John Durham Flew to Italy to Get Joseph Mifsud’s Blackberries But Never Walked Across DOJ to Obtain James Baker’s Phones He Forgot He Knew Were There

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Back in 2019, when John Durham undercut DOJ Inspector General Michael Horowitz’s conclusion that, for all the problems in the Carter Page FISA, the investigation itself was properly predicated and there was no evidence that the investigation into Trump’s associates had been politicized, Durham pointed to what he claimed was the broader scope of his own investigation that gave him reason to believe the predication was not clearcut.

I have the utmost respect for the mission of the Office of Inspector General and the comprehensive work that went into the report prepared by Mr. Horowitz and his staff.  However, our investigation is not limited to developing information from within component parts of the Justice Department.  Our investigation has included developing information from other persons and entities, both in the U.S. and outside of the U.S.  Based on the evidence collected to date, and while our investigation is ongoing, last month we advised the Inspector General that we do not agree with some of the report’s conclusions as to predication and how the FBI case was opened.

Durham pointed both to his review of other agencies — such as the CIA review he has now completed without results — and the boondoggles he took with Billy Barr overseas as the basis (he claimed) to know more than Michael Horowitz.

Durham’s statement came shortly after he obtained two Blackberries — one dating to 2011 and the other to 2014 — that once belonged to Joseph Mifsud. By all reports, the George Papadopoulos conspiracy theories that Barr and Durham were chasing on the trip to Italy where they got those phones amounted to nothing. Taxpayers paid for Durham to fly overseas to collect information that predates the Russian operation by years, all because a sworn liar invented excuses for his crime after the fact.

It’s not that Horowitz ignored the Coffee Boy’s conspiracy theories. Rather than taking a junket to Italy to rule out Papadopoulos’ fevered speculation, Horowitz just looked in the FBI’s informant database and called the CIA.

164 During October 25, 2018 testimony before the House Judiciary and House Committee on Government Reform and Oversight, Papadopoulos stated that the source of the information he shared with the FFG official was a professor from London, Joseph Mifsud. Papadopoulos testified that Mifsud provided him with information about the Russians possessing “dirt” on Hilary Clinton. Papadopoulos raised the possibility during his Congressional testimony that Mifsud might have been “working with the FBI and this was some sort of operation” to entrap Papadopoulos. As discussed in Chapter Ten of this report, the OIG searched the FBI’s database of Confidential Human Sources (CHS), and did not find any records indicating that Mifsud was an FBI CHS, or that Mifsud’s discussions with Papadopoulos were part of any FBI operation. In Chapter Ten, we also note that the FBI requested information on Mifsud from another U.S. government agency, and received a response from the agency indicating that Mifsud had no relationship with the agency and the agency had no derogatory information on Mifsud.

[snip]

484 Papadopoulos has stated that the source of the information he shared with the FFG was a professor from London, Joseph Mifsud, and has raised the possibility that Mifsud may have been working with the FBI. As described in Chapter Ten of this report, the OIG searched the FBI’s database of Confidential Human Sources (CHSs) and did not find any records indicating that Mifsud was an FBI CHS, or that Mifsud’s discussions with Papadopoulos were part of any FBI operation. The FBI also requested information on Mifsud from another U.S. government agency and received no information indicating that Mifsud had a relationship with that agency or that the agency had any derogatory information concerning Mifsud.

This comparison is one reason it is so damning that Durham just admitted that he never sought to obtain (and falsely claims he never knew about) two phones formerly used by James Baker that were in the custody of DOJ IG all that time.

[I]n early January 2022, the Special Counsel’s Office learned for the first time that the OIG currently possesses two FBI cellphones of the former FBI General Counsel to whom the defendant made his alleged false statement, along with forensic reports analyzing those cellphones. Since learning of the OIG’s possession of these cellphones, the Government has been working diligently to review their contents for discoverable materials. The Government expects to make those materials available to the defense later this week.

The John Durham investigation made a big effort to obtain two dated phones based on a conspiracy theory, but didn’t even seek to obtain phones he should have known were in DOJ possession before indicting someone based off the single witness testimony of that person. Crazier still, in an update to the Court, Durham admitted that he learned but then forgot that Horowitz had obtained one of them during his prior investigation of Baker for a suspected leak.

This is not the only damning admission of investigative negligence in John Durham’s request for an extension of the deadline — which turns out to be a request for the deadline he originally requested — for what he calls discovery (but what is actually basic investigative steps he should have taken long before indicting Sussmann).

For example, in his indictment of Michael Sussmann, Durham gives the impression that Rodney Joffe only obtained data from the US in 2016 to hunt down damning data about Donald Trump. But in response to a Sussmann request, Durham conducted a review of all the 17,000 unclassified emails involving the email domain from one of Joffe’s companies, finding 226 from 2016 alone that pertain to this issue. As Sussmann has argued, lying to hide Joffe’s involvement in this would be counterproductive given how closely he works with FBI.

[T]o the extent the Indictment alleges that the FBI General Counsel and FBI might have done various things like ask “further questions,” taken additional or more incremental steps,” “allocated its resources differently or more efficiently,” or “uncovered more complete information” but for Mr. Sussmann’s purported false statement, the Special Counsel should be required to particularlize those potential questions, additional steps, resource allocations, or more complete information. Id. This is particularly necessary because [Joffe] — far from being a stranger to the FBI — was someone with whom the FBI had a long-standing professional relationship of trust and who was one of the world’s leading experts regarding the kinds of information that Mr. Sussmann provided to the FBI. 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.

Similarly, the indictment makes much of the fact that Sussmann shared information with the NYT that ultimately led to an infamous October 31 story. It suggests without evidence that Sussmann — or even the Congressional sources who obviously played a role in the story — were the only ones pushing the Alfa Bank story to the NYT. It further suggests, falsely, that all the material NYT obtained on Alfa Bank came from Joffe’s effort. Crazier still, until Sussmann asked, Durham hadn’t pulled the details from a meeting the FBI (one that included James Baker and Bill Priestap, almost certain to be witnesses at Sussmann’s trial) had with the NYT.

On September 27, November 22, and November 30, 2021, the defense requested, in substance, “any and all documents including the FBI’s communications with The New York Times regarding any of [the Russian Bank-1] allegations in the fall of 2016.” In a subsequent January 10, 2022 letter, the defense also asked for information relating to a meeting attended by reporters from the New York Times, the then-FBI General Counsel, the then-FBI Assistant Director for Counterintelligence, and the then-FBI Assistant Director for Public Affairs. In response to these requests, the Special Counsel’s Office, among other things, (i) applied a series of search terms to its existing holdings and (ii) gathered all of the emails of the aforementioned Assistant Director for Public Affairs for a two-month time period, yielding a total of approximately 8,900 potentially responsive documents. The Special Team then reviewed each of those emails for relevant materials and produced approximately 37 potentially relevant results to the defense.

Pulling these records would have been just the first step Durham should have taken to figure out what other entities might have been pushing this story to the NYT and what specific allegations those entities were pushing to test some of the insinuations Durham makes in the indictment. Yet Durham never thought to look for these records before he indicted Sussmann.

Still, Durham’s failure to do anything to understand what DOJ IG had done in its parallel investigation is the most remarkable.

Before Durham was formally appointed, Billy Barr’s top aide Seth DuCharme seemed to be attempting to deconflict the investigation by bringing the two men together to talk about scope.

Perhaps Durham’s public rebuke of Horowitz undermined any cooperation since then (though Durham was certainly happy to take the Kevin Clinesmith case that Horowitz had wrapped up in a bow and claim it as his only visible sign of life for years).

