more heinous goal of the protest involved.
  • Large numbers of non-violent January 6 are being held in pretrial detention. In reality, the overwhelming majority of those detained were charged either in a militia conspiracy or for assaulting cops. The exceptions to this rule are generally people (like Brandon Fellows or Thomas Robertson) who violated pretrial release conditions. Additionally, a good number of those accused of assaulting cops have been released.
  • January 6 defendants are subjected to especially onerous treatment in jail. Many of the conditions they’re complaining about are COVID restrictions imposed on all detainees (though often more restrictive for those who, like a lot of January 6 defendants, choose not to get vaccinated). And in an inspection triggered by January 6 defendant Christopher Worrell’s complaints, the Marshals determined that the other part of the DC jail violated Federal standards, though the part in which the Jan 6ers are held did not.
  • January 6 defendants are just patriots trying to save the country. In reality, of course, these people were attempting to invalidate the legal votes of 81 million Americans.

Again, all these claims are easily shown to be false. But far too many people with a platform are allowing them to go unanswered, instead complaining that DOJ is not doing enough to defend the rule of law. This sustained effort to turn the Jan 6ers into martyrs will achieve real hold unless it is systematically countered.

Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years

As noted above, after Proud Boy assault defendant Worrell complained about the treatment he received in DC jail, the Marshals conducted a snap inspection. They discovered that the older part of the DC jail, one housing other detainees but not Jan 6ers, did not meet Federal standards and have started transferring those detainees to a prison in Pennsylvania.

What has gotten far less attention is that problems with the DC jail have been known for decades. Even though the problems occasionally have gotten passing attention, in general it has been allowed to remain in the inadequate condition the Marshals purportedly discovered anew because a white person complained.

This is an example, then, when a white person has claimed himself to be the victim when, in fact, it’s yet another example of how brown and black people have less access to justice than similarly situated white people.

This development deserves focused attention, most of all because it is unjust. But such attention will flip the script that Jan 6ers are using in an attempt to get sympathy from those who don’t understand the truth.

Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past

There’s a lot of impatience that DOJ hasn’t simply charged January 6 defendants with sedition or insurrection.

Thus far, DOJ has chosen to use a less inflammatory and more flexible statute, obstruction, instead. Obstruction comes with enhancements — for threatening violence or especially obstructive behavior — that DOJ has used to tailor sentencing recommendations.

The wisdom of this approach will soon be tested, as several DC Judges weigh challenges to the application of the statute. If the application is overturned, it’s unclear whether DOJ will charge something else, like sedition, instead.

But DOJ probably chose their current approach for very good reason: because sedition is harder to prove than obstruction, and in the past, white terrorists have successfully beaten such charges. That’s true for a lot of reasons, partly because the absence of a material support statute makes association with a right wing terrorist group harder to prosecute.

A cable personality whom I have great respect for — NBC’s Barb McQuade — knows this as well as anyone, as she was US Attorney when a sedition conspiracy case against the Hutaree collapsed. In that case, DOJ had trouble proving that defendants wanted to overthrow the US government, the kind of evidentiary claim that DOJ will face in January 6 trials, even as currently charged.

There are real challenges to prosecuting white terrorism. Some education on this point would alleviate some of the impatience about the charging decisions DOJ has made.

Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect

In the period between the time Steve Bannon was referred to DOJ for contempt and the time he was charged, a number of commentators used the delay to explain what it takes to get an indictment (against a high profile political figure) that stands a chance of work; one good example is this column by Joyce Vance.

There have been and are numerous examples of similar delays — the Tom Barrack indictment and the Rudy Giuliani Special Master review are two — that offer similar teaching opportunities about the process and protections involved in indicting someone.

Due process takes time. And yet in an era of instant gratification, few people understand why that’s the case. If we’re going to defend due process even while trying to defend our democracy, more education about what due process involves would temper some of the panic.

Emphasize the prosecutions/charges/investigations against Trump that have or are occurring

Given the din calling for prosecution of Donald Trump, you’d think none of his associates had been prosecuted. As Teri Kanefield noted the other day, it would be far better if, instead of saying Trump had suffered no consequences for his actions, there was some focus instead on where he had.

Trump’s business is currently under indictment with multiple investigations into it ongoing. His charity was shut down and fined for self-dealing. Trump’s Inauguration Committee will be civilly tried for paying above market rates to Trump Organization.

