A White Board of the Sedition-Curious

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Contrary to what a lot of people imagine, I don’t keep visual representations — like some cork board with a bunch of strings attached — of the investigations I follow, not even the sprawling January 6 investigation. Instead, I just try to capture important developments here, where I can refer back to them. There are several such relationships unpacked in recent weeks.

Roger Stone and Stewart Rhodes bug out at the same time after insurrection

For example, a bunch of people have asked me what I make of the WaPo report based on video taken by some Danish journalists who were filming a documentary of Roger Stone on January 6.

As you read it, keep in mind that the Get Me Roger Stone video team was following Roger Stone during key periods of 2016, including at the RNC.

Mueller at least attempted — as Stone feared Mueller would in real time — to mine the video for clues about Stone’s activities. For example, in one of the same email chains where Stone told Randy Credico to “do a [Frank] Panta[n]gel[i],” he and Credico were panicking about what Get Me Roger Stone writer Morgan Pehme was saying about 2016.

So even assuming Roger Stone wasn’t engaged in his everyday type of performance when being filmed for these film-makers, he would be acutely aware of the legal hazards of having a documentary team following around while crimes were being committed.

That’s why the report is most interesting for the times when Stone made sure to ditch the camera team: at precisely the time of a key Proud Boy planning meeting, during a meeting that Joshua James may have reported in on, and as the riot unfolded at the Capitol.

For example, the videographers did not track Stone when he left the hotel at 9PM on January 5 with Sal Greco.

At about 8:50 p.m. on Jan. 5, after the Danish filmmakers had left him, Stone exited the Willard again with his bodyguard, off-duty New York City police officer Sal Greco, a live-stream video shows. Their destination was unclear, though Stone had said he had a 9 p.m. appointment to have his hair dyed.

Just minutes after that — just before 9:17 PM — Joe Biggs and Ethan Nordean were meeting with as-yet unidentified people putting together their plan for the riot.

Then there was a meeting with Bernie Kerik at 10AM at the Willard; hotel staff prevented videographers from watching that meeting.

The filmmakers told The Post that Stone appeared to change his plans after an encounter in the Willard lobby around 10 a.m. with Bernard Kerik, a former New York City police commissioner working in Giuliani’s command center at the hotel. The filmmakers began recording their conversation but were forced to leave by hotel staff. It is unclear what was said.

There’s good evidence that Joshua James checked in with Michael Simmons before and after that meeting.

Finally, Stone blew off the videographers from just before the Proud Boys kicked off a riot until almost the moment both Stone-related militias stood down.

At about 12:40 p.m., some ofStone’s guests left his suite. Stone’s team and the filmmakers agreed to separate for lunch and then reconvene two hours later. Stone planned to speak at a smaller rally near the Capitol later that afternoon.

But as the filmmakers ate in their hotel room, they saw news footage of a riot escalating at the Capitol. Around 2:30 p.m., Guldbrandsen headed out to capture the scene while Frederik Marbell, the director of photography, rushed to Stone’s room.

“Kristin Davis opened the door and said that Roger was taking a nap, so I couldn’t film,” Marbelltold The Post.

Outside the room, Marbell attempted to reach Stone by text message starting at 3:03 p.m. The messages went unanswered for 24 minutes, when Stone responded and offered to go to Marbell’s room.

By about 4 p.m., with the Capitol in chaos, Stone had still not arrived at Marbell’s room. Marbell returned to Stone’s room and began knocking. About five minutes later, room service arrived and Marbell snuck inside, he said.

“Roger was not taking a nap. He was on the phone with someone,” Marbell said.

Stone condemned the riot to the filmmakers at 4:18 p.m., saying: “I think it’s really bad for the movement. It hurts, it doesn’t help. I’m not sure what they thought they were going to achieve.

These are like Stone’s July 2016 meeting with Nigel Farage at the RNC: The stuff he knew well to and did hide from the camera. That’s where the sweet spot of Stone’s interactions are.

All that said, the report shows that key Stone actions the camera team captured exactly map the known central events of the planning for the insurrection.

For example, Stone put together a Friends of Stone Signal list, including Enrique Tarrio, once it became clear Trump had lost. That fed Flynn’s efforts.

He told them to monitor a group chat on the app Signal titled “F.O.S.” — friends of Stone. Tarrio of the Proud Boys was among the group’s members, a later shot of Stone’s phone showed.

[snip]

On Nov. 5, Stone drew up a Stop the Steal action plan that was visible on Alejandro’s laptop in footage captured by the filmmakers. As protesters were mobilized, the plan said, state lawmakers would be lobbied to reject official results. That tactic later proved central to Trump’s efforts.

Also that day, Stone had a 15-minute call with Flynn, the video shows. He told Flynn they could “document an overwhelming and compelling fraud” in each battleground state and urged him to spread the word on social media. That day, Flynn, Trump’s campaign and his sons Donald Jr. and Eric began using #StopTheSteal on Twitter.

Just after this mobilization, both Tarrio and Biggs started calling for civil war.

Later that month, Stone was coordinating with Mike Flynn and Ali Alexander.

Stone moved quickly after Trump’s defeat to help mobilize the protest movement that drew thousands to the nation’s capital on Jan. 6, 2021, The Post found. He privately strategized with former national security adviser Michael Flynn and rally organizer Ali Alexander, who visited Stone’s home in Fort Lauderdale, Fla., in late November 2020 for a dinner where Stone served pasta and martinis.

In the days and weeks leading up to Thanksgiving (when Flynn would be pardoned and Sidney Powell would, like Stone, start grifting off claims of a stolen election), Flynn and Powell were at Lin Wood’s properties in South Carolina, plotting away.

I was most struck, however, by the unsurprising news that in addition to Tarrio, Stone also used Signal messages with Stewart Rhodes.

Stone used an encrypted messaging app later in January to communicate with Oath Keepers leader Stewart Rhodes, who is also charged with seditious conspiracy, and Proud Boys leader Enrique Tarrio, the footage shows.

When I saw the description in James’ statement of offense of the way Rhodes bugged out of town immediately after the riot, I suspected that someone had instructed Rhodes that they were going to be hunted.

At Rhodes’s instruction, James, Vallejo, and others met Rhodes that evening at a restaurant in Vienna, Virginia. Rhodes discussed saving “the Republic” by stopping the transfer of presidential power and began to make plans to oppose the Inauguration on January 20, 2021, including by having people open-carry firearms at state capitols around the country.

While at the restaurant, Rhodes and James came to believe that law enforcement was searching for Rhodes and others after their attack on the Capitol. The group immediately returned to their hotel, collected their belongings, and met at a nearby gas station. There, James saw what he estimated to be thousands of dollars’ worth of firearms, ammunition, and related equipment in Rhodes’s vehicle. Rhodes divvied up various firearms and other gear among James and others who occupied a total of three cars. Rhodes left his mobile phone with one person and departed with another person in that person’s car so that law enforcement could not locate and arrest him. The three cars departed in separate directions.

James returned to Alabama with some of Rhodes’s gear, including firearms and other tactical equipment.

According to the videographers, Stone bugged out at about the same time and in the same frantic manner as Rhodes did.

As a mob ransacked the Capitol on Jan. 6, 2021, Roger Stone, Donald Trump’s longest-serving political adviser, hurried to pack a suitcase inside his elegant suite on the fifth floor of the Willard hotel. He wrapped his tailored suits in trash bags, reversed his black face mask so its “Free Roger Stone” logo was hidden, then slipped out of town for a hastily arranged private flight from Dulles International Airport.

“I really want to get out of here,” Stone told an aide, as they were filmed at the hotel by a Danish camera crew for a documentary on the veteran Republican operative. Stone said he feared prosecution by the incoming attorney general, Merrick Garland. “He is not a friend,” Stone said.

I would, at this point, be shocked if Rhodes and Stone hadn’t communally decided they needed to bolt. The remaining question I have, though, is whether someone in government — like Mark Meadows — alerted Stone or someone close to him that the FBI had switched immediately into investigative mode.

Sidney Powell springs for the sedition gaslight defense

In the same way that the Danish videographers confirm that Roger Stone and Mike Flynn were conspiring early in the post-election process, a recent BuzzFeed report reveals that Sidney Powell is now using her hard-won grift to pay for the defense of some Oath Keepers.

Since October, the organization, Defending the Republic, has been making monthly payments to the defense attorney for Kelly Meggs, a member of the militant group the Oath Keepers who is charged with seditious conspiracy for his role in the Jan. 6 Capitol riot. In an interview, the attorney, Jonathon Moseley, said he was aware of “at least three or four other defendants who have that arrangement” as well. The Oath Keepers’ general counsel, Kellye SoRelle, said that one of those others is the group’s founder, Stewart Rhodes. Offered the chance to deny that, his lawyers said they don’t discuss funding.

The revelation, which has not been previously reported, sheds new light on the activities of Powell’s organization, which was incorporated in December 2020 “to defend the constitutional rights of all Americans.” By last August, the group had raised nearly $15 million, according to its audited financial statements, and since then has raked in untold cash in donations and sales of merchandise, including T-shirts, drink coasters, and highball glasses adorned with the organization’s logo. Yet despite mounting legal scrutiny from federal and state investigators, Defending the Republic has disclosed almost nothing about where that money has been going.

[snip]

Powell’s involvement in the Oath Keepers case helps explain how some of the defendants, most of whom are far from wealthy, have been able to work with private attorneys who charge hundreds of dollars an hour rather than court-appointed lawyers. But it also raises questions as to who is dictating their defense strategy. In recent months, defense attorneys have raised many of the same far-flung conspiracies about COVID-19, antifa, and the deep state that appeared in lawsuits against the federal government filed by Powell herself.

As Ken Bensinger notes and I have traced, Jonathon Moseley has chosen to use court filings to engage in conspiracy theorizing rather than a more typical defense.

But on top of the futility of such an approach to actually obtain an optimal outcome, it serves to undermine rule of law more generally. Moseley’s approach is not all that different from the one that Powell herself used with Mike Flynn in attempting to blow up his prosecution by inventing false claims about the government. There was no evidence to support it, but it fed the frothers.

Tellingly, Powell’s efforts did nothing but make Flynn’s outcome worse. Thus, the defense plan, such as it existed, served to undermine rule of law and then make it all go away with a Presidential pardon. I’ve long assumed that that was the hope for Kelly Meggs and Kenneth Harrelson (who has adopted a similarly conspiratorial defense approach): that they could stall through 2025 in hopes a Republican would pardon them for their alleged sedition.

On March 4, Judge Amit Mehta appointed Andrew Wise of Miller Chevalier as conflict counsel to inquire into conflicts between Moseley’s representation of Meggs and (at least in the civil suit) Stewart Rhodes). That’s likely to bring a review of compensation arrangements, which may lead to inquiries about what Powell is paying Moseley to do.

Interestingly, BuzzFeed suggests that Juli Haller, who represents Meggs’ wife Connie, but also Ryan Samsel, may be on this dole. There was a time when Samsel looked like he might have considered flipping but that time is long gone.