But according to Durham’s filing, he didn’t reach out to Horowitz’s office until three weeks after indicting Sussmann (and perhaps more importantly, less than four weeks before indicting Igor Danchenko, in whose prosecution the DOJ IG investigation plays a central role). Durham presents his team reaching out to another unit at DOJ that he knew to have relevant material as some great feat of diligence rather than something he should have done years earlier.

On October 7, 2021, at the initiative of the Special Counsel’s Office, the prosecution team met with the DOJ Inspector General and other OIG personnel to discuss discoverable materials that may be in the OIG’s possession. The Special Counsel’s office subsequently submitted a formal written discovery request to the OIG on October 13, 2021, which requested, among other things, all documents, records, and information in the OIG’s possession regarding the defendant and/or the Russian Bank-1 allegations. The Special Counsel also requested any transcripts or other documents within the OIG’s possession containing certain search terms. In response, the OIG provided, and the Government has produced to the defense in redacted form, relevant transcripts of interviews conducted by the OIG during its review of the FBI’s Crossfire Hurricane investigation.

That’s what led Durham to discover, for the first time, the anonymous tip of the same sort — weird forensic data discovered by Joffe — that Sussmann shared with DOJ IG in the same time period Durham was investigating.

It wasn’t until Durham asked the FBI Inspection Division for call data associated with Baker’s phone this month that they told him — because Durham had apparently never asked, not even given the endless focus on Peter Strzok and Lisa Page texts Horowitz obtained way back in 2017 — that DOJ IG had two phones that Baker had used. After Durham publicly claimed not to have known about the phones, DOJ IG then informed him that he learned DOJ IG obtained one of them in 2018 during a different investigation of Baker.

Durham’s belated outreach to DOJ IG may in fact be what first led Durham to discover the interview DOJ IG did with Baker on July 15, 2019 — shortly after deconfliction meetings in advance of Durham’s appointment — in which Baker said something that materially conflicts with the statements Baker has made to Durham, statements that in fact confirm Sussmann’s story.

Durham also obtained a transcript — the only one he provided to Sussmann in unredacted form — about some other investigation that Horowitz is currently conducting.

the transcript of an interview conducted by the DOJ Office of Inspector General in connection with an administrative inquiry that is currently ongoing;

And now, part of the reason Durham is asking for a delay in his existing deadline is that requests of Horowitz he should have made at the beginning of any investigation into whether Sussmann falsely set up Trump are proving too onerous for DOJ IG (which is working on a slew of reports on events that aren’t five years past) to do on their own.

Third, in January 2022, the OIG informed the Special Counsel’s Office for the first time that it would be extremely burdensome, if not impossible, for the OIG to apply the search terms contained in the prosecution team’s October 13, 2021 discovery request to certain of the OIG’s holdings – namely, emails and other documents collected as part of the OIG’s investigation. The OIG therefore requested that the Special Counsel’s Office assist in searching these materials. The Government is attempting to resolve this technical issue as quickly as possible and will keep the defense (and the Court as appropriate) updated regarding its status.

At this point, four months after indicting Michael Sussmann and two years after claiming he knew better than Michael Horowitz, Durham doesn’t know whether he even consulted the same records that Horowitz did.

As noted, if the same is true with respect to the Danchenko case, it is potentially lethal to Durham’s case, because his investigative theory (which is that Danchenko is responsible for FBI’s failure to act on problems with the dossier) is fundamentally incompatible with Horowitz’s (which is that it was FBI’s fault for not acting).

Durham does know, however, that he didn’t consult something that Horowitz did: Baker’s actual phones.

And that may have a real impact at trial.

At a status conference, Durham’s prosecutors dismissed the possibility that they had bullied Baker into telling the story they wanted him to tell on threat of prosecution: that Sussmann affirmatively lied about having a client, which conflicts with several other claims he had previously made under oath. They said (in a scheduling motion), instead, that once Durham’s prosecutors refreshed Baker’s memory with notes from Bill Priestap and someone else he spoke with after the Sussmann meeting, Baker remembered that Sussmann had actually affirmatively lied.

Mr. Baker made these statements before he had the opportunity to refresh his recollection with contemporaneous or near-contemporaneous notes that have been provided to the defense in discovery. Indeed, the defendant’s motion entirely ignores law enforcement reports of Mr. Baker’s subsequent three interviews with the Special Counsel’s Office in which he affirmed and then re-affirmed his now-clear recollection of the defendant’s false statement.

Effectively, they claimed they had better information when questioning Baker than anyone previously had.

Durham is going to have to present that to the jury, probably through the testimony of one of the FBI agents involved.

But that claim only works if Durham’s team had a more complete record than Horowitz’s team did when they asked the same questions. Durham doesn’t know whether that’s true or not yet, because he never bothered to figure out what Horowitz had. The delay Durham wants to do investigative work he should have done years ago is a delay, in part, to see whether that claim has any basis in fact. (And at least in December, Durham had only provided a heavily redacted transcript of what went on between Baker and the IG.)

All parties know one thing, however: That when Horowitz conducted questioning of Baker in 2019 about this topic, unlike Durham, he had consulted with Baker’s own phone. Durham can no longer claim to have been more thorough than Horowitz, because he just admitted he didn’t even bother consulting Baker’s phones and is only now getting around to checking what else Horowitz might have consulted that he did not.

John Durham indicted Michael Sussmann on the last possible day he could have under the statutes of limitation. And now, he’s asking for a delay in discovery deadlines (if not a delay in Sussmann’s trial), so he can do basic investigative work he should have done before the statutes of limitation tolled.

Update: Judge Cooper has granted Durham’s extension.

Update: Holy shit it gets better! Durham just had to admit that, in an earlier investigation of Baker, he learned DOJ IG had obtained this phone.

After reviewing the Special Counsel’s Office’s public filing, the DOJ Office of Inspector General (“OIG”) brought to our attention based on a review of its own records that, approximately four years ago, on February 9, 2018, in connection with another criminal investigation being led by then-Acting U.S. Attorney Durham, an OIG Special Agent who was providing some support to that investigation informed an Assistant United [sic] Attorney working with Mr. Durham that the OIG had requested custody of a number of FBI cellphones. OIG records reflect that among the phones requested was one of the two aforementioned cellphones of the then-FBI General Counsel. OIG records further reflect that on February 12, 2018, the OIG Special Agent had a conference call with members of the investigative team, including Mr. Durham, during which the cellphones likely were discussed. OIG records also reflect that the OIG subsequently obtained the then-FBI General Counsel’s cellphone on or about February 15, 2018. Special Counsel Durham has no current recollection of that conference call, nor does Special Counsel Durham currently recall knowing about the OIG’s possession of the former FBI General Counsel’s cellphones before January 2022.

This post has been updated to reflect how Durham learned he already knew of the phones.