His Campaign Manager, his National Security Advisor, his Coffee Boy, his Rat-Fucker, and one of his personal lawyers were found guilty of lying to cover up what really happened with Russia in 2016. Several of these men (as well as a top RNC donor) also admitted they were secretly working for frenemy countries, including (in Mike Flynn’s case), while receiving classified briefings as Trump’s top national security aide. Trump’s biggest campaign donor, Tom Barrack, is being prosecuted for using the access he purchased to Trump to do the bidding of the Emirates. Another of Trump’s personal lawyers, Rudy Giuliani, is under investigation for the same crime, secretly working for another country while claiming to represent the interests of the President of the United States.

The sheer scale of this is especially breathtaking when you consider the projection the GOP has — successfully — focused on Hunter Biden for similar crimes. Even with years of effort and help from Russia, the GOP has not yet been able to prove that the President’s son’s influence peddling or potential tax accounting violated the law. Yet the GOP continues to focus on him relentlessly, even as the long list of Republicans who admit to the same crime continues to grow.

Trump has already proven to be the most corrupt president in some time, possibly ever. And instead of relentless messaging about that, Democrats are complaining about Merrick Garland.

Describe the damage done by Trump’s pardons

One reason why it’s hard to focus on all those criminal prosecutions is because Trump pardoned his way out of it. With the exception of Michael Cohen and Rick Gates, all the people who lied to cover up his Russian ties were pardoned, as was Steve Bannon and others who personally benefitted Trump.

Perhaps because these pardons happened in the wake of January 6, Trump avoided some of the shame he might otherwise have experienced for these pardons. But for several reasons, there should be renewed attention to them.

That’s true, for starters, because Trump’s pardons put the entire country at risk. By pardoning Eddie Gallagher for war crimes, for example, the US risks being treated as a human rights abuser by international bodies. The military faces additional disciplinary challenges. And those who cooperated against Gallagher effectively paid a real cost for cooperating against him only to see him escape consequences.

Paul Manafort’s pardon is another one that deserves renewed attention. That’s true not just because the pardon ended up halting the forfeiture that otherwise would have paid for the Mueller investigation, the cost of which right wingers claimed to care about. It’s true because Trump has basically dismissed the import of industrial scale tax cheating (even while right wingers insinuate that Hunter Biden might have made one error on his taxes). And finally, it’s true because Trump made an affirmative choice that a guy who facilitated Russia’s effort to undermine democracy in 2016, sharing information directly with someone deemed to be a Russian spy, should not be punished for his actions.

Finally, there should be renewed attention on what Trump got for his pardons. Did Steve Bannon and Mike Flynn pay central roles in January 6 in exchange for a pardon?

The US needs some means to prohibit such self-serving pardons like Trump pursued. But in the meantime, there needs to be some effort to shame Trump for relying on such bribes to stay out of prison himself.

Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law

Donald Trump pardoned Steve Bannon for defrauding a bunch of Trump loyalists. According to very recent reporting, Sidney Powell is under investigation (and being abandoned by her former allies) on suspicion she defrauded the thousands of Trump supporters who sent money to support her election conspiracy theories.

Meanwhile, the Republican Party continues to dump money into protecting Trump for his own crimes, even as Republicans lose races that could have benefitted from the money.

However, some RNC members and donors accused the party of running afoul of its own neutrality rules and misplacing its priorities. Some of these same officials who spoke to CNN also questioned why the party would foot the legal bills of a self-professed billionaire who was sitting on a $102 million war chest as recently as July and has previously used his various political committees to cover legal costs. According to FEC filings from August, the former President’s Make America Great Again committee has paid Jones Day more than $37,000 since the beginning of the year, while his Make America Great

Again super PAC has paid a combined $7.8 million to attorneys handling his lawsuits related to the 2020 election.

“This is not normal. Nothing about this is normal, especially since he’s not only a former President but a billionaire,” said a former top RNC official.

“What does any of this have to do with assisting Republicans in 2022 or preparing for the 2024 primary?” the official added.

Bill Palatucci, a national committeeman from New Jersey, said the fact that the RNC made the payments to Trump’s attorneys in October was particularly frustrating given his own plea to party officials that same month for additional resources as the New Jersey GOP sought to push Republican Jack Ciattarelli over the finish line in his challenge to incumbent Democratic Gov. Phil Murphy.