Roger Stone’s pardon grift

And now, having covered Roger Stone’s Stop the Steal grift and Sidney Powell’s Defending the Republic grift, we come to Stone’s pardon-selling.

The Daily Beast adds to the earlier WaPo report (the first item here) that addressed all the pardons Roger Stone pitched Trump to make in the days between when he bolted from DC quickly and the day any such power expired. It notes that in mid-January 2021, Stone was playing all sides of the Florida scandal that engulfs Matt Gaetz.

It’s already known that Stone lobbied for pardons for both Gaetz and Greenberg in the waning days of the Trump administration. But it wasn’t known that Stone also advocated for a pardon for this third man connected to Gaetz and Greenberg: Stephen Alford, a serial fraudster from the Florida panhandle.

That development was first revealed by The Washington Post in a draft memo published earlier this month. But the Post report didn’t mention Alford—his name only appears in a document the Post obtained and uploaded online—and the link hasn’t been explored.

Two months after Stone advocated for Alford’s absolution, that allegiance dissolved when Alford became Gaetz’s scapegoat for the investigation. (Stone also eventually blasted Alford as part of the “deep state.”)

Just weeks before, however, Stone was in Alford’s corner, lobbying for a pardon.

Much of this is just scammy Florida politics. I’m interested in two details of this.

First, one of the ties TDB did find between Alford — the guy who attempted to extort Gaetz’s dad — and Stone goes through Oleg Deripaska.

According to a person with direct knowledge of the events, however, Alford had one powerful friend: A Republican lobbyist close to Stone.

Weeks after Alford’s pardon request was declined, that lobbyist shared some more information: Matt Gaetz was in trouble. And the lobbyist, this person said, had the details, including images of Gaetz with young women at a sex party.

While it’s unclear how the lobbyist—an associate of Oleg Deripaska—came into this information, Stone had by that time known about the Gaetz allegations for months; Greenberg had told Stone all about their involvement with a 17-year-old, both over text messages and in a confession he drafted at Stone’s request, as part of the pardon process.

It didn’t take long for Alford to cobble together a plan—and it was a doozy: He would secure Gaetz a presidential pardon in exchange for $25 million, which Alford would supposedly use to repatriate an FBI agent taken hostage in Iran who has long been considered dead.

TDB then describes how this plan, involving a lobbyist with ties to Deripaska, was behind the campaign against the NYT story on Gaetz’ legal woes.

When The New York Times broke the investigation in late March last year, Gaetz used Alford’s ploy as ammo. He fired off a tweetstorm, claiming the Times report was a “planted leak” designed to torpedo an investigation into “criminal extortion” plot “to smear my name.”

The central figure in Gaetz’s narrative, however, wasn’t Alford; it was Alford’s lawyer, whose role was limited to holding the money in an escrow account while Alford negotiated the release.

That lawyer had one special characteristic: Three decades ago, he served as a DOJ prosecutor. And that fact equipped the narrative with a “deep state” hook—a Roger Stone special.

Gaetz doubled down that night on Tucker Carlson’s late-night Fox News talk show, explaining the convoluted “leaking” and “smearing” plot to a befuddled Carlson, who remarked that it was “one of the weirdest interviews I’ve ever conducted.”

The next day, Stone piped up to defend Gaetz, using the same language.

And I’m interested in that because Glenn Greenwald was another key player in this anti-NYT campaign, including as recently as December.

Click through for the details on Gaetz paying Stone until he stopped paying Stone.

Update: One more note about Stone’s plan for pardons. Unsurprisingly he pushed for pardons for Assange and Stone, and unsurprisingly he did so in the same terms that Greenwald did — as the best way to get back at the Deep State.

Hell yes ,I would pardon Julian Assange and Edward Snowden- they are persecuted because they exposed the same people who attempted the Russia Collusion Hoax, the Ukraine hoax the last phony impeachment and are now pushing you’re their new phony impeachment.

The plan is a telling document of how Stone exploited Trump’s narcissism and grievances to get things done. The UK Supreme Court just rejected Assange’s bid to appeal, so the initial extradition request will go to Priti Patel for approval (though he still has several avenues of appeal).

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Questions about the Proud Boys Superseding Indictment

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As noted here, DOJ charged Enrique Tarrio, along with the existing leadership conspiracy defendants and Dominic Pezzola, This is just the second superseding indictment against the key Proud Boys. And while it’s good that Tarrio was finally included and there are hints of interesting coordination, unlike with the Oath Keepers conspiracy, where each superseding indictment pointed to a relentless march in one direction, where the Proud Boy investigation is heading is far less clear to me.

For now, I’ll assume that’s simply because they’re holding their cards close.

Who is missing

My first question pertains to the non-inclusion of certain people in this indictment.

The first is William Pepe, who had been charged with Dominic Pezzola on the indictment that got consolidated with this one. He has either flipped (which would be especially noteworthy given that he is represented by John Pierce), or he’s just sitting out there in a conspiracy with himself.

Another person not included here is Ron Loerkhe. With Jimmy Haffner, he was instrumental in breaching the East side of the Capitol and seems to have provided military structure to the attack. The two of them remain charged only by complaint and in February DOJ got a 3 month continuance on their case.

A third is Aaron Whallon-Wolkind, a close associate of Zach Rehl’s who kibbitzed the attack from Philadelphia that day. He was raided back in October, seemingly suggesting he too might get charged. The indictment doesn’t charge him. It also leaves out some of his statements that were in earlier court filings.

Who is cooperating and who is not

Thus far, there is only one overt cooperator in the Proud Boy cases: Matthew Greene, the former co-defendant of Dominic Pezzola (who has been moved onto this indictment) and Pepe (who has disappeared).

There are three senior Proud Boys — named as Person 1, Person 2, and Person 3 — whose status remains unknown. All three had key leadership positions. And they presumably were involved in a video chat Tarrio scheduled for December 20 to discuss Person 3’s comment that, “most of the protest will be at the capital building given what’s going on inside.” Person 1 is almost certainly Jeremy Bertino, who lives in SC; a number of well-informed people believe Person 2 is Wolkind. [h/t CH]

There are other Proud Boys who could be included in this indictment but who aren’t. Dan “Milkshake” Scott got a continuance in February for 120 days; that filing stated that he and the government had not yet even started plea negotiations. Joe Biggs’ co-travelers on the Arthur Jackman indictment are all still charged individually, even though two of them were literally touching Biggs at key moments during the day; the government is only now sorting through conflicts posed by John Pierce’s representation of three of them that would have to precede any plea discussions. Zach Rehl’s co-travelers also remain charged by complaint (and just misdemeanors, too); in February the government got a continuance until April. Jeff Finley, who also with Rehl and the others for part of the day, got a continuance in February until late March, to allow for “continued discussions about the case.” [Corrected to note Finley is a PB] Gabriel Garcia, who seemed to be one of the most useful people reporting back so others could coordinate from outside the riot, seems headed for trial by himself.

Father Jeremy and son Jeffrey Grace remain in uncertain status, too. After dad got busted for paling around with Proud Boys last summer, they’ve been in flux but still just charged (not even with each other!) with trespassing. In February Jeffrey’s case got continued until St. Patricks Day and Jeremy’s got continued to April.

Meanwhile, on Friday, Ricky Willden set a change of plea hearing for April 7, pretty far in advance as these things go. Because he was charged directly with indictment, it’s not clear what the government knows, but he has ties to the Proud Boys and others.

The inconsistent references

In addition to the three Person-Numbers, this indictment refers to people by all manner of convention.

It names Stewart Rhodes in describing the meeting he had with Tarrio in a parking garage after Tarrio was released from jail on January 5.

Then there are multiple people described as “an individual whose identity is known to the grand jury,” the most interesting of whom is the person who shared a 9-page document about occupying key buildings in DC.

But that’s also the way the indictment describes Ryan Samsel before explaining that he, “put one arm around BIGGS’s shoulder and spoke to him” before be broke through the first barrier in front of the Capitol. On Friday, Jia Cobb (who took over the Samsel case from Tim Kelly when several people were added), ordered Samsel transported from the State Jail in Pennsylvania he had been in to a the Federal jail where DC jail residents had been moved to. Since Samsel has been charged, there’s no reason not to name him, just as Rhodes is named.

Where is Trump

As I noted earlier, there’s no mention of Enrique Tarrio’s visit to the White House in December. The White House claimed that was no big deal, and maybe it is.

But this indictment also leaves out all mention of Proud Boys, including Tarrio, playing on Trump’s Stand Back and Stand By comment.

Where is the obstruction charge?

In some ways, this indictment charges more aggressively than the earlier one. As other indictments have, it swaps the 18 USC 371 conspiracy (with a maximum sentence of 5 years) for an 18 USC 1512(k) conspiracy (with a maximum sentence of 20 years).

It charges all the men for the assaults originally charged just against Donohoe and Pezzola.

But it doesn’t include an obstruction charge for Tarrio, in spite of his explicit efforts to prevent others from cooperating, recordings of which were publicly released.

Where does this go from here?

I’ve been expecting and predicting this indictment since December 28. But for the life of me, I’m not sure where DOJ expects to go from here.

This indictment describes the numbers of people massed at several stages of the operation. 65 members on the Ministry of Self Defense (MOSD) Members Group. 90 people in the New MOSD members group created on January 4. Approximately 100 Proud Boys who met at the Washington Memorial the morning of the attack. Donohoe bragging at 12:00PM on January 6 that “WE ARE WITH 200-300 PBS,” just before they kicked off the riot.

Perhaps this framework is meant to provide a way to implicate all those others, 300 people who agreed, by signing up, that they were following a plan that DOJ has now shown (and that Matthew Greene’s cooperation was designed to show) was a plan to occupy buildings from the start.

But otherwise, this still feels really dispersed, and the prosecution team (which consists of three visible members for the leadership conspiracy, including Erik Kenerson, Jason McCullough, and Luke Jones, and about four detailees from other offices for satellite cases; a fourth prosecutor who had been on the core cases, Christopher Berridge, left immediately after Greene pled) has a far harder caseload than the significantly larger team on the Oath Keepers.

Perhaps something will really start to crystalize as some of these continuances end in April. Or perhaps DOJ will be serially prosecuting Proud Boys for the foreseeable future.

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John Durham Says Election-Hack Victims Should Wait Until After the Election to Report Tips

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Even as Russia assaults a peaceful democracy (which invasion, in a separate filing, Durham calls, “recent world events in Ukraine”), John Durham suggests that a political campaign victimized by Russia should expect to wait until after the election before the FBI opens an investigation into a cybersecurity anomaly potentially implicating her opponent.

Durham even asserts that such a cybersecurity anomaly is not a cybersecurity matter, but instead a political one.

Almost six years after Trump’s request, “Russia are you listening,” was met with a renewed Russian attack on Hillary Clinton, John Durham continues to treat Hillary’s attempts to run a campaign while being attacked as a greater threat than that nation-state attack by Russia.