Timeline of Sussmann discovery

September 16, 2021: Michael Sussmann indictment

September 27: Sussmann asks for:

  • All evidence from wiretaps or eavesdropping (there appears to be none)
  • All communications regarding Sussmann’s security clearance reviews (900 pages)
  • Any documents pertaining to FBI treatment of anonymous tips (with repeated follow-ups)
  • All FBI communications with the NYT regarding Alfa Bank allegations in 2016 (with repeated follow-ups)
  • Materials regarding relationship between Joffe’s companies and government agencies; FBI results for 2016 result in 226 emails

October 7: Durham team meets with DOJ IG to discuss discoverable material in DOJ IG possession

October 13: Durham issues a formal discovery request to DOJ IG

October 13: Sussmann asks for Priestap’s notes

October 20: Sussmann reviews Priestap’s notes

October 25: Sussmann reply memo reveals he still hasn’t received taxi billing records and other identifiable Brady material, including an “unclassified grand jury testimony of an immunized witness, that either exculpate[s] Mr. Sussmann or conflict[s] with the core allegations that the Special Counsel has made against him”

October 29: Sussmann’s team obtains clearance

November 3: Igor Danchenko indictment

Week of November 15: Durham turns over some, but not all, of Baker’s statements, including conflicting DOJ IG fragment

November 22: Sussmann follow-up on request for FBI communications with NYT; after previously accepting June trial date, Durham proposes July 25

November 30: Sussmann follow-up on request for FBI communications with NYT; says Durham is missing some of the CIA employees in February 9, 2017 meeting

December 6: Sussmann moves for trial date, describing that Durham needs four more months for discovery

December 7: Durham response; Sussmann first gets Baker grand jury transcripts; just three grand jury transcripts provided by that point

December 8: Status conference at which Sussmann attorney reveals they’ve just seen Baker grand jury transcript

December 10: Sussmann asks for records “any records reflecting any consideration, concern, or threats from your office relating to those individuals’ or their counsels’ conduct. . . and all formal or informal complaints received by you or others”

December 14: Scheduling order

December 17: DOJ IG gives Durham forensic report arising from previous Sussmann tip

December 23: Durham gives Sussmann forensic report from DOJ IG tip

Early January 2022: OIG says it can’t get through the discovery on Crossfire Hurricane investigation by itself

January 5: Durham asks FBI Inspection Division about call log data for Baker’s phone

January 6:  FBI Inspection Division tells Durham that DOJ IG has Baker’s phones

January 7: Durham asks DOJ IG about the phones

January 10: DOJ IG provides the information on Baker’s phones; Sussmann asks for information regarding meeting with NYT, James Baker, Bill Priestap, and Michael Kortan (result did not come up on searches, so Durham had to search through 8,900 pages of Kortan’s records, resulting in 37 results)

January 20: Durham asks to have until “the end of March” for discovery (effectively, his originally requested deadline); Sussmann tells Durham he met with DOJ IG in person in March 2017 about anonymous tip

January 21: Sussmann response agreeing to February 11; DOJ IG confirms they did meet with Sussmann

January 25: Durham submits filing claiming he never knew DOJ IG had Baker’s phones (in response DOJ IG reminds Durham he already knew of one of the phones)

January 26: DOJ IG provides second forensic reports on the phones to Durham

January 28: Unclassified discovery originally due; Cooper grants extension to March 18 in the morning; Durham provides initial forensic reports to Sussmann and then (at 11:52PM) informs court he had previously been informed of Baker’s phone years ago

February 11: Classified discovery due

February 18: Motion to Dismiss due

March 18: 404(b) and remaining Jencks and Giglio due

March 25: Durham’s initial and second requested discovery deadline

May 16: Existing trial date

 

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Brandon Straka Assures MAGAts That He Didn’t Share Evidence of Any Pre-January 6 Crimes

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Brandon Straka released a post-sentencing statement announcing that he is self-deplatforming to Rumble and GETTR and claiming that the “left wing media” turned DOJ’s discussion of Straka’s cooperation into a narrative that “Trump Ally Turning Over Significant Information About January 6th.” [emphasis Straka’s] The closest to that phrase I can find (aside from Straka’s own comments posted to 4chan) is Politico, which is owned by right wingers, as well as the gay press.

Straka may in fact be more worried that the right wing press labeled him a snitch, not least because he uses the phrase later in his own statement.

The statement is interesting for several reasons.

First, Straka doesn’t deny the obstruction of the vote count that he should have been charged with. He explains asking his followers to “HOLD. THE. LINE” after he had been instructed by Ali Alexander, ““Everyone get out of there … The FBI is coming hunting,” that this was just about a peaceful protest, not physically occupying the Capitol to prevent Joe Biden’s win from being certified.

Some of my comments on January 6th and the following days have been highly scrutinized and my intent speculated. In particular, one stated to “HOLD. THE. LINE.” in addressing the people at the Capitol. You should all know that I was present on the East side of the Capitol and never witnessed any of the violence taking place on the West side that day. I shot video of the thousands of peaceful protestors standing on the East side singing songs and holding signs. This was the scene when I left the grounds. My statement was to encourage the thousands of peaceful protestors to stand their ground- after all, peaceful protests are still protected by our constitution, right?

Straka doesn’t deny being told about the violence on the west side. He falsely claims to have filmed only peaceful activities, when he in fact filmed himself encouraging rioters as they stole a cop’s shield.

More importantly, he doesn’t address that he was encouraging these “protestors” to continue to obstruct the vote certification.

And, again, he was doing so after he himself had left after having been warned about an incoming FBI presence.

Particularly given something that Straka said to Trump appointee Dabney Friedrich at sentencing (which I’ll return to once I find the best video), I find this comment from Straka of particular interest.

In the three and a half years that I have been working in the world of politics, I have not attained ANY INFORMATION of ANY KIND about any criminal wrongdoing of any person in the MAGA movement. That includes every person from the very bottom of up to Donald Trump and every person in between. It would be impossible for me to “snitch” or “turn people over” because I have NOTHING to share.

I do not believe that there was any kind of plot or scheme to initiate violence on January 6th. I do not believe that any kind of plot or plan or scheme will ever be discovered because I feel 100% certain no such thing exists. Like most of you, I’ve employed common sense and come to the conclusion that a very small percentage of people did some very bad things that day, and that this was a spontaneous riot that broke out without planning. If any evidence of anything ever comes to light, I will be as shocked as anybody else.

I have NO INFORMATION of any kind of share about any crime others in the MAGA movement have committed at any point, even prior to January 6th.

Straka denies there was a scheme to initiate violence. That’s not the accusation though. The scheme — laid out in writing by Ali Alexander’s associates in the Proud Boys — was to spark others to commit violence, and then blame Antifa for starting things.

But he, again, does not deny there was a plot to obstruct the vote certification.

More interesting, given DOJ’s apparently belated discovery of Straka’s activities leading up to January 6, is his statement denying knowledge of crimes “prior to January 6th.”

Particularly given the way Straka sees what came earlier as separate from January 6th, Straka’s plea deal might not cover crimes he committed in that earlier period.

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The Paulie Plot in Ukraine

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Last weekend, the UK formally released an intelligence assessment that part of Russia’s plans in Ukraine involve a plot to replace Volodymyr Zelenskyy with a pro-Kremlin functionary.

The NYT version of the story noted that the four people named in the alleged plot all have ties to Paul Manafort.

All four of the other Ukrainians named in the communiqué once held senior positions in the Ukrainian government and worked in proximity to Paul Manafort, former President Donald J. Trump’s campaign manager, when he worked as a political adviser to Ukraine’s former Russian-backed president, Viktor F. Yanukovych. After Mr. Yanukovych’s government fell in 2014, they fled to Russia.

It also claimed that, because of a division of labor within the Five Eyes, this intelligence came from the UK.

In Washington, officials said they believe the British intelligence is correct. Two officials said it had been collected by British intelligence services. Within the informal intelligence alliance known as “Five Eyes,” Britain has primary responsibility for intercepting Russian communications, which is why it played a major role in exposing Russian interference in the 2016 elections.

I noted that you might make such a claim if the collection point (reflected in the Manafort tie) were not a legal NSA target to the US.

Indeed, NBC’s Ken Dilanian explained (but did not include in his story) that this was US intelligence announced by the UK.

It would make sense that this kind of intelligence came from the US — though if it did, it might well come from the FBI, not NSA.

When Manafort traded campaign strategy to Russia for relief from his debt to Oleg Deripaska on August 2, 2016, his cooperation in a series of similar efforts to install a Russian functionary to head Ukraine was part of the deal. Citing numerous documents obtained from Manafort’s devices, Mueller made public Manafort’s participation in the effort through the time he went to jail in 2018.