“We sure as heck could have used $121,000,” Palatucci told CNN.

Loyal Trumpsters are the victim of one after another grift, and that should be emphasized to make it clear who is really taking advantage of them.

And one after another former Trump loyalist get themselves in their own legal trouble. One of the messages Michael Cohen tried to share in his testimony before going to prison was that “if [other Republicans] follow blindly, like I have,” they will end up like he did, going to prison. Hundreds of January 6 defendants — some of whom imagined they, too, might benefit from Trump’s clemency (they still might, but they’ll have to wait) — are learning Cohen’s lesson the hard way.

Kleptocracy only benefits those at the top. And yet Trump’s supporters continue to aggressively pursue policies that will make the US more of a kleptocracy.

It’s fairly easy to demonstrate the damage degrading rule of law in exchange for a kleptocracy is. Except average people aren’t going to understand that unless high profile experts make that case.

Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary

The Project Veritas scandal remains obscure and may never amount to charges against PV itself. Yet even as it has become clear that DOJ is investigating theft, key Republicans Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson are trying to shut down the investigation into that theft. Chuck Grassley’s efforts to do so are particularly noxious given that a long-term staffer of his, Barbara Ledeen, is a sometime co-conspirator of Project Veritas.

Republicans have undermined legitimate investigations into Trump, over and over, with little pushback from the press. This is an example where it would seem especially easy to inflict a political cost (especially since Grassley is up for re-election next year).

It would be far more useful, in defending rule of law, to impose political costs on undermining the investigations that commentators are demanding from DOJ than it is to complain (incorrectly) that such investigations aren’t happening. Merrick Garland (however imperfect) is not the enemy of rule of law here, Jim Jordan is.

Explain how shoddy John Durham’s indictments are

One of the complaints that David Rothkopf made in the column that kicked off my latest bout of impatience with the hand-wringing about Garland complained that Garland “is letting” Durham charge those who raise concerns about Trump’s ties to Russia, even while (Rothkopf assumes) ignoring Trump’s own efforts to obstruct the investigation.

We have seen that Garland is letting the highly politicized investigation of special prosecutor John Durham into the conduct of the Trump-Russia investigation continue (by continuing its funding). We therefore have the real prospect that those who sought to look into the Trump-Russia ties that both Mueller and Congressional investigations have demonstrated were real, unprecedented and dangerous might be prosecuted while those who actively sought the help of a foreign enemy to win an election will not be.

As I have noted, both of Durham’s indictments have been shoddy work, hanging charges on Twitter rants and other hearsay evidence.

And while there was some worthwhile criticism of the Michael Sussmann indictment (perhaps because he’s well-connected in DC), Democrats seem to take Durham’s word that Igor Danchenko — and not Christopher Steele or Russian disinformation — is responsible for the flaws in the dossier. Perhaps as a result, the legal experts who could point out how ridiculous it is to rely on a Twitter feed for a key factual claim have remained silent.

With such silence, it is not (just) Garland who “is letting [Duram’s] highly politicized investigation” continue unchecked, but also the experts whose criticism could do something to rein him in.

If the investigation is politicized — and it is — then Durham is a far more appropriate target than Garland.

Focus on the legal threats to democracy in the states

There has, admittedly, been deserved focus on the ways Republicans are chipping away at democratic representation in the states.

But that is where the battle for democracy is being fought. And in most of the states where Trump attempted to undermine the 2020 election, there are follow-on legal issues, whether it’s the investigation into the suspected voting machine theft in Colorado (including into a former campaign manager for Lauren Boebert), a seemingly related investigation in Ohio, or the effort to criminalize efforts to ease voting by seniors during the pandemic in Wisconsin.

Republicans are trying to criminalize democracy. That makes it all the more important to ensure that the call for rule of law remains laser focused on the criminal efforts to cheat to win, if for no other reason than to shame those involved.

The threat to democracy is undoubtedly grave. Republicans are deploying their considerable propaganda effort into legitimizing that attack on democracy (even while suggesting Biden has committed the kind of graft that Trump engaged in non-stop, classic projection).

In the face of that unrelenting effort, expert commentators who support democracy have a choice: They can defend the rule of law and shame those who have denigrated it, or they can spend their time complaining about the guy trying, however imperfectly, to defend it himself. The latter will make Garland less able to do his job, the former will help him do whatever he is willing and able to do.

Update: Added “suspected” to the PV bullet.

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