Durham’s latest contortions come in a response to Micheal Sussmann’s motion to dismiss the indictment.

Sussmann argued that the alleged lie he told (motions to dismiss must accept the alleged facts as true), could not have affected the single decision facing the FBI when he shared information about a DNS anomaly: whether to open an investigation or not.

Following the Supreme Court’s clear instruction in Gaudin, in order to assess the materiality of the false statement that Mr. Sussmann is alleged to have made, this Court must ask what statement he is alleged to have made to the FBI; what decision the FBI was trying to make; and whether the false statement could have influenced that decision. Here, even accepting all the allegations in the Indictment as true—and the evidence would prove otherwise—the only decision the FBI was trying to make was the decision whether or not to commence an investigation into the allegations of suspicious internet data involving the Trump Organization and Russian Bank-1. Ample precedent—and the Special Counsel’s own allegations in this case—make clear that Mr. Sussmann’s purported false statement did not influence, and was not capable of influencing, that decision.

Predictably and reasonably, Durham’s response cited the precedent that leaves it up to juries to determine whether something is material or not.

In any event, the defendant’s arguments on the materiality of his statement are also premature. The Supreme Court in Gaudin held that materiality is an essential element of Section 1001 that must be resolved by a jury.

As I noted back in October, “Prosecutors will argue that materiality is a matter for the jury to decide.”

Prosecutors also noted what I did: a long list of precedents about materiality that Sussmann cited in his motion are all post-trial challenges to materiality, not pretrial motions to dismiss.

The defendant cites to multiple cases where the Supreme Court and Circuit Courts have held that the false statements and misrepresentations at issue were immaterial as a matter of law. See Def. Mot. at 7-10. But critically, all of those cases involved post-conviction appeals or motions to vacate the conviction after the Government presented its case at trial. Accordingly, none of these cases support the defendant’s requested relief here – that is, that the court dismiss the Indictment before trial because it fails to sufficiently allege that the defendant’s false statement is material. What the cases do show is that courts have routinely declined to usurp the jury’s role in making the determination on whether a false statement is material.

For those two reasons, Sussmann’s motion to dismiss is unlikely to succeed, and should instead be viewed as an opening bid to frame his defense and establish issues for appeal.

Those two arguments are all Durham really needed to respond to Sussmann’s motion to dismiss. Instead of leaving it with responsible lawyering, however, Durham instead launches into an illogical attempt to criminalize tip reporting.

Take his attempt to dismiss Rodney Joffe’s real cybersecurity expertise. In the three months since he charged Sussmann, Durham belatedly (at Sussmann’s request) discovered how closely Joffe had worked with the FBI on other investigations. As Sussmann scoffed in an earlier filing, “The notion that the FBI would have been more skeptical of the information had it known of Tech Executive-1’s involvement is, in a word, preposterous.” Now that Durham has discovered the close ties between Joffe and the FBI, he claimed that that history of reliability was itself something the FBI needed to know.

Namely, as the defendant’s motion reveals (Def. Mot. at 18-19, fn. 8), Tech Executive-1 had a history of providing assistance to the FBI on cyber security matters, but decided in this instance to provide politically-charged allegations anonymously through the defendant and a law firm that was then-counsel to the Clinton Campaign. Given Tech Executive-1’s history of assistance to law enforcement, it would be material for the FBI to learn of the defendant’s lawyer-client relationship with Tech Executive-1 so that they could evaluate Tech Executive-1’s motivations. As an initial step, the FBI might have sought to interview Tech Executive-1. And that, in turn, might have revealed further information about Tech Executive-1’s coordination with individuals tied to the Clinton Campaign, his access to vast amounts of sensitive and/or proprietary internet data, and his tasking of cyber researchers working on a pending federal cybersecurity contract.

Durham’s claim that “learning” how much data Joffe had access to (which is something the FBI undoubtedly knew — it is surely the reason why FBI partnered with him, because the volume of data Neustar had made their observations more useful) would make them more skeptical of the DNS tip is nonsensical. In fact, elsewhere (in tracking all the YotaPhone requests in the US over a three year period), Durham treated it as presumptively reliable.

Plus, Durham made no mention here of one of a number of the other things he belatedly learned: that the September 2016 tip Sussmann shared with FBI General Counsel James Baker was not the only one Joffe had shared via Sussmann anonymously. He shared a tip anonymously during this same time period with DOJ IG. Durham has no way of knowing, either, whether those two were the only ones, but his revised theory of materiality depends on an anonymous tip like this one being unique.

Similarly, Durham struggled to explain (including by citing an inapt precedent) why the FBI would need to be told that Sussmann represented Hillary when, in notes of Baker’s retelling of the meeting, Bill Priestap wrote that Sussmann represented the DNC and Clinton Foundation.

As he did with Joffe, Durham tried to flip Sussmann’s expertise, arguing that the former prosecutor’s recognized qualification as a cybersecurity expert, something that would help him assess whether DNS data were anomalous or not, is precisely why the Perkins Coie lawyer needed to disclose he was working for Hillary.

In an effort to downplay the materiality of this false statement, the defendant asserts that the FBI General Counsel was aware that the defendant represented the DNC. See Def. Mot at 18. But the Government expects that evidence at trial will establish that the FBI General Counsel was aware that the defendant represented the DNC on cybersecurity matters arising from the Russian government’s hack of its emails, not that he provided political advice or was participating in the Clinton Campaign’s opposition research efforts. Indeed, the defendant held himself out to the public as an experienced national security and cybersecurity lawyer, not an election lawyer or political consultant. Accordingly, when the defendant disclaimed any client relationships at his meeting with the FBI General Counsel, this served to lull the General Counsel into the mistaken, yet highly material belief that the defendant lacked political motivations for his work.

There are many crazy assumptions built into this statement: that, had Sussmann identified Hillary as his client, it would have required him to reveal her motives as political rather than security-related to the FBI, breaching privilege; that reporting an anomaly potentially involving Trump after Trump had begged Russia to further hack Hillary would not be a sound decision from a cybersecurity standpoint; that researching the context of an anomaly, such as Alfa Bank’s ties to Putin, is not part of cybersecurity. Effectively, Durham has unilaterally decided that pursuing this anomaly was a political act, with no basis in law or fact.

Which is how Durham espoused the claim that the FBI, facing an unprecedented attack by Russia on American elections in 2016, might have delayed investigation of a part of it that might have implicated one of the contestants.

The defendant’s false statement to the FBI General Counsel was plainly material because it misled the General Counsel about, among other things, the critical fact that the defendant was disseminating highly explosive allegations about a then-Presidential candidate on behalf of two specific clients, one of which was the opposing Presidential campaign. The defendant’s efforts to mislead the FBI in this manner during the height of a Presidential election season plainly could have influenced the FBI’s decision-making in any number of ways. The defendant’s core argument to the contrary rests on the flawed premise that the FBI’s only relevant decision was binary in nature, i.e., whether or not to initiate an investigation. But defendant’s assertion in this regard conveniently ignores the factual and practical realities of how the FBI initiates and conducts investigations. For example, the Government expects that evidence at trial will prove that the FBI could have taken any number of steps prior to opening what it terms a “full investigation,” including, but not limited to, conducting an “assessment,” opening a “preliminary investigation,” delaying a decision until after the election, or declining to investigate the matter altogether.

[snip]

Moreover, the Department of Justice and the FBI maintain stringent guidelines on dealing with matters that bear on U.S. elections. Given the temporal proximity to the 2016 U.S. presidential election, the FBI also might have taken any number of different steps in initiating, delaying, or declining the initiation of this matter had it known at the time that the defendant was providing information on behalf of the Clinton Campaign and a technology executive at a private company.

[snip]

And the evidence will show that it would have been all the more material here because the defendant was providing this information on behalf of the Clinton Campaign less than two months prior to a hotly contested U.S. presidential election. [my emphasis]

The first paragraph here is really telling, given Durham’s public complaint that the Crossfire Hurricane team should have opened the investigation as a preliminary investigation, not a full investigation (the investigation into Mike Flynn, specifically, wasn’t opened as a full investigation, but none of the techniques used would have otherwise been unavailable, not least because there was already a full investigation opened on Carter Page). This is an argument Durham may reprise in his report: That it was unreasonable for Hillary Clinton to ask the FBI to inquire into Trump’s campaign after he publicly asked a foreign country for help (even ignoring the tip from Australia).

Durham seems to think Hillary should have had no assistance from law enforcement when her opponent publicly asked Russia to hack her some more if people close to her found more reason to be concerned. He even mocked Sussmann as too powerful to choose to use anonymity.

[W]hile the defendant’s motion seeks to equate the defendant with a “jilted ex-wife [who] would think twice about reporting her ex-husband’s extensive gun-smuggling operation,” this comparison is absurd. Def. Mot. at 24

Far from finding himself in the vulnerable position of an ordinary person whose speech is likely to be chilled, the defendant – a sophisticated and well-connected lawyer – chose to bring politically-charged allegations to the FBI’s chief legal officer at the height of an election season.”

This also betrays pure insanity. The anomaly involving Trump could always have reflected disloyal insiders compromising the candidate, as could the YotaPhones potentially in use in Trump headquarters. In fact, Page did compromise Trump when he went to Russia in December 2016 and tell Russians there that he was representing Trump on matters pertaining to Ukraine, just as Mike Flynn did by selling his access to Trump to Turkey, just as Tom Barrack is accused of doing with the Emirates. The reason why Sussmann was providing this information less than two months before an election is because cybersecurity researchers had gone looking because there was an ongoing multi-faceted cybersecurity attack, one that continued right through the election, one that could have victimized Trump as well as Hillary.

Which brings me to the one point Sussmann made that Durham completely ignored. In his response, Durham’s response uses the word “purported” to describe the DNS allegations from Sussmann five times:

  1. The defendant provided the FBI General Counsel with purported data and “white papers” that allegedly demonstrated a covert communications channel between the Trump Organization and a Russia-based bank
  2. the purported data and white papers
  3. the purported DNS traffic that Tech Executive-1 and others had assembled
  4. the defendant provided data which he claimed reflected purportedly suspicious DNS lookups by these entities of internet protocol (“IP”) addresses affiliated with a Russian mobile phone provider (“Russian Phone Provider-1”)
  5. examine the origins of the purported data

What Durham did not do is ever address this point from Sussmann:

Indeed, the defense is aware of no case in which an individual has provided a tip to the government and has been charged with making any false statement other than providing a false tip. But that is exactly what has happened here.

In the fall of 2016, Michael Sussmann, a prominent national security lawyer, voluntarily met with the Federal Bureau of Investigation (“FBI”) to pass along information that raised national security concerns. He met with the FBI, in other words, to provide a tip. There is no allegation in the Indictment that the tip he provided was false. And there is no allegation that he believed that the tip he provided was false. Rather, Mr. Sussmann has been charged with making a false statement about an entirely ancillary matter—about who his client may have been when he met with the FBI—which is a fact that even the Special Counsel’s own Indictment fails to allege had any effect on the FBI’s decision to open an investigation.