We can be certain that FBI has continued its investigation of such issues. We can be sure of that because we know (in part from Treasury’s increasing focus on Kilimnik) that FBI has developed a better understanding of Konstantin Kilimnik’s role in both 2016 and his ongoing efforts to undermine US democracy in 2020. We know that because DOJ continues to protect large swaths of  Mueller’s files on Kilimnik’s other American partner, Sam Patten, which significantly focused on who was who in Ukraine and the various tools Russia used to manage the country via client politicians. The same is true of Rick Gates’ interviews. But we also know that, thanks in part to Trump’s continued ties to anti-democratic efforts in Ukraine, the FBI has continued to investigate what has been going on in Ukraine. Not only has EDNY conducted an investigation into Andrii Derkach, but Special Master Barbara Jones just handed over a bunch of Rudy Giuliani’s communications involving such issues to the FBI.

One thing we learned from all those investigations was that Paul Manafort was the guy Oleg Deripaska had employed, for years, to use the tools of modern campaigning, leavened by a great deal of corruption, to install puppet governments who would cater to Deripaska’s business interests. In 2016, Russia deployed Manafort to the United States to do the same thing in the US.

With the distance of almost six years, it may be safe to say that Russia succeeded in their 2016 attempt to interfere in the US election not so much from a failure of US intelligence collection in Russia (after all, the FBI warned the DNC it was being hacked in real time). It was — in addition to a misunderstanding of the WikiLeaks operation — a failure of US intelligence collection in Ukraine, whence the human side of the operation was significantly launched. The US has dedicated a good deal of energy to addressing that failure in recent years, though Russia continued to use Ukraine as a platform from which to undermine US democracy through the 2020 election.

Ukraine was then, as now, the test ground for Russia’s larger efforts to either subject “democracy” to the whims of kleptocracy or discredit democracy beyond the ability to govern. Among the things Russia tested on that ground was the 2017 NotPetya attack, which did devastating damage to a slew of companies who did nothing more than do business with Ukraine; I would be surprised if Putin hadn’t at least entertained similar efforts in the months ahead.

Before 2016, the US had the hubris to believe its own democracy was immune from such efforts (and that its tolerance for money laundering would not, in fact, foster kleptocracies on the other side of the world that could damage the US in turn).

Amid debates about how (or whether) the US should respond to Russia’s aggression, some have raised real questions whether, in the wake of January 6, the US has any place lecturing Ukraine about its democracy and whether the US wouldn’t be better, instead, putting its own house in order. It’s a fair question. But it misunderstands how 2016 led directly to January 6. It also misunderstands Russia’s project in Ukraine and beyond, which is of a piece with its earlier attack on  American democracy.

We may not have a NATO commitment to defend Ukraine from Russia’s assault (though we do have a NATO commitment to defend NATO allies that Russia has likewise threatened). But we’ve recently seen that attacks on Ukraine are just the prototype for larger attacks elsewhere.

Update: Both Jonathan Swan and Jonathan Weisman have pieces out today attempting to explain why Tucker Carlson and Marjorie Greene Taylor are rooting for Putin in his aggression against Ukraine that don’t mention that Putin helped get Trump elected.

The backstory: Two observable shifts have happened in the GOP electorate over the past 15 years. The first is a growing skepticism about foreign intervention in general — frustration and anger still fueled by the disastrous wars in Iraq and Afghanistan.

  • The second is a more recent warming towards Russia — initiated by the party’s most powerful figure, Donald Trump.
  • Trump’s rhetoric about Putin was a far cry from 2012 when the GOP presidential nominee Mitt Romney warned that Russia was America’s “number one geopolitical foe.” (Prominent Democrats mocked Romney at the time but in the age of Trump endorsed his view and apologized).
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“Let’s Go Brandon!” Straka’s Cow Manure

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Update: Judge Friedrich sentenced Straka to 3 months home confinement and 36 months of probation. She repeatedly described his offense as worse than that of trespassers given that he encouraged them to breach the Capitol and defended the attack after the fact.

Brandon Straka did not start fundraising for the cops whose assault he cheered …

… Until a week after his second batch of leniency letters started coming in, and over 45 days after he pled guilty.

In fact, there’s no evidence in the public record that Straka ever gave any of that money to cops, not even the 75% he claimed to plan to donate, much less the 25% he was skimming from the top. There’s just a dated claim that it would be donated “at the conclusion” of a year that ended 20 days before the filing claiming it would be donated.

Since January 6, Brandon has spent a lot of hard time reflecting on his role in the events that took place that tragic day. He has offered strong condemnation for any violence used that day, especially the violence perpetrated against police. Additionally, Brandon has been actively using his platform to support law enforcement officers. Upon visiting the #WalkAway Foundation website, the first option presented is to donate to the “Refund the Police” initiative: “#WalkAway will donate 75% of the funds raised to pro-police organizations in [the fourteen (14) cities most affected by defunding initiatives]. The other 25% will be used for the cost of overhead for this campaign.”2 This initiative will close at the conclusion of this year; and is close to having raised over $18,000.00 at this time.

2 See #WalkAway Foundation Homepage last accessed Dec. 14, 2021, available at https://www.walkawayfoundation.org/.

That’s important because Brandon Straka really wants to continue doing such grifting as a public service in lieu of having Probation monitor his social media and finances, much less serve jail time for his role in inciting an insurrection. He even asks to pay $5,000 as a fine to be allowed to dodge further scrutiny of his grift.

The Defendant respectfully requests that he be sentenced to either a terminal disposition of time served for the two days he has already spent in custody, or in the alternate, a term of home confinement and community service. Defendant requests that he not be placed on probation. Defendant also requests that the Court impose the maximum fine permitted for this offense, which is $5,000.

[snip]

If the Court would allow Brandon to have included in his sentence a stronger portion of community service rather than a sentence of Probation, the country at large will be better served. The nature of Brandon’s job requires that he often travels, making supervision more difficult and costly—and to what end? Brandon has already been on Pretrial Release for nearly a year with no violations. He clearly has the capability to contribute to the greater good through fundraising and leading others into service with him. While the Probation Office’s Recommendation sees Brandon’s following as a reason for concern3, it is the Defendant’s belief, and Counsel for the Defendant’s belief, that his talents can be put to better use than verifying that he is in compliance with certain conditions of Probation—that if he is given true freedom, that he will use that freedom in service of his country.

[snip]

Brandon also objects to the recommendation by the Probation Officer that he be subjected to a discretionary condition of Probation that monitors his electronic communications service accounts, including email accounts, social media accounts, and cloud storage accounts. Brandon also objects to his financial activity being monitored by the Probation Office. These discretionary conditions of Probation are not sufficiently relevant to the offense committed. In United States v. Taylor, 796 F.3d 788 (7th Cir. 2015), the Seventh Circuit reversed a restriction on the defendant’s computer ownership and internet access in a bank larceny case, stating that the restriction was not reasonably related to his prior conviction for incest. In Brandon’s case, emailing, using social media, and using cloud storage has nothing to do with his offense.

3 The government has never alleged, and there is no evidence, that Brandon used his following to commit any criminal activity. Brandon is charged for conduct he committed at the Capitol in his personal capacity.

Whether or not there is evidence that Straka used his online presence to prevent the peaceful transfer of power (and there is, though DOJ may have discovered it after entering into this dud plea agreement), Straka’s own story materially conflicts regarding what he did on January 6, 2021.

Straka’s own letter to Judge Dabney Friedrich implies that he went directly from Trump’s speech to the Metro and because he did so he had no way of knowing there was a violent riot going on.