[snip]

Again, nowhere in the Indictment is there an allegation that the information Mr. Sussmann provided was false. Nowhere is there an allegation that Mr. Sussmann knew—or should have known—that the information was false. And nowhere is there an allegation that the FBI would not have opened an investigation absent Mr. Sussmann’s purported false statement.

I could fund an entire Special Counsel investigation if I had $5 for every time in this prosecution Durham has used the word “purported.” For almost six months, his entire prosecution has been premised on this anomaly not being “real,” meaning unexplained traffic that might represent something serious.

And yet he has not charged that (though he seems to have bullied April Lorenzen, perhaps because he needs her to be something other than she was). Instead, he just keeps doing the work for which actual evidence is normally required by repeating the word “purported” over and over.

This motion to dismiss will likely fail, because juries get to decide what is material. But contrary to Durham’s claims, unless and until he can prove that Sussmann, Jofffe, and Lorenzen didn’t believe this was a real anomaly worth investigating given all the other attacks that, Sussmann especially, knew were ongoing, then he really will be prosecuting someone for reporting a valid national security concern.

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John Durham and Newly-Sanctioned Alfa Bank’s Filings: “Almost like they were written by the same people”

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In a DC hearing on February 9 regarding Alfa Bank’s attempt to obtain documents from Michael Sussmann before his trial, DC Superior Judge Shana Frost Matini observed that the Alfa Bank allegations and the John Durham indictment seemed like they could be written by the same people.

[R]ight now, given the — if the closeness of Alpha’s allegations, I mean, quite frankly, it’s — reading Alpha’s submissions and what the — and that compared to the indictment, there’s — it’s almost like they were written by the same people in some way. [Alpha misspelling original]

Judge Matini, a Trump appointee, scolded Alfa — which over this past weekend was included in sanctions against Russian banks in retaliation for the invasion — for claiming that their lawsuit and Durham’s indictment of Sussmann were not closely related after having raised the indictment in the first place.

As to the claims that the criminal and civil proceedings are not closely related, this is a surprising representation for Alpha to make, given that Alpha was the one to bring the criminal charges to the Court’s attention by filing what was styled as a notice of supplemental authority in support of its Motion to Compel.

Of course, there is no Supplemental Authority here. A criminal indictment is not an opinion of the Court. It’s just a charge that the prosecuting authority is bringing against an individual with facts that are alleged to support the charge.

In dual lawsuits in FL and PA, Alfa Bank purports to be trying to figure out who allegedly faked DNS records to make it look like Alfa was in contact with Trump back in 2016 so it can sue those people. Rather than finding anyone to sue, however, it has instead spent its time subpoenaing experts to learn as much as it can about how the US tracks DNS records to prevent cyberattacks by — among other hostile countries — Russia.

Matini ruled that Alfa’s effort to get more information from Sussmann will have to wait until June, after his trial. (It’s unclear whether the sanctioned bank will still have legal means to pay Skadden lawyers to pursue this lawsuit at that point.)

But since then, the timelines of the Alfa Bank and Durham investigations have closely paralleled.

Of particular interest, on the morning of February 11, Rodney Joffe — referred to as Tech Executive-1 in the Durham filings — sat for an almost 5-hour deposition with Alfa Bank’s lawyers. He revealed that Durham had first approached him for an interview at least a year earlier. He revealed he had been asked to testify before the grand jury, but he “declined to interview,” presumably meaning he told Durham he’d invoke the Fifth (just as Don Jr and probably his daddy are understood to have done with Mueller).

Joffe’s refusal to voluntarily feed this witch hunt continued in his Alfa deposition. Citing the ongoing Durham investigation, he invoked the Fifth Amendment a slew of times (though not as many times as your average Trump man in a financial fraud deposition or even Alex Jones in an interview about an insurrection). Those questions to which he invoked his Fifth Amendment rights and those he answered mapped out an interesting territory, marking who he does know and those Alfa thought he did but that he does not.

For example, he said he had never heard of Alfa Bank before investigating the anomaly related to it. He said he had never met Jean Camp or several of the other researchers that frothers are certain he conspired with. Joffe twice said he had never met Christopher Steele and also said he “had no idea” that Sussmann met with Steele about the server allegations. He denied knowing what the contract between Georgia Tech and DARPA looked like.

Alfa made a number of mistakes — confusing a domain name with a business. Claiming he authored a paper that David Dagon had. Asking him about several emails he hadn’t been sent.

There were several claims Alfa made that Joffe’s lawyer, Steven Tyrrell, established a record were unproven assumptions on Alfa’s part, such as that Joffe got one of the white papers described in the indictment. Importantly, that includes a question about the EOP server.

Q: I was just going to ask Mr. Joffe whether or not he knows who the executive branch office of the U.S. government is?

A: I have to invoke my Fifth Amendment rights.

Mr. Tyrrell: And Margaret, if I may, just — I apologize. Just for the record, I want to be clear that — that in invoking his rights and my allowing my client to invoke his rights, that should not be interpreted as an admission that the — I mean, you’ll argue whatever it is, if you do, that the allegations, which are just allegations in the indictment, are accurate.

In addition to those curious objections, there were several things alleged in the indictment that Joffe outright denied. In several questions, Joffe challenged the meaning of an email Durham has used to suggest he anticipated, and wanted, a top cybersecurity job within a hypothetical Hillary Administration. After objecting to the form of the way the Alfa Bank’s Skadden lawyer tried to corner Joffe into answering the question, Tyrrell answered,

You know, again, our position on this is Mr. Joffe is happy to answer the question that was posed about whether he was ever offered the top cybersecurity job by the Democrats when it looked like they’d win. I think he’s answered that question.

He’s not going to answer questions about communications that he may or may not have had with other people about the topic. And as to those, he would invoke his rights under the Fifth Amendment.

Joffe answered no to three questions about whether the Clinton campaign paid him for his work on the server allegations, a false claim that Kash Patel spread.  Joffe also distinguished his concern about Donald Trump from a political desire to see him lose.

I’ve never been interested in politics. I’ve never been involved in politics. I haven’t voted for many, many years. I haven’t donated to any parties or any — or given any kind of benefit to any parties, but I certainly over the last few years have had an interest in the politics of the country that I live in.

That explanation premised two invocations of his Fifth Amendment in response to questions about Trump specifically.

In other words, Joffe’s Alfa Bank deposition on February 11 undermined several of the premises of the Durham investigation, while it identified several areas where his lawyer suggested Alfa’s assumptions were wrong (in the hearing on Laura Seago’s deposition, there was a central Alfa Bank assumption I know to be badly wrong).

Joffe’s deposition ended at 2:07PM ET on February 11.

Nine hours later, at 11:32PM, Durham submitted the belated conflicts motion — which would have been filed in September if Durham really had concerns about any conflict — and floated a number of claims about Joffe, claims that went beyond those in the indictment. Joffe is mentioned twenty times, including the following:

The defendant’s billing records reflect that the defendant repeatedly billed the Clinton Campaign for his work on the Russian Bank-1 allegations. In compiling and disseminating these allegations, the defendant and Tech Executive-1 also had met and communicated with another law partner at Law Firm-1 who was then serving as General Counsel to the Clinton Campaign (“Campaign Lawyer-1”).

The Indictment also alleges that, beginning in approximately July 2016, Tech Executive-1 had worked with the defendant, a U.S. investigative firm retained by Law Firm-1 on behalf of the Clinton Campaign, numerous cyber researchers, and employees at multiple Internet companies to assemble the purported data and white papers. In connection with these efforts, Tech Executive-1 exploited his access to non-public and/or proprietary Internet data. Tech Executive-1 also enlisted the assistance of researchers at a U.S.-based university who were receiving and analyzing large amounts of Internet data in connection with a pending federal government cybersecurity research contract. Tech Executive-1 tasked these researchers to mine Internet data to establish “an inference” and “narrative” tying then-candidate Trump to Russia. In doing so, Tech Executive-1 indicated that he was seeking to please certain “VIPs,” referring to individuals at Law Firm-1 and the Clinton Campaign.

The Government’s evidence at trial will also establish that among the Internet data Tech Executive-1 and his associates exploited was domain name system (“DNS”) Internet traffic pertaining to (i) a particular healthcare provider, (ii) Trump Tower, (iii) Donald Trump’s Central Park West apartment building, and (iv) the Executive Office of the President of the United States (“EOP”). (Tech Executive-1’s employer, Internet Company-1, had come to access and maintain dedicated servers for the EOP as part of a sensitive arrangement whereby it provided DNS resolution services to the EOP. Tech Executive-1 and his associates exploited this arrangement by mining the EOP’s DNS traffic and other data for the purpose of gathering derogatory information about Donald Trump.)

The Indictment further details that on February 9, 2017, the defendant provided an updated set of allegations – including the Russian Bank-1 data and additional allegations relating to Trump – to a second agency of the U.S. government (“Agency-2”). The Government’s evidence at trial will establish that these additional allegations relied, in part, on the purported DNS traffic that Tech Executive-1 and others had assembled pertaining to Trump Tower, Donald Trump’s New York City apartment building, the EOP, and the aforementioned healthcare provider. In his meeting with Agency-2, the defendant provided data which he claimed reflected purportedly suspicious DNS lookups by these entities of internet protocol (“IP”) addresses affiliated with a Russian mobile phone provider (“Russian Phone Provider-1”). The defendant further claimed that these lookups demonstrated that Trump and/or his associates were using supposedly rare, Russian-made wireless phones in the vicinity of the White House and other locations. The Special Counsel’s Office has identified no support for these allegations. Indeed, more complete DNS data that the Special Counsel’s Office obtained from a company that assisted Tech Executive-1 in assembling these allegations reflects that such DNS lookups were far from rare in the United States. For example, the more complete data that Tech Executive-1 and his associates gathered – but did not provide to Agency-2 – reflected that between approximately 2014 and 2017, there were a total of more than 3 million lookups of Russian Phone-Provider-1 IP addresses that originated with U.S.-based IP addresses. Fewer than 1,000 of these lookups originated with IP addresses affiliated with Trump Tower. In addition, the more complete data assembled by Tech Executive-1 and his associates reflected that DNS lookups involving the EOP and Russian Phone Provider-1 began at least as early 2014 (i.e., during the Obama administration and years before Trump took office) – another fact which the allegations omitted.

As I noted, less than a day after Durham filed that motion, the former President suggested that Joffe had been spying and should be killed. In response to the furor, Joffe’s spox later issued a statement clarifying what went on — precisely the information he had tried to plead the Fifth over.

In a statement, a spokesperson for Mr. Joffe said that “contrary to the allegations in this recent filing,” he was apolitical, did not work for any political party, and had lawful access under a contract to work with others to analyze DNS data — including from the White House — for the purpose of hunting for security breaches or threats.