I sat in the front row at the Ellipse and listened to the President of the United States speak. He concluded by telling the crowd that we were all now going to march “peacefully” to the Capitol. Everything felt perfectly normal and exactly in accordance with the schedule of events for that day. I then walked to the DC Metro On the way to the Capitol, I began getting text messages from people I knew who were at home watching the news on television indicating that people were going inside the Capitol building. Shortly after, I started getting numerous messages from the other scheduled speakers, some asking if our event was still happening, if it was now cancelled- it was total confusion. I was of 2 minds at this point. Either,

#1) The event is still happening and I’m still speaking, and that’s what I came all the way to DC to do. Or

#2) The event may no longer be happening, but SOMETHING is going on at the Capitol right now, and I want to be there to capture footage of whatever it is that’s going on. [my emphasis]

His sentencing memo describes that he came to DC to speak on January 5, and only stayed over because he was one of the very inflammatory people who were offered speaking slots on January 6 but who got canceled (!!!) at the last moment.

Prior to the January 6, 2021 rally at which then-President Donald Trump was set to speak, Brandon was set to speak at a rally held at Freedom Plaza on January 5, 2021 and travelled to Washington, D.C. for that purpose. Brandon remained in Washington, D.C. after the rally on January 5, 2021, as he was a potential slated speaker at a rally the next day. On the morning of January 6, 2021, Brandon arrived at the Ellipse at 5:00 a.m. in anticipation of then-President Trumps’ rally to start. Up until the time Brandon arrived at the event, he believed that he might speak at that event.

More problematic still, Straka’s sentencing memo describes that in-between Trump’s rally and the riot, Straka went to the Willard Hotel, where a bunch of his associates were plotting to steal the election (he doesn’t mention that fact), and where his “security guards” alerted him that it was too dangerous to walk the 28 minutes to the Capitol, which is why he instead took the Metro to the far side of the Capitol, spending perhaps 38 minutes in transit.

When President Trump concluded his remarks around 1:00 p.m., a wave of protestors left the Ellipse and headed toward the Capitol. At this time, Brandon left the Ellipse and traveled to the Willard Hotel to meet with two of his employees who were designated as security guards. Upon the advice of his security guards, Brandon did not participate in the march to the Capitol and instead took the Metro to the Capitol. While riding on the Metro, Brandon began receiving push notifications on his phone about what was happening at the Capitol. The Metro did not stop at the Capitol, and Brandon got off at the next stop—which was roughly an 18-minute walk from the Capitol.

By the time Brandon arrived, at around 2:40 p.m. (a full twenty minutes after the Capitol had been cleared), the outer barriers and fencing that had previously surrounded the Capitol were largely displaced. Brandon arrived and approached the East side of the Capitol, where things were calmer; and Brandon did not notice anything out of the ordinary during most of his walk to the Capitol.

And that version is off by at least two and possibly 22 minutes off from Straka’s sworn statement of offense.

Straka got off the metro on January 6, 2021 sometime between 2 p.m. and 2:20 p.m. He then knowingly entered the restricted area at the U.S. Capitol Grounds.

The revised story would have him arriving to the Capitol seven minutes after (prosecutors noted in their own sentencing memo) he was informed his speech was delayed because “they stormed the Capitol.”

At 2:33 pm on January 6, 2021, Michael Coudrey, the national coordinator for Stop the Steal, sent a message to a group chat telling those in the chat that the event that Straka was scheduled to speak at would be delayed because “They stormed the capital[sic].”

And that’s important, because Straka claims that when he said some inflammatory things on social media, he didn’t know about the violence.

Brandon made statements on social media that were in retrospect irresponsible and potentially inflammatory. Any statements Brandon made must be considered in context with the fact that Brandon had not witnessed the violence committed on the west side of the Capitol and he had not seen what was broadcasted on television. Once understanding the full context of the events, Brandon retracted and removed his prior statements.

Finally, it’s curious that DOJ is relying on a ProPublica story for the notice from Coudry (to say nothing of Ali Alexander’s warning, “Everyone get out of there … The FBI is coming hunting”). That’s because Straka claims to have provided prosecutors passwords to whatever phones he still had in his possession when the FBI searched his apartment.

Brandon cooperated fully with law enforcement, including providing two proffers and turning over the password to all devices seized as part of the search warrant executed on his apartment. Brandon provided information on individuals the government was investigating in separate cases and answered all questions posed by the government.

There’s abundant evidence that Straka is bullshitting prosecutors, and was bullshitting them when he got a sweet plea deal.

Indeed, with the inconsistencies between his letter to Dabney Friedrich and his own sentencing memo, the evidence shows he’s bullshitting Judge Friedrich.

I don’t know what excuses Probation scrutinizing Brandon Straka’s grift more closely than the FBI. I don’t know what targets DOJ was so desperate to implicate that they missed the target sitting in front of them.

But even his own sentencing package makes it clear he’s shoveling cow shit.

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Five Percent of Mueller Pre-Grand Jury Interviews Pertain to Still Ongoing Investigations

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The other day, I asked Jason Leopold where the Mueller FOIA release was this month. DOJ remains under obligation to hand over hundreds of pages a month in response to his FOIA, and they usually hand it over in the first days of the month.

He shared this month’s release, which makes it clear DOJ did something pretty dickish to him. DOJ turned over notice it was withholding 696 consecutive pages of materials, all of which invoke the b73 exemption for grand jury materials. Effectively, DOJ just dumped a bunch of interviews conducted before grand jury testimony, all of which DOJ has been withholding under that grand jury exemption, to fulfill their monthly obligation.

And because these are consecutive pages, we can’t glean information from them in the same way we can pages (such as those pertaining to Steve Bannon’s January 2019 Grand Jury appearance) turned over as part of other releases.

But there is, however, one detail that we can learn from this. Of the 696 grand jury related pages DOJ withheld, 40 of them also invoke the b7A exemption for an ongoing investigation.

That means that, in addition to the grand jury exemption, more than 5% of the pages were also withheld for ongoing investigations. We have no idea if these interviews are representative of the total. We also can’t see how many individual interviews these records include. But of this batch, it’s over 5%.

To be sure, given what we’ve seen of late, I don’t think that means we’re going to see indictments based on the Trump cases. While individual pages of the Stone, Bannon, and Flynn materials released in the last year reflect ongoing investigations, a whole lot of Sam Patten’s materials do (or at least did, last summer).

Patten, you’ll recall, was sort of a mirror image for Konstantin Kilimnik to Paul Manafort, another American political consultant that he used to access US networks. Patten was referred to Mueller by the Senate Intelligence Committee because he lied in his interview with the Committee. After that he entered into a cooperation agreement where he shared a whole bunch of what he had learned about how Russia interferes in Ukrainian politics (and through that, in US politics).

That is, my guess is that a bunch of these ongoing investigations pertain to stuff like counterintelligence investigations leading to the Treasury sanctions imposed yesterday, including one person who had worked with Kilimnik to interfere in the 2020 US elections.

Whatever it is, though, the only value of DOJ pulling this dickish move is to give a sense of how much of this material remains ongoing.

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Bennie Thompson to Ivanka: Come In from the Conspiracy

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Even though you read this site, you may not recognize the names Brad Smith or Marshall Neefe. Even though I’ve focused some attention to his case, you may not remember the significance of Ronnie Sandlin. You might not even remember that the Oath Keeper conspiracy was named after retired Navy officer Thomas Caldwell before he was spun off into the sedition conspiracy named after Stewart Rhodes.

But those are all references of import to understand this footnote in the letter Bennie Thompson sent to Ivanka Trump, inviting her to testify voluntarily.

The Select Committee is aware of the motivation of many of the violent rioters from their posts on social media, from their contemporaneous statements on video, and from the hundreds of filings in federal court.11

11 For example, many defendants in pending criminal cases identified President Trump’s allegations about the “stolen election” as a motivation for their activities at the Capitol; a number also specifically cited President Trump’s tweets asking that supporters come to Washington, D.C. on January 6th. See, e.g., United States of America v. Ronald L. Sandlin https://www.justice.gov/opa/page/file/1362396/download: “I’m going to be there to show support for our president and to do my part to stop the steal and stand behind Trump when he decides to cross the rubicon.” United States of America v. Marshall Neefe and Charles Bradford Smith https://www.justice.gov/usao-dc/case-multi-defendant/file/1432686/download: “Trump is literally calling people to DC in a show of force. Militias will be there and if there’s enough people they may fucking storm the buildings and take out the trash right there.” United States of America v. Caldwell et al. https://www.justice.gov/usao-dc/case-multi-defendant/file/1369071/download: “Trump said It’s gonna be wild!!!!!!! It’s gonna be wild!!!!!!! He wants us to make it WILD that’s what he’s saying. He called us all to the Capitol and wants us to make it wild!! ! Sir Yes Sir!!! Gentlemen we are heading to DC pack your shit!!”

The Select Committee could have chosen any number of individual defendants to support the claim that Trump was the motivating force for the participants of the mob that stormed the Capitol on January 6.

It did not.

Instead, without saying that it had, it cited three conspiracy indictments: a conspiracy that involved totally random guys who met online coming armed to DC and assaulting officers to break open the East doors and break into the Senate chamber, a conspiracy where guys armed themselves to come to DC based on a motivation that, “Why shouldn’t we be the ones” to kick off war, and a conspiracy that has now officially been charged as sedition.

What the Select Committee just said to Ivanka, very subtly (and without the hotlinks to these court filings to make it easy) is that multiple organizers across multiple conspiracies — all involving arming themselves before traveling to DC — acted on Trump’s comments in December and January as instructions.

What the Select Committee has laid out in this footnote is that key members of conspiracies that led to violent assaults on January 6 entered into an agreement with Donald Trump to engage in violence.

Other coverage of this letter has focused on the many other scathing details included in it:

  • Proof that Trump knew he was making an illegal request of Mike Pence (and that Ivanka knew such pressure was wrong)
  • Proof that multiple people attempted to get Trump to call off the violence (and that staffers repeatedly asked Ivanka to intercede to get him to do so)
  • Proof that advisors including Kaleigh McEnany and Sean Hannity attempted to get Trump to disavow these efforts

In response to the letter, Ivanka issued a statement making it clear that on January 6 she disavowed the violence caused by her father.

Ivanka Trump just learned that the Jan. 6 Committee issued a public letter asking her to appear. As the Committee already knows, Ivanka did not speak at the January 6 rally. As she publicly stated that day at 3:15pm, “any security breach or disrespect to our law enforcement is unacceptable. The violence must stop immediately. Please be peaceful.”

But that doesn’t account for another detail of the letter that has gotten far less attention than the eye-popping new details about Trump’s actions: Chairman Thompson reminded Ivanka (in a paragraph that seemingly addresses another topic) not just of the requirements of the Presidential Records Act, but also that she got formal notice of those requirements in 2017.

The Select Committee would like to discuss this effort after January 6th to persuade President Trump not to associate himself with certain people, and to avoid further discussion regarding election fraud allegations. We also wish to share with you a memorandum from former White House Counsel Donald McGahn (attached), regarding the legal requirements on White House personnel to turn over to the National Archives any work-related messages from personal devices. We wish to be certain that former White House staff are fully aware of these obligations.

Ivanka, of course, is not just the former President’s daughter. She’s also someone legally obliged to share all the communications conducted while performing whatever role it is she played in the White House — up to and including begging her Daddy to call off a violent mob — with the National Archives.

Thompson would not have mentioned this if the committee had been able to obtain Ivanka’s side of many of these communications from the Archives (or at least seen them in documents Trump was attempting to claim privilege over). Thompson seems to know that Ivanka is not in compliance with the Presidential Records Act specifically as it pertains to her role on January 6.

Here’s the thing about conspiracies. Once you join them, you’re in them — you’re on the hook for what all other co-conspirators do, from acquiring weapons to bring to DC, to assaulting cops, to planning to overthrow the government — unless you make an affirmative effort to leave the conspiracy.

Ivanka might well point to that comment in her statement — The violence must stop immediately — as an effort to leave a conspiracy.

Except if she is covering up some of the things she knows by withholding records from the Archives, she’s going to have a hard time arguing that she didn’t remain in the conspiracy with all those people plotting violence by helping to cover it up.

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“HOLD. THE. LINE!!!” DOJ’s Late Research into Brandon Straka’s Grift

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It’s difficult to tell what really went down with the Brandon Straka plea.

That’s because — as laid out here — the government seems to have realized that Straka had been less than forthright in interviews, in which he was deemed cooperative last year, that got him a sweet plea deal. In their sentencing memo, the government seems to be at pains to argue that Straka’s cooperation was worth minimizing his overt incitement of the obstruction attempts.

Straka, meanwhile, is desperate to dismiss claims he “snitched” out others. So it’s unclear what to make of the claim — in a memo signed by Bilal Essayli, a California politician who only just filed his notice of appearance in the case — that the government was pressuring Straka to implicate Trump directly.

During the interviews the government was focused on establishing an organized conspiracy between defendant, President Donald J. Trump, and allies of the former president, to disrupt the Joint Session of Congress on January 6. Defendant answered all questions truthfully and denied the existence of any such plot. In August 2021, the FBI arrived at the same conclusion and found no evidence that violence was centrally coordinated by any individual or group.2 Despite these findings, the government persists with a false narrative that defendant’s actions were premeditated and orchestrated in concert with the greater mob that stormed the Capitol. The Court should reject this improper attempt to expand the scope of the appropriate sentencing factors, and consider only defendant’s relevant conduct with respect to the charged offense: misdemeanor disorderly conduct.

2 See Mark Hosenball, Exclusive: FBI finds scant evidence U.S. Capitol attack was coordinated – sources, Reuters, August 20, 2021, https://www.reuters.com/world/us/exclusive-fbi-finds-scant-evidence-us-capitol-attack-wascoordinated-sources-2021-08-20/

In an attempt to disclaim any organized conspiracy, Essayli cites the problematic Reuters article based on former officials who would have been in charge during the period when Straka’s initial interviews were deemed cooperative, but whose knowledge by August 2021 would have been out of date and whose claims would be utterly irrelevant to what DOJ understood by December, when Straka’s sentencing took a weird turn.

Even crazier, the Straka sentencing memo reveals that, on December 10 (so two days after Straka revealed new information that roiled the sentencing), his team shared a sentencing position with DOJ asking not just for no jail time, but to have the entire case dismissed.

Defendant feels compelled to respond on the record to the government’s sentencing memorandum, which was filed one week prior to the sentencing hearing. The government had the benefit of reading and considering defendant’s sentencing position, which was timely filed on December 10, 2021, when drafting its position. The government missed this deadline and informed defendant the following day that it was seeking to continue the sentencing hearing. The government sought a stipulation to continue, which defendant agreed to join, based on the government’s representation that it would consider a request from defendant to dismiss this case. The government informed defendant on January 13, 2022, that his request was denied and proceeded to file its sentencing position containing highly inflammatory characterizations of defendant. [my emphasis]

Since December, it seems Straka has given up that plan, because his attorneys now argue for “a modest non-custodial sentence.”

That said, much of the rest of the memo focuses on making a First Amendment argument claiming that Straka’s earlier posts (it is silent about his January 5 speech) don’t amount to incitement.