After Russians hacked networks for the White House and Democrats in 2015 and 2016, it went on, the cybersecurity researchers were “deeply concerned” to find data suggesting Russian-made YotaPhones were in proximity to the Trump campaign and the White House, so “prepared a report of their findings, which was subsequently shared with the C.I.A.”

And some of the other researchers had to provide more details to push back on the frenzy (including that the data from EOP preceded Trump’s inauguration). Few outlets, though, have presented the basic innumeracy in Durham’s filing about the rarity of YotaPhones as anything but a contested issue.

And after Durham incited claims that Joffe should be killed, one week later Alfa Bank then affirmed the tie between Joffe and Tech Executive 1 by posting his deposition in their motion to get another four months to conduct their fishing expedition. That has had the effect of further inflaming the frothy right, and providing Durham sworn testimony from Joffe that he was otherwise not entitled to (including several warnings about how his case against Sussmann may be vulnerable).

In the wake of the release of the Florida filing, Joffe’s lawyers intervened in the Sussmann case and then filed a separate sealed motion to strike the (misleading) references to Joffe in the filing.

A Trump appointed judge in DC believes these efforts look like they’re being written by the same people. Whether Durham’s sources and a sanctioned Russian Bank’s sources are “colluding,” these parallel developments had the effect of depriving Joffe of his ability to fully invoke the Fifth Amendment. And with the help of a sanctioned Russian bank, it gave Durham a substantial benefit in a criminal investigation.

Timeline

January 25: Durham asks to extend discovery deadline

January 28: Durham admits that Durham was informed about the James Baker phone he claimed to forget knowing about

February 9: Michael Sussmann succeeds in staying Alfa Bank’s effort to get documents from him

February 10: Fusion GPS’ Laura Seago attempts to quash a subpoena

February 11, 9:30AM: Rodney Joffe deposition

February 11, 11:32PM: Durham files a motion purporting to be a conflicts motion that misrepresents the evidence

February 14: Sussmann asks to strike unsupported allegations in conflicts motion

February 14: Peter Fritsch deposition

February 17: Sussmann moves to dismiss the case, arguing his alleged lie would not be material

February 17: Durham claims that the close associates of the investigation that lied about what the conflicts motion said have nothing to do with the Durham team

February 18: Alfa Bank requests another extension to keep looking for John Does in FL

February 24: Rodney Joffe’s lawyers file notices of appearance in the Sussmann docket

February 25: Judge Christopher Cooper schedules a hearing on the conflicts motion for March 7

February 28: Joffe files a sealed motion to expunge the references to Tech Executive-1

March 1: Judge Cooper sets a Friday deadline for the government to respond to Joffe’s motion

March 7: Hearing scheduled to address conflicts memo

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Rudy Giuliani Attacks Biden as SDNY Sifts Through His Comms for Ukraine Foreign Agent Investigation

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Among the many Trump allies suggesting that the former President was better on Russian issues than the current, Rudy Giuliani attempted to attack President Joe Biden with a Tweet dripping with projection.

Just over four weeks ago, the Special Master Barbara Jones delivered the latest tranche of records seized from Giuliani’s phones to prosecutors in SDNY, the US Attorney’s Office that Rudy once led.

While the scope of the review exceeds the scope of the known warrants, those known warrants target Rudy’s role in getting Maria Yovanovich fired in 2019 as part of an effort to get campaign dirt on Joe Biden.

Indeed, for six of Rudy’s devices, the latest review focused on the period from December 1, 2018 through May 31, 2018, which would cover the following events.

Late 2018: Rudy Giuliani participates in a Skype call with the former top Ukrainian prosecutor, Viktor Shokin, who was ousted from office after multiple Western leaders, including former Vice President Joe Biden, pressed for his removal. Leaders complain Shokin was failing to tackle corruption. It’s around this time that Giuliani says he first learned of a possible Biden-Ukraine connection.

January 2019: Giuliani meets in New York with the top Ukrainian prosecutor at the time, Yuriy Lutsenko. This is when, Giuliani says, his investigation into the Bidens began.

A man named Lev Parnas has said he attended the meeting with Lutsenko and arranged the call with Shokin. Parnas told NPR he attended at least two meetings Giuliani had with Lutsenko. Parnas and an associate, who also worked with Giuliani, are later arrested and charged with violating campaign finance law in a separate matter.

March 31: The first round of presidential elections take place in Ukraine. Zelenskiy, a comedian who once played a president on television, comes out ahead of incumbent President Petro Poroshenko. The race goes to a runoff.

April 7: In an interview on Fox News, Giuliani, unprompted, brings up a Biden-Ukraine connection. He says that while investigating the origin of the Russia investigation, “some people” told him “the story about [gas company] Burisma and Biden’s son.” Giuliani suggests that as vice president, Biden pressed to remove Shokin because he was investigating Burisma, a Ukrainian gas company that had Biden’s son Hunter on its board for several years. There is no evidence to support this claim.

April 21: Zelenskiy is elected president of Ukraine and Trump calls to congratulate him. A White House readout of the call says Trump “expressed his commitment to work together with President-elect Zelenskyy and the Ukrainian people to implement reforms that strengthen democracy, increase prosperity, and root out corruption.”

April 25: Trump calls in to Sean Hannity’s TV show and says he has heard rumors about Ukrainian “collusion.” He tells the Fox News host he expects Attorney General Bill Barr to look into it. “I would imagine he would want to see this,” Trump says.

May 6: Marie Yovanovitch, the U.S. Ambassador to Ukraine and an Obama appointee, ends her assignment in Kyiv. According to the whistleblower complaint filed against Trump, she had been “suddenly recalled” to the U.S. by senior State Department officials a week earlier.

Giuliani later says in an interview that she was removed “because she was part of the efforts against the President.” Yovanovitch tells Congress that she learned from the deputy secretary of state “there had been a concerted campaign against me, and that the Department had been under pressure from the President to remove me since the Summer of 2018,” according to prepared remarks reported by multiple outlets.

May 9: Giuliani tells The New York Times he will travel to Ukraine “in the coming days” to push for investigations that could help Trump. Giuliani says he hopes to meet with President-elect Zelenskiy to push for inquiries into the origins of the Russia investigation and the Bidens’ involvement with Burisma.

“We’re not meddling in an election, we’re meddling in an investigation, which we have a right to do,” Giuliani tells the Times.

“There’s nothing illegal about it,” he says. “Somebody could say it’s improper. And this isn’t foreign policy — I’m asking them to do an investigation that they’re doing already and that other people are telling them to stop. And I’m going to give them reasons why they shouldn’t stop it because that information will be very, very helpful to my client and may turn out to be helpful to my government.”

Among the members of Congress criticizing Biden, Tulsi Gabbard voted present to impeach Trump on his related extortion attempt; virtually all Republicans voted not to impeach Trump, including Biden critics Paul Gosar and Scott Perry. Of Republican Senators, just Mitt Romney voted to convict the President.

Trump was not serious about Ukraine. He viewed it as nothing more than a political football. Almost his entire party backed him in that effort.

And his former attorney, wailing on Twitter about the ‘CLEAR AND PRESENT DANGER” posed by “mentally deteriorating [men], who [were] of limited intelligence even before [] dementia” remains under criminal investigation as an unregistered agent of Russian-backed Ukrainians for his role in politicizing Ukraine.

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Judge Mehta Observes that Roger Stone’s Role on January 6 “May Prove Significant in Discovery”

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Bennie Thompson filed his original lawsuit against Donald Trump on February 16, 2021. He amended it on April 7, 2021 to account for the legal dissolution of the Proud Boys, to add plaintiffs, and to add more details.

That means the allegations addressed in Judge Amit Mehta’s order rejecting Trump’s motion to dismiss are over ten months old and entirely predate the foundation of the January 6 Select Committee. The amended complaint was filed just days after DOJ arrested Joe Biggs’ co-travelers (providing the first documentary visibility on his second breach of the building) and similarly shortly after the first Oath Keepers superseding indictment to incorporate the Grand Theft Golf Cart chase by those who had been at the Willard the morning of the attack. In other words, the allegations addressed in Friday’s opinion were laid out an eternity ago in our understanding of the insurrection.

As Trump described it in his response to the amendment complaint, the only new things added pertained to Roger Stone and a public report that the FBI had found communications between a Trump associate and the Proud Boys.

The Amended Complaint added little in the way of additional material allegations. In paragraphs 70 and 71, Plaintiffs cryptically claim that someone associated with the White House communicated with the Proud Boys, without specifying who. They also try guilt by association. They claim to show a conspiracy to incite the January 6 riot by suggesting that at the “end of December” President Trump communicated with Roger Stone, who they then allege also communicated with members of the Proud Boys. Am. Compl. ¶ 71. Of course, they do not allege what conspiratorial statements were supposedly exchanged between any of the parties, other than to say that Mr. Stone met with Mr. Trump to ensure he “continues as our president.” Plaintiffs incredibly and without any detail also claim that Mr. Trump “knew” of the planning of the violence at the U.S. Capitol because of statements by supporters found on the dark corners of the Internet, seeking to implausibly impute his awareness of those statements. Id. at ¶¶ 66, 56-62.

Here’s that language from the amended complaint.

70. The White House was also in contact with the Proud Boys. An FBI review of phone records showed that, in the days leading up to the rally, a person associated with the Trump White House communicated with a member of the Proud Boys by phone.

71. At the same time, Defendant Trump was in contact with long-time associate Roger Stone, who was in contact with both the Proud Boys and the Oath Keepers. Mr. Stone posted on the social media website Parler that, at the end of December, he met with Defendant Trump to “ensure that Donald Trump continues as our president.” Proud Boys leader Enrique Tarrio confirmed that he called Roger Stone in early January. Members of the Oath Keepers agreed to serve as Mr. Stone’s security detail during the January 6 protests.

Judge Mehta, of course, has had front row seats as DOJ has continued to supersede the Oath Keeper indictments. That’s why his treatment of this exchange bears close notice.

The President also dismisses two allegations as weak and speculative that purport to tie him to the Proud Boys and the Oath Keepers. The court relies on neither at this juncture but thinks one may prove significant in discovery. The first is an allegation that “a person associated with the Trump White House communicated with a member of the Proud Boys by phone.” Thompson Compl. ¶ 70. The court agrees that this is a speculative allegation and has not considered it. The other concerns the President’s confidant, Roger Stone. Stone posted on Parler in late December that he had met with the President “to ensure that Donald Trump continues as our president.” Shortly thereafter, Stone spoke with Tarrio, and later he used the Oath Keepers as his security detail for the January 6 Rally. The court does not rely on these allegations to establish the President’s knowledge of the Proud Boys or the Oath Keepers. Other alleged facts make that inference plausible. That said, Stone’s connections to both the President and these groups in the days leading up to January 6th is a well-pleaded fact. Discovery might prove that connection to be an important one.

He’s not relying on either of these allegations, and doesn’t think much of the first one.

I have always suspected that was a reference to Rudy Giuliani, who posted then immediately deleted and reposted newly-cropped communications with Proud Boy affiliate James Sullivan a week after the riot. In it, Sullivan proposed blaming the entire riot on his brother John. But Sullivan also spoke of at least five people who had participated in the riot (an “agent,” three Utahns, and Kash Kelly).

Kash Kelly remains charged by complaint over 13 months after his arrest. And other judges (Emmet Sullivan for John Sullivan, and possibly Randolph Moss for the most likely Utahns) are presiding over the cases in which this exchange might have shown up in some manner.

So unless Landon Copeland (also from Utah) is one of Sullivan’s Utahns, then Mehta would have little separate means to understand this reference, if it is even the one that came up in FBI toll records.

But even the public record of the Oath Keeper case has shown how close the ties between Stone and the Oath Keepers are, both in the weeks leading up to the insurrection in Florida and in the repeated calls from the Willard Hotel that morning. Indeed, Mehta may be persuaded of the plausibility of a conspiracy between the Oath Keepers and Proud Boys because of what he has seen of Stone’s role linked to the two, including in Kelly Meggs’ claims to have brokered a Florida-based alliance in December 2020.

And Mehta has almost certainly seen more of Stone’s role than what can be read through the redactions, particularly now that DOJ has spun off the part of the Oath Keeper conspiracy that most closely implicates Stone’s actions that day.

Judge Mehta didn’t rely on what he may know of Stone’s role in this conspiracy. But as the person with more familiarity about what the evidence is than anyone else, he suggested there’s a there there.

Update: Fixed “Utahan,” which is a misspelling I adopted from Sullivan before and which as someone who loved Utah when I lived there I really regret.

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Judge Mehta’s Ruling that Donald Trump May Have Aided and Abetted Assaults on Cops Is More Important Than His Conspiracy Decision

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Judge Mehta’s Ruling that Donald Trump May Have Aided and Abetted Assaults on Cops Is More Important Than His Conspiracy Decision

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As I laid out here, Judge Amit Mehta rejected Trump’s motion to dismiss three lawsuits against him last week. Click through for my explanation of why it matters that Judge Mehta — among the most respected of DC judges — issued this decision.

But there’s another reason why it matters that Mehta issued this ruling.

I was, frankly, unsurprised that Mehta ruled for plaintiffs on their claims that Trump entered into a conspiracy with two militias to attempt to prevent the vote certification. I’ve been laying out all the evidence Trump could be included in a conspiracy with the militias to obstruct the vote count for some time. And on a motion to dismiss, the judge must  assume all the alleged facts were true and only tests those claims for plausibility. Mehta didn’t rule that Trump did so; he ruled that plaintiffs will have a chance to make that case.

I was far more surprised that Judge Mehta also ruled it plausible that Trump aided and abetted the actual and threatened physical assaults committed by the rioters. Here’s how Eric Swalwell’s suit argued that Trump abetted the threatened attacks on Members of Congress, including Speaker Pelosi:

240. Many individuals in the mob either carried weapons or used objects such as poles and fire extinguishers as weapons before and after entering the building. Some individuals in the mob also carried restraints such as plastic handcuffs and rope.

241. The mob also unlawfully and intentionally entered non-public areas of the Capitol building, including the members’ private offices. Members of the mob damaged and vandalized personal and public property and stole documents, electronics, and other items from some members’ offices.

242. As the mob made its way through the Capitol looking for Members, participants threatened to kill numerous individuals, including, but not limited to, Vice President Mike Pence and Speaker of the House Nancy Pelosi. The mob terrorized and injured scores of people inside and outside of the Capitol, including the Plaintiff.

[snip]

248. Before directing the mob to the Capitol, the Defendants instructed them to “fight like hell,” “start taking down names and kicking ass,” and that it was time for “trial by combat.”

249. The Defendants intended these words to be taken literally.

250. For several hours after the mob had stormed the Capitol, the Defendants refused to communicate anything to the mob that might discourage continued unlawful action.

251. The Defendants knowingly and substantially assisted in the assault that was perpetrated upon the Plaintiff. The Defendants riled up the crowd and directed and encouraged the mob to attack the Capitol and seek out members of Congress and assault them.

Here’s how Capitol Police officer Sidney Hemby, described being assaulted while trying to protect the East doors of the Capitol in his lawsuit with James Blassingame.

63. Officer Hemby ran to the East Front stairs to try to stop the crowd, but it was too late, and the crowd was too large and aggressive.

64. The crowd chased him and his fellow officers to the top of the stairs and forced them against the doors.

65. At 1:49 p.m. 1 , after Trump had returned to the White House, and was reportedly watching on TV as events were unfolding at the Capitol, he tweeted out the entirety of his speech:

66. At 1:59 p.m., insurrectionists pushed Capitol Police to the top of the east Capitol steps, and by 2:10 p.m., insurrectionists began attempting to break into the building through windows on the west side.

67. Officer Hemby was crushed against the doors on the east side trying to hold the insurrectionists back. Over and over, he tried to tell the insurrectionists that the doors opened outward and that pressing him into the door would do no good.

68. But the insurrectionists continued to scream, “Fight for Trump,” “Stop the Steal,” and various other slogans, as they struck him with their fists and whatever they had in their hands. Things were being thrown at him, and he was sprayed with chemicals that irritated his eyes, skin, and throat.

Judge Mehta rejected Trump’s bid to dismiss those arguments.

Next, the court takes up Plaintiffs’ common law assault claims based on an aiding-andabetting theory of liability. Swalwell Compl. ¶¶ 237–252; Blassingame Compl. ¶¶ 163–168. President Trump’s motion in Swalwell does not separately address the aiding-and-abetting-assault claim, but he extensively addresses it in his Blassingame motion. See generally Swalwell Trump Mot.; Blassingame Trump Mot. at 33–40. The court will exercise its discretion and consider those arguments in both cases.39

Halberstam v. Welch remains the high-water mark of the D.C. Circuit’s explanation of aiding-and-abetting liability. The court there articulated two particular principles pertinent to this case. It observed that “the fact of encouragement was enough to create joint liability” under an aiding-and-abetting theory, but “[m]ere presence . . . would not be sufficient.” 705 F.2d at 481. It also said that “[s]uggestive words may also be enough to create joint liability when they plant the seeds of action and are spoken by a person in an apparent position of authority.” Id. at 481–82. A “position of authority” gives a “suggestion extra weight.” Id. at 482.

Applying those principles here, Plaintiffs have plausibly pleaded a common law claim of assault based on an aiding-and-abetting theory of liability. A focus just on the January 6 Rally Speech—without discounting Plaintiffs’ other allegations—gets Plaintiffs there at this stage. President Trump’s January 6 Speech is alleged to have included “suggestive words” that “plant[ed] the seeds of action” and were “spoken by a person in an apparent position of authority.” He was not “merely present.” Additionally, Plaintiffs have plausibly established that had the President not urged rally-goers to march to the Capitol, an assault on the Capitol building would not have occurred, at least not on the scale that it did. That is enough to make out a theory of aiding-and-abetting liability at the pleadings stage.

39 President Trump contends for the first time in his Swalwell reply brief that aiding and abetting a tort is not a recognized cause of action under District of Columbia law. Swalwell Trump Reply at 25–26. That argument comes too late, and the court declines to consider it.

Again, this is just the first step. It will be appealed. This is not a final ruling. But Mehta’s decision means that both sets of plaintiffs may get a chance to hold Trump accountable for the violence attempted or committed by people who responded to the President’s command to, “fight like hell.”

This part of Mehta’s ruling is far more important than the conspiracy side. To understand why, consider some of the cases over which Judge Mehta is presiding, which would be what he might have in mind when he thinks of what it means that Trump may have abetted assaults.

Landon Copeland

Landon Copeland is an Iraq War veteran with PTSD that has contributed to some epic meltdowns in court hearings. He traveled to DC on January 6 from the Four Corners region of Utah, taking a full week off work. He said he made the trip, he told the FBI, because President Trump ordered him to be there.

The defendant said that he traveled to the Capitol in part because former President Trump ordered him and others to be there.

Copeland went to Trump’s rally, then went with the crowd to the Capitol. He’s a really big guy and is accused of several assaults at the first barricades.

At the front of this crowd, the defendant shouted at the officers; he was visibly angry. Shortly thereafter, another rioter approached a police officer, began shouting at the officer, and put his hands on or around the officer’s neck. Copeland pushed that other rioter, from behind, into the officer, causing that officer to fall to the ground. After this, other officers stepped forward in an apparent attempt to protect the fallen officer. Copeland grappled with and pushed them, grabbing onto one officer’s riot shield, another officer’s jacket, and then pushing against the riot shields of two other officers.

Thomas Webster

Thomas Webster is a former Marine and retired NYPD cop who traveled to DC from New York with a revolver, a bullet-proof vest, and some MREs. While he claims he left the revolver in his hotel room, he wore his bullet proof vest to the rally at the Ellipse, then walked to the Capitol, carrying a Marine flag. After verbally attacking one of the cops at a barricade, he pushed over it, wrestled the cop to the ground, and grabbed his helmet, seemingly (though not in fact) gouging the cop’s eyes.

Shane Woods

Shane Woods drove to DC from Illinois on January 5. Like the others, Woods went to the Trump rally and then walked with the crowd to the Capitol.  In some of the early fighting at the west side of the Capitol he is accused of tripping a female cop.

Then, a few hours later, Woods was involved in a group attack on some media, allegedly tackling a cameraman in similar fashion to the attack on the cop.

Peter Schwartz

Peter Schwartz is a violent felon who traveled to DC while out on release from prison because of COVID. Schwartz is accused (along with a woman I believe to be his partner) of involvement in a range of assaults on cops protecting the Lower West Terrace and the Tunnel on January 6, including stealing mace from and then using it on cops and throwing a chair.

On January 7 he described his actions as being part of “What happened yesterday was the opening of a war. I was there and whether people will acknowledge it or not we are now at war.”

The Oath Keepers

As I’ve noted repeatedly, Mehta is also presiding over the Oath Keepers, who all entered the East door and therefore would be among those kitted out people who violently pushed past Sidney Hemby. A few of the Oath Keepers are individually accused of assault. For example, video shows veteran Joshua James fighting with a cop in the Rotunda, screaming, “Get out! … This is my fucking Capitol!”

But members of the Stack who pushed past Hemby as he was protecting that door are suspected of far more serious plans for assault. As Mehta noted in ruling for the pre-trial detention of Stewart Rhodes on Friday — the same day he issued this ruling — once the Stack broke into the Capitol, they split up, with part of the group trying to make it to the Senate and the other part going to Nancy Pelosi’s office.

The latter is of particular concern because, on Election Day, Kelly Meggs told his wife and kid he was “gonna go on a killing spree … Pelosi first.”

Then after he had gone to her office, he told someone (probably his kid again), that “we looked for[] her.”

Judge Mehta has good reason to suspect (and likely knows far more about how serious this plot was) that the Oath Keepers, after busting into the Capitol past Hemby, took steps to hunt down Nancy Pelosi, and possibly someone in the Senate, like Pence.