The first and second tweet sent in early December 2020 were a pair of strongly worded messages opposing the transition to President Biden without an audit of contested election results. Gov. Figure A and B. Defendant states, “If we don’t get a thorough audit we must not allow a transfer.” The references in the tweet to a “civil war” was not a call to violence, as the government suggests, it was a figure of speech referencing a political struggle. The government concedes that defendant’s “messages contain rhetorical flourishes that are common in political speech,” but then suggests, without evidence, that defendant’s statements could “have been interpreted by some readers as a call for more than just a figurative struggle.” ECF 36, p. 5. The government does not cite one example of defendant’s tweets influencing a single person to engage in criminal conduct.

Similarly, Gov. Figure C contains a tweet from December 19, 2020, with a call to “rise up” (figuratively) and be recognized by the government. The full statement reads, “Our government no longer listens & takes instructions from the People. They’ve decided to become dictators to the People. It’s time to rise up!” This is precisely the category of speech the First Amendment protects. It is not incitement, and barely registers above heated political rhetoric. See generally Cohen v. California, 403 U.S. 15, 24–26 (1971). It was also not imminent—being issued almost a month prior to January 6. See Brandenburg v. Ohio, 395 U.S. 444, 448 (1969) (First Amendment prohibits punishment of advocacy except when it incites imminent unlawful action).

The government’s sentencing memorandum is devoid of any mention of the First Amendment, let alone any analysis of whether defendant’s statements meet the Brandenburg standard required for punishing speech. The government may only punish protest-related speech that includes a direct “call to violence” or advocacy that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” See Brandenburg, 395 U.S. at 447; Noto v. U.S., 367 U.S. 290, 297–300 (1961). At the same time, the Supreme Court has consistently protected the statement of an idea that “may prompt its hearers to take unlawful action. . . .” Noto, 367 U.S. at 297 (quoting Dennis v. U.S., 341 U.S. 494, 545 (1951) (Frankfurter, J., concurring)). Indeed, even a protestor screaming, “We’ll take the f***ing street again” amidst an agitated crowd resisting police authority could not be punished for his speech. Hess v. Indiana, 414 U.S. 105, 107 (1973). The government fails to distinguish this important constitutional divide and, by so doing, seeks to penalize protected advocacy.

None of defendant’s statements meet the test for a “call to violence” as the government suggests. They lack any specific call to violence (hypothetically, “People, find a police officer and bash his head in!” or “Attack Senator John Doe now!”). They are not particular in that they do not ask protestors to take unambiguous actions or engage in detailed criminal acts. They are not imminent—the quoted material occurred a month before the January 6 event. And whatever the government believes defendant communicated to his supporters remains an inkblot in a constitutional Rorschach test. The speech that the government finds objectionable remains protected advocacy, and should not be considered for purposes of sentencing.

There are four attorneys who have filed notices of appearance for Straka. Not a single one has dealt with a prior January 6 defendant. So they may genuinely not know that DOJ has routinely turned to a defendant’s earlier speech to get not to incitement (militia defendants are an exception), but to motive.

And many of the other explanations Straka offers for his inflammatory language on January 6 don’t make sense (and has already been admitted at sentencing for dozens of other defendants). Straka’s team suggests that his incitement — as he was watching and cheering rioters strip a cop of a riot shield — couldn’t have encouraged the violence he was watching because his “social media posts were similarly written before defendant saw television footage of the west side of the Capitol,” as if there weren’t tons of things to alert him to the danger (even assuming he didn’t know of the collaboration between his associates and the organized militias) without seeing the West side.

Straka’s team seems to have gone from thinking they could get this entire case dismissed to being really worried about incitement that, through their good lawyering and possibly a lack of candor, hasn’t been charged against Straka.

Which brings me to a final detail of this exchange made visible by the timeline laid out in Straka’s filing.

As laid out below, after Straka’s presentence report came in, DOJ swapped prosecutors, April Russo for Brittany Reed (who wrote the sentencing memo). That presentence report, which is one of two things that changed DOJ’s response to sentencing, is referred to at least nine times in the government sentencing memo, though not at all in Straka’s.

The presentence report, for example, is what the government cites for Straka’s self-serving concern about how the prosecution affected his grifting.

During a presentence interview with U.S. Probation, the defendant expressed remorse for his actions. During his interview, the defendant stated that “if he could go back in time, he would never have gone to Washington D.C.” Straka described his conduct on January 6 as “one of the stupidest and tragic decisions of his life.” Straka lamented about how this incident has impacted his life and his business. He also informed U.S. Probation that he “feels the consequences for his actions have been quite extreme and disproportionate given his involvement in the offense is a misdemeanor.”

[snip]

Yet, it is worth pointing out that Straka believes that “the consequences for his actions this far have been quite extreme and disproportionate given his involvement.” Straka also believes that he is misunderstood. He has also expressed concern about how his business has been affected. ECF 28 ¶¶ 23-25. These statements indicate that Straka does not understand the gravamen of his conduct and that of the rioters on January 6.

The presentence report is also, alarmingly, the only place DOJ cites to explain Straka’s unique grift or that he flew to DC for the insurrection directly from doing similar incitement in Georgia.

It was in this context that Straka traveled to Washington D.C. on January 4, 2021, from where he had been working on the special election in Atlanta, Georgia to attend several “Stop the Steal” events where he would be a featured speaker. See ECF 28 at ¶ 17.

His role in the TCF mob in Michigan is not mentioned at all.

After that presentence report, the swapping of prosecutors, and the new information Straka provided on December 8, Straka’s team told DOJ they were going to ask to have the prosecution dismissed. That’s when the government told Straka they wanted a delay. Straka’s description of the timing of this is not entirely consistent with what shows in the docket (for example Judge Friedrich, with no public explanation, extended the deadline for the sentencing memo to December 15 on December 8, the day Straka provided new information), but there also seem to be several sealed entries. And while Straka claims DOJ told them they wanted a delay on December 11, the motion to continue describing the new information on December 8 and the presentence report is formally filed on December 17.

On December 8, 2021, the defendant provided counsel for the government with information that may impact the government’s sentencing recommendation. Additionally, the government is requesting additional time to investigate information provided in the Final PreSentence Report. Because the government’s sentencing recommendation may be impacted based on the newly discovered information, the government and defendant request a 30-day continuance of this case so that the information can be properly evaluated.

That makes what DOJ spent December 16 doing all the more interesting.

DOJ describes accessing the following materials on December 16, the day before they asked for a continuance:

The government cites the latter article — and not communications obtained directly by the FBI — to explain how Straka learned that his speech would be “delayed.”

At 2:33 pm on January 6, 2021, Michael Coudrey, the national coordinator for Stop the Steal, sent a message to a group chat telling those in the chat that the event that Straka was scheduled to speak at would be delayed because “They stormed the capital[sic].” Joshua Kaplan and Joaquin Sapien, New Details Suggest Sernior Trump Aides Knew Jan. 6 Rally Could Get Chaotic, ProPublica (June 25, 2021) available at https://www.propublica.org/article/new-details-suggest-senior-trump-aides-knew-jan-6-rally-could-get-chaotic (last visited December 16, 2021). Straka responded, “I just got gassed! Never felt so fucking alive in my life!!!” Id.

The government didn’t cite Straka’s November text messages (cited directly in the article) expressing disgust with close Ali Alexander ally Nick Fuentes.

Nor do they describe that Ali Alexander was on the group chat via which Straka learned his event would be delayed, or that shortly after Straka reveled in getting tear gassed, Alexander instructed everyone on the list to “get out of there” because “the FBI is coming hunting.”

“They stormed the capital,” wrote Stop the Steal national coordinator Michael Coudrey in a text message at 2:33 p.m. “Our event is on delay.”

“I’m at the Capitol and just joined the breach!!!” texted Straka, who months earlier had raised concerns about allying with white nationalists. “I just got gassed! Never felt so fucking alive in my life!!!”

Alexander and Coudrey advised the group to leave.

“Everyone get out of there,” Alexander wrote. “The FBI is coming hunting.”