When Judge Mehta says he thinks it is plausible that Donald Trump abetted assaults and threatened assaults at the Capitol, he’s not speaking abstractly. Judge Mehta has a very specific understanding of the kinds of assaults that happened that day. Those were  violent attacks on cops — several allegedly committed by military veterans and one by a retired NYPD cop. Those include a gratuitous attack on the media. It includes an attempt to hunt down the Speaker of the House.

With this ruling, Trump may be on the hook for such assaults civilly.

But given that the judge presiding over some spectacularly violent assaults that day has judged that Trump’s actions may rise to an aid and abet standard, it may make DOJ more seriously consider Trump’s exposure for such acts criminally.

Related Post

How Judge Amit Mehta Argued It Plausible that Trump Conspired with Two Militias

Judge Mehta Observes that Roger Stone’s Role on January 6 “May Prove Significant in Discovery”

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John Durham Accuses One of His Key Fact Witnesses — Sergei Millian’s Twitter Account — of “Misinterpret[ing] Facts”

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As I documented the other day, John Durham responded to the uproar over his conflicts filing stunt by claiming to have had nothing at all to do with the “third parties” who “overstated, understated, or otherwise misinterpreted facts contained in the Government’s Motion.”

If third parties or members of the media have overstated, understated, or otherwise misinterpreted facts contained in the Government’s Motion, that does not in any way undermine the valid reasons for the Government’s inclusion of this information.

The claim that the uproar was created by “third parties” is so obviously false it raises conflict problems for Durham himself.

Durham falsely claims those pushing lies are “third parties” to his investigation

As I laid out, one of the key perpetrators of the false claims — including the false claims (1) that Hillary paid Rodney Joffe, (2) that Joffe had “infiltrated” the White House, and (3) Joffe had done so when Trump was President — was Kash Patel, the originator of this entire line of inquiry in December 2017, and someone who for years had means to learn that those claims were false.

John Ratcliffe, whom Durham was meeting rather than interviewing Hillary staffers who could substantiate or debunk his accusations that Michael Sussmann was coordinating with the campaign, made these unsubstantiated claims in a TV appearance earlier this week:

  • There was a “Hillary Clinton campaign plan to falsely accuse Donald Trump of collusion with Russia”
  • Rodney Joffe used DNS data “for an unlawful purpose”
  • Sussmann “pitched” information “to the FBI as evidence of Trump-Russia connections that simply weren’t true and that the lawyer, Michael Sussmann, and the tech executive knew not to be true”

Donald Trump, who personally nominated John Durham as US Attorney and whose demands for criminal investigations led to Durham’s appointment as Special Counsel, asserted that his “presidency [was] spied on by operatives paid by the Hillary Clinton campaign in an effort to develop a completely fabricated connection to Russia.”

These are not “third parties.” These are:

  • The originator of the allegations against Sussmann
  • A self-described repeat Durham witness
  • The man who nominated Durham to be US Attorney and, ultimately, was his boss for almost 3 years

But there’s actually another key player in the effort to magnify Durham’s conflicts filing stunt who is even more central to Durham’s work: One of his most important “witnesses,” Sergei Millian’s twitter account.

The pipeline from online conspiracy theorists through former investigators to the former President

Yesterday, Glenn Kessler attempted to trace how the filing became a propaganda tool. The timeline he laid out looks like this (these times are ET):

11:33PM: Filing hits PACER.

12:43AM: Whispers of Dementia screencaps the filing, noting Durham claimed “Sussmann is likely to be in an “adversarial posture” against Perkins Coie.”

9:24AM: emptywheel notes that Durham is criminalizing lying to the FBI about traffic involving Trump Tower, which Trump himself did at the time.

9:25AM: Hans Mahncke links and screencaps the filing and claims,

Rodney Joffe and his buddies at Georgia Tech monitored Trump’s internet traffic *while* he was President of the United States.

9:39AM: Kessler’s gap

9:45AM: emptywheel RTs Mahncke and notes that this is about cybersecurity.

10:25AM: Techno Foggy tweets that,

DNC/Perkins Coie allies – Rodney Joffe, et al. – Joffe et al, “exploited a sensitive US govt arrangement” to gather intel on the “Executive Office of the President of the U.S.” They spied on Trump.

11:11AM: House Judiciary GOP [so a Jim Jordan staffer] RTs Foggy’s tweet, claiming:

We knew they spied. But it was worse than we thought.

11:44AM: Techno Foggy tweets out his Substack with the claim,

Clinton allies used sensitive data from the Office of the President to push false Trump/Russia claims to the CIA

Why did they risked jail to link Trump to Russia?

Maybe because the origin of their fraud was the “Russian hack” of the DNC.

2:27PM: John Ratcliffe responds to House Judiciary tweet with claim, “And now you’re finding out why…,” thereby seemingly endorsing the “spying” claim, and linking the Durham release with his own cooperation with Durham’s inquiry.

3:24PM: Mark Meadows RT’s Foggy’s tweet, claiming,

They didn’t just spy on Donald Trump’s campaign.

They spied on Donald Trump as sitting President of the United States.

It was all even worse than we thought.

5:51PM: Center for Renewing America tweets out Kash Patel statement making numerous false claims.

6:47PM: Trump’s spox tweets out his claims of spying.

This timeline is damning enough: It shows how these false claims went from “sleuths” who spend much of their time spinning Durham’s conspiracy theories, through Techno Foggy (a self-described lawyer who has for years interacted openly with lawyers like Sidney Powell and Billy Barr’s spox Kerri Kupec), to Jim Jordan’s staffer to Ratcliffe to Mark Meadows to Kash Patel to Trump. Every single one of these current and former officials have played a central role in these investigations; none is a “third party.”

Sergei Millian’s twitter account calls it spying

But there’s a very key step in Kessler’s timeline that is missing. At 9:39AM (the time shown here is Irish time) — which I’ve marked above in red — Sergei Millian’s twitter account tweeted, “They were spying on the White House, folks!!.”

This claim was before Techno Foggy made the spying claim. The first person to have made the “spying” claim in this timeline, then, was Sergei Millian’s twitter account.

In fact, the next day, Millian’s twitter account insinuated to have started all this in the first place — that the twitter account “had a direct line into the White House” via which it “told them who was working against them.”

Thanks for identifying this phone call, Sergei, because Igor Danchenko will now have cause to demand details of it in discovery, which will mean, on top of the other unprecedented discovery challenges Durham has taken on in prosecuting Danchenko, he’s now going to have to get Trump records from the Archives. Michael Sussmann, too, likely now has cause to demand those records.

The Millian twitter account RT of Mahncke to belatedly explain the spying claim makes it clear it is an active participant in the “Sleuths Corner” that drives many of the false claims about Durham. In fact the Millian twitter account even advertises it on the twitter account.

Durham says his key witness “misrepresented the facts”

This all amounts to Durham himself discrediting one of his witnesses, perhaps fatally.

As I have noted, when John Durham charged Igor Danchenko with four counts of lying about believing that he had spoken to Sergei Millian back in July 2016, Durham didn’t actually claim to have obtained testimony from the human being named Sergei Millian. Durham did not appear to have required that Millian show up and make statements for which he could be legally held accountable.

Instead, Durham presented an unverified twitter account to the grand jury and based on that, claimed “Chamber President-1 has claimed in public statements and on social media that he never responded to DANCHEKNO’s [sic] emails, and that he and DANCHENKO never met or communicated.”

I refer to this entity as “Sergei Millian’s twitter account” to emphasize that there is not a scrap of evidence in the public record showing that Durham did anything to confirm that Millian, the person, even operates it exclusively. While I have no reason to doubt that he does, from a legal standpoint, Durham is at least publicly relying on nothing but an unverified account, something journalists have been loathe to do for years with Millian.

And this claim attributed to an unverified twitter account is a very important piece of evidence. There’s nothing else in the public record that shows Durham affirmatively ruled out that Danchenko and Millian really did have a phone call.

When I first realized how reckless that was, I though it impossible for Durham to have been that negligent. But we’ve since learned that he accused Sussmann of coordinating with Hillary’s staffers without ever first interviewing a single full-time staffer. So perhaps it is, in fact, true that Durham charged a man based off the unsubstantiated claims of a twitter account.

Danchenko appears to have obtained a pre-trial subpoena on February 8; I have wondered whether it was for the Millian twitter account. If so, the subpoena might well obtain the traffic of what has happened in recent days.

As it stands, though, Durham makes no claim to have anything else.

Just that twitter account.

And that twitter account is part of a pipeline that took Durham’s filing and made egregiously false claims about it. Durham is now on the record claiming that that twitter account “misinterpreted the facts.” But Danchenko will have good reason — and abundant proof, given the details of last week’s little propaganda explosion — to argue that Sergei Millian’s twitter account is willing to make false claims to create a scandal around the Durham investigation.

That shreds the credibility of the only claimed “witness” that the call never happened.

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The Durham Investigation Has Lasted 50% Longer than the Mueller Investigation

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It seems like just days ago we were celebrating a big milestone in the life of the Durham investigation: the 1,000 day mark.

Time flies when you’re unethically making accusations designed to rile up the frothy base, because Durham hits another major milestone today.

Today makes day 1,011 for Durham. The Mueller investigation lasted 674 days, total. So as of today, John Durham has been investigation for 50% longer than the entire Mueller investigation he was hired to undermine.

I had to highlight the end date for Mueller because it gets lost when compared to the Durham timeline.

In 22 months, Mueller got convictions of Trump’s Coffee Boy, his National Security Advisor, his Campaign Manager and the Campaign Manager’s Deputy, Trump’s personal lawyer, as well as another American and the son-in-law of Alfa Bank Oligarch German Khan. On a referral, a second Konstantin Kilimnik partner, Sam Patten pled guilty. Mueller charged 25 Russian involved in attacks on the country, as well as Kilimnik himself in a conspiracy with Manafort (though not the conspiracy for trading campaign strategy for debt relief). With another eight months, DC’s US Attorney would win Roger Stone’s conviction. None of those things — not the George Papadopoulos guilty plea, not the guilty plea of Khan’s son-in-law Alex Van der Zwaan, and not Michael Cohen’s plea to covering up the communications he had (on Trump’s behalf) with the Kremlin — derives from either the Steele dossier or the Alfa-Bank anomalies.

In half again that time span, John Durham has won the guilty plea of Kevin Clinesmith (whose misconduct DOJ Inspector General Michael Horowitz found), charged Michael Sussmann for lying about coordinating with Hillary staffers he didn’t coordinate with, and charged Igor Danchenko for lies that Durham’s prosecutors created, at least in part, with cut-and-paste failures. All because he’s sure — and he’s going to keep going until he finds proof — that the abundant prosecutions Mueller obtained were the fruit of stuff that Durham is working hard to criminalize and not the criminal conduct that all those Trump flunkies but Stone admitted to.

With the addition of a new financial crimes prosecutor yesterday to the Michael Sussmann prosecution team, I feel like Durham is barely getting started. Why not double the length of time it Mueller took to investigate rather than avoid admitting you can’t substantiate any of your conspiracy theories?

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Six Data Points about the CIA Dragnet

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Last week, Ron Wyden and Martin Heinrich released a declassified letter they wrote last April, describing a CIA bulk program that had not been fully briefed to the Intelligence Committees, which violated the spirit and understanding of efforts to shut down bulk collection.

This history demonstrates Congress’s clear intent, expressed over many years and through multiple pieces of legislation, to limit, and in some cases, prohibit the warrantless collection of Americans’ records, as well as the public’s intense interest in and support for these legislative efforts. And yet, throughout this period, the CIA has secretly conducted it own bulk program [redacted]. It has done so entirely outside the statutory framework that Congress and the public believe govern this collection, and without any of the judicial, congressional or even executive branch oversight that comes with FISA collection.

I’ve been hesitating writing about it. That’s true, because it’s not the least little surprise to me. I’ve written a series of pieces describing how the self-congratulatory pieces claiming legislation passed in the wake of Snowden’s leaks won’t do what they say. I pointed out some of what PCLOB was likely to find when they started this review.

Then there’s bullet 4, which suggests CIA and/or NSA are collecting “within the United States or from U.S. companies.”

With regards collection “within the US,” Mayer’s post is helpful here too, pointing to loopholes for wireless and satellite communication.

The law that results is quite counterintuitive. If a communication is carried by radio waves, and it’s one-end foreign, it falls under Executive Order 12333. If that same communication were carried by a wire, though, it would fall under FISA. (Specifically, the Section 702 upstream program.)

As for how this Executive Order 12333 authority might be used beyond satellite surveillance, I could only speculate. Perhaps intercepting cellphone calls to or from foreign embassies?12 Or along the national borders? At any rate, the FISA-free domestic wireless authority appears to be even broader than the Transit Authority.

As far as collection outside the US, this may simply be a reference to providers voluntarily providing data under 18 U.S.C. § 2511(2)(f), as we know at least some of the telecoms do.

I pointed out that a consideration of the risks of surveillance under EO 12333 to US persons had to consider CIA’s use of it (then got yelled at because I pointed out enormous blindspots in “expert” reports). I noted that when cautioning about the dragnet Donald Trump would wield, you had to consider EO 12333.

I mean, there’s been a whole lot of self-congratulation since Snowden. And it has all been just that, something to brag to donors about. Because EO 12333 was always out there, and it was always possible to do virtually all of what Snowden exposed in the Section 215 program via EO 12333.

Add that to the list of unpopular things I have said over the years that leads “experts” to prefer to ignore me.

So I assume this will be ignored like all those other warnings of precisely this moment.

Here’s where I would propose to go find the CIA dragnet.

CIA always wanted to restore its Stellar Wind component

First, remember there was a CIA component to Stellar Wind, the first dragnet set up for counterterrorism (which this program is). CIA had to do its own IG Report on Stellar Wind.

Remember that one of Bill Binney’s gripes about how NSA repurposed his surveillance was that they eliminated the encryption hiding US person identifiers, effectively making it easy to spy on US persons.

Now consider that on July 20, 2004, the CIA took the lead on pushing for the adoption of “supplemental procedures” allowing the analysis of US person metadata under EO 12333. July 20, 2004 was days after Jack Goldsmith, who had shut down parts of Stellar Wind, resigned, and the agencies immediately moved to start turning all the programs he had shut down (including both surveillance and torture) back on.

It took years to restore that access to US person data (I have a theory that Alberto Gonzales was fired because he refused to reauthorize it). But starting in 2007, expanding  in 2009 (at a time when the Section 215 program was under threat), and then fully implementing in 2011 (after NSA had to shut down the PRTT program knowing full well it violated John Bates upstream order), SPCMA was rolled out.This meant that, so long as data was collected via whatever means overseas, US person metadata could be included in the analysis.

The government has been preserving its ability to use 18 U.S.C. § 2511(2)(f)

Over a series of IG Reports written by Glenn Fine, I honed in a memo that David Barron (the OLC head who, under Obama, played a similar role as John Yoo did for George Bush) wrote seemingly authorizing using 18 U.S.C. § 2511(2)(f) to get “international” data from telecoms provided voluntarily. In 2013, David Kris confirmed that that had been happening.

In March 2021 — so before he wrote the letter just declassified but after he was briefed by PCLOB on the report on the CIA dragnet — the Congressional Research Service wrote a report on 18 U.S.C. § 2511(2)(f) for Senator Wyden. It describes how it works as an exception to FISA and other criminal laws.

Accordingly, Section 2511(2)(f) identifies two broad categories of government activities that are exempt from Title III, the SCA, the Pen Register statute, and section 705 of the Communications Act of 1934:27 (1) the “acquisition by the United States Government of foreign intelligence information from international or foreign communications”; and (2) “foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system.” These two categories are further qualified so that the exception only applies if: (3) the acquisition or the foreign intelligence activity is not “electronic surveillance” as defined under FISA; and (4) an “exclusivity” clause states that ECPA, the SCA, and FISA shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, and electronic communications may be conducted. Each of these clauses is discussed in more detail below.

It describes that some things don’t count as an “acquisition” under FISA, such as something obtained from a telephone instrument being used in the ordinary course of business.

Therefore, some intelligence activities that qualify as “acquisitions” for purposes of Section 2511(2)(f) may not qualify as “electronic surveillance” under FISA because the acquisition is not accomplished through an electronic, mechanical, or other surveillance device. Although FISA does not define this phrase, ECPA provides a definition of “electronic, mechanical, or other device” to mean “any device or apparatus which can be used to intercept a wire, oral, or electronic communication.”46 However, this definition expressly excludes “any telephone or telegraph instrument, equipment or facility, or any component thereof” that is “being used by a provider of wire or electronic communication service in the ordinary course of its business.”47

This is the kind of language that was used to treat bulk metadata as a mere business record under Section 215 after the government stopped relying exclusively on voluntary production. The bulk telephony data of all Americans was just a business record.

The report written for Ron Wyden during the same period he was writing the now unclassified letter also notes that “exclusivity” only applies to “domestic” communications, not stuff acquired overseas.

The exclusivity clause is first directed at interception of domestic communications, which would not appear to be affected by the previous disclaimers regarding acquisition of foreign and international communications or foreign intelligence activities directed at foreign electronic communications systems.

In other words, if telephone companies want to voluntarily give the records they otherwise keep to the IC for the purpose of foreign intelligence, it fits in this loophole. And given the realities of telecommunication, a huge percentage of “domestic” communications can be obtained overseas.

In 2013, NYT reported that AT&T was providing CIA call records

In 2013, as a bunch of different dragnets were being disclosed while everyone was looking exclusively at Section 215 and right after Kris had confirmed this application of 18 U.S.C. § 2511(2)(f),  Charlie Savage described that the CIA had its own dragnet based on telephone records purchased from AT&T.

The C.I.A. is paying AT&T more than $10 million a year to assist with overseas counterterrorism investigations by exploiting the company’s vast database of phone records, which includes Americans’ international calls, according to government officials.

The cooperation is conducted under a voluntary contract, not under subpoenas or court orders compelling the company to participate, according to the officials. The C.I.A. supplies phone numbers of overseas terrorism suspects, and AT&T searches its database and provides records of calls that may help identify foreign associates, the officials said. The company has a huge archive of data on phone calls, both foreign and domestic, that were handled by its network equipment, not just those of its own customers.

Legally, this dragnet would fit solidly in the 18 U.S.C. § 2511(2)(f) loophole.

Obama’s codification of EO 12333 in his final days

Insanely, Obama finished the process of reconstituting the Stellar Wind program in his final days. He did so, I’ve been told, in an effort to put guidelines in place (for example, Loretta Lynch adopted rules that you couldn’t use EO 12333 data for political purposes, as if that would restrain Donald Trump). But I emphasized then precisely what Wyden and Heinrich are emphasizing now. There’s no oversight.

Which brings us to whether the EO sharing procedures, as released, might bind Trump anymore than EO 12333 bound Bush in 2001.

In general, the sharing procedures are not even as stringent as other surveillance documents from the Obama Administration. The utter lack of any reasonable oversight is best embodied, in my opinion, by the oversight built into the procedures. A key cog in that oversight is the Department of National Intelligence’s Privacy and Civil Liberties Officer — long inhabited by a guy, Alex Joel, who had no problem with Stellar Wind. That role will lead reviews of the implementation of this data sharing. In addition to DNI’s PCLO, NSA’s PCLO will have a review role, along with the General Counsels of the agencies in question, and in some limited areas (such as Attorney Client communications), so will DOJ’s National Security Division head.

What the oversight of these new sharing procedures does not include is any statutorily independent position, someone independently confirmed by the Senate who can decide what to investigate on her own. Notably, there is not a single reference to Inspectors General in these procedures, even where other surveillance programs rely heavily on IGs for oversight.

There is abundant reason to believe that the PATRIOT Act phone and Internet dragnets violated the restrictions imposed by the FISA Court for years in part because NSA’s IG’s suggestions were ignored, and it wasn’t until, in 2009, the FISC mandated NSA’s IG review the Internet dragnet that NSA’s GC “discovered” that every single record ingested under the program violated FISC’s rules after having not discovered that fact in 25 previous spot checks. In the past, then, internal oversight of surveillance has primarily come when IGs had the independence to actually review the programs.

Of course, there won’t be any FISC review here, so it’s not even clear whether explicit IG oversight of the sharing would be enough, but it would be far more than what the procedures require.

I’d add that the Privacy and Civil Liberties Oversight Board, which provided key insight into the Section 215 and 702 programs, also has no role — except that PCLOB is for all intents and purposes defunct at this point, and there’s no reason to believe it’ll become operational under Trump.

I guess I was wrong about PCLOB. It did get reconstituted, and seven years after the EO 12333 review started we’re getting dribbles about what it found!

And in fact if this whole discussion didn’t make me crabby, I’d point out details from the PCLOB report that suggest things aren’t as bad as I thought they’d get in 2017, when this dragnet was handed over to Donald Trump.

So I’m not entirely a pessimist!

PCLOB only has authority over counterterrorism programs

The only problem with being proven wrong about PCLOB, however, is even though there were efforts to expand its mandate during the Trump years, those efforts failed.

It can only look at counterterrorism programs.

So there could be a parallel program used for counterintelligence (indeed, the sharing rules make it quite clear there’s a CI purpose for it), and we’d never get oversight over it. So Wyden and Heinrich should be pushing to get a full briefing on the CI version of this, because it’s there, I would bet you a lot of money.

Anyway, if you want to find the CIA dragnet, you can look at my warnings over the last 9 years (or Charlie Savage’s report on it from 2013). Or you can look at the loophole that 18 U.S.C. § 2511(2)(f) creates, Ron Wyden was exploring closely when he was writing this letter. Another place you might look is AT&T’s earnings statements.

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