Both the fact that Straka remained on organizing lists with Alexander months after he expressed distaste for Fuentes’ homophobia and that Alexander warned that the FBI were on their way change the import of everything else Straka did. Of particular note, it would dramatically change the connotation of Straka calling, from the safety of some distance from the crime scene, on others to “HOLD. THE. LINE!!!!”

And if DOJ really didn’t understand Straka’s grift until this point, that would suggest they made a plea deal without understanding that Straka was closely tied to those it is now investigating for coordinating with the militias who attacked the Capitol.

Brandon Straka claims he was asked, but denied, that there was, “an organized conspiracy between defendant, President Donald J. Trump, and allies of the former president, to disrupt the Joint Session of Congress on January 6.” But it appears that one thing leading to the month-long delay in his sentencing was newfound understanding both of Straka’s grift, but also of his close ties to those who coordinated with organized militias to end up precisely where Straka did: inciting violence from the top of the East steps of the Capitol.

Given that, his worries about whether his language counts as incitement seem misplaced. While he is legally in the clear for anything pertaining to January 6 (unless he lied to FBI), he should be more worried about inclusion in charges tied to the conspiracy he claims he denied.

Update: This language, from the Jan 6 Committee subpoena letter to Nick Fuentes, is of interest for the way it overlaps with Straka’s trajectory.

On November 14, 2020, you rallied with America First/Groyper followers at the Million MAGA March in Washington, D.C., urging your followers to “storm every state capitol until January 20, 2021, until President Trump is inaugurated for four more years.”5 You were also a prominent figure at “Stop the Steal” rallies in Atlanta, Georgia, on and around November 19, 2020,6 alongside featured speakers such as Alex Jones and Ali Alexander inside and outside the State Capitol, 7 where you discussed potential actions including showing up outside the homes of politicians. 8 On December 12, 2020, you spoke to a crowd of supporters at the “Stop the Steal” events in Washington, D.C., calling for the destruction of the Republican Party for failing to overturn the election.9

Timeline

January 11, 2021: Tip on Straka’s post to Twitter

January 13, 2021: Interview with Straka relative

By January 13, 2021: Straka removes January 5 video from Twitter; last view date for December 19, 2020 video cited in sentencing memo but not arrest affidavit

January 20, 2021: Straka charged by complaint

January 25, 2021: Straka arrest

February 17, 2021: First FBI interview

February 18, 2021: First continuance

March 25, 2021: Second FBI interview

June 3, 2021: Second continuance

July 2, 2021: Protective order

August 25, 2021: Third continuance

August 31, 2021: Date of plea offer

September 14, 2021: Deadline to accept plea

September 15, 2021: Straka charged by information

September 30, 2021: Stuart Dornan files notice of appearance for Straka

October 5, 2021: Updated information

October 6, 2021: Change of plea hearing (plea agreement; statement of offense); sentencing scheduled for December 17, with initial memo due December 10 and response due by December 15

Between October 7 and November 19, 2021: Pretrial services interview (sealed docket #28)

November 19, 2021: Brittany Reed substitutes for April Russo

December 8, 2021: Sentencing reset for December 22; sentencing memo due by December 15; Straka “provide[s] counsel for the government with information that may impact the government’s sentencing recommendation”

December 10, 2021: Straka shares sentencing position (possibly filed under seal)

December 11, 2021: Government tells defendants it seeks to continue, tells Straka it will consider request to dismiss case

December 16, 2021: Last view date for 2018 Straka video, Walkaway Foundation website, WalkAway Campaign PAC website, WalkAway Campaign YouTube Channel; ProPublica article on Michael Courdrey message (and attempts to distance Alex Jones and Ali Alexander)

December 17, 2021: Motion to continue (presented as joint) 30 days

By December 23, 2021: Sealed motion attempting to seal publicly filed motion to continue, denied by Judge Friedrich

January 5, 2022: Third FBI interview, this time including prosecutors (plural)

January 13, 2022: Government sentencing memo (sealed addendum at docket #37); government denies Straka request to dismiss case

January 14, 2022: Bilal Essayli files notice of appearance for Straka

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The Disappearing Willard Hotel and the Accused Seditionists’ Other Interlocutors

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Just as sedition bears down on Roger Stone, the government has put a curtain over what they know about his role in it. The government has moved on from Stone, it seems, to other interesting Oath Keeper interlocutors.

Way back in May, I noted how judicious DOJ was being with statements from Stewart Rhodes — referred to officially as Person One back in his halcyon pre-sedition charge days — in the charging documents for Oath Keepers. Within a few days that month, DOJ added to its insurrection narrative a December 14, 2020 Rhodes post calling for Trump to invoke the Insurrection Act via James Breheny’s charging documents. The iteration of the Oath Keeper conspiracy released at the same time (the fourth) introduced Rhodes’ November 9 GoToMeeting discussion of the Insurrection Act that continues to appear in the indictments.

For eight months, in other words, DOJ has been engaged in a slow-reveal of its case against Rhodes.

Now, in the sedition indictment bearing Rhodes’ name, we get a whole lot more of what Rhodes was saying:

  • Calls for civil war as soon as a it became clear Biden should win
  • Rhodes’ adoption of a Serbian (!!!) model for his civil war
  • An oblique comment — dated to “around this time” of the Inauguration — about Rhodes messaging others to organize local militias to oppose Biden’s Administration

Most of the new comments aren’t as scintillating as the catalog describing the personal arsenal Rhodes was purchasing, though, and a few of the new Rhodes comments included were public before.

There are three comments about Rhodes’ communications, though, that I find intriguing because they seem to hint at other interlocutors with the accused seditionists that we may not know about yet.

The first doesn’t even involve Rhodes directly. Rather, it relays Roberto Minuta describing to someone else that 1) Minuta had spoken directly with Rhodes the night of December 18 and 2) Minuta was sharing with someone apparently outside the Oath Keepers how Rhodes felt.

28. Also on December 19, 2020, MINUTA messaged another individual, “Oath Keepers president is pretty disheartened. He feels like it’s go time, the time for peaceful protest is over in his eyes. I was talking to him last night.”

This wasn’t in the prior indictment and I don’t recall it appearing in any other filings in the case (Minuta was not detained, so there’s less about him in the public record). Unless this was originally on the Facebook account Minuta allegedly deleted, there doesn’t seem to be any reason DOJ wouldn’t have obtained this message when they exploited Minuta’s phone. If they’ve had it for months, then the simplest explanation for its inclusion is that this indictment is all about Rhodes, and the comment captures Rhodes’ commitment to violence. In addition, this comment exhibits a closeness between Minuta and Rhodes (which we’ve seen in earlier charging documents) that may be useful from an evidentiary standpoint.

But I suspect it serves an additional purpose. Minuta wrote it not long after the December MAGA March in DC. While there, he had been hanging out with Proud Boys, including Dominic Pezzola (who like Minuta is from upstate New York). It comes after Mike Flynn’s call for insurrection. After Trump tweeted out a promise for Wild Protests on December 19, a ton of aspiring insurrectionists, both organized and not, started making plans to come to DC. In short, this was a key time in the lead-up to the operation, and Minuta was surprisingly well-connected (for a tattoo artist!!!) within the movement. So I suspect his interlocutor here is of some interest (and it’s even possible the government obtained the text from that interlocutor, not Minuta).

An exchange that Kelly Meggs had with Rhodes on Christmas 2020 is similar.

34. On December 25, 2020, MEGGS messaged the OKFL Hangout Chat, in reference to the Joint Session, “We need to make those senators very uncomfortable with all of us being a few hundred feet away.” RHODES then wrote, “I think Congress will screw him [President Trump] over. The only chance we/he has is if we scare the shit out of them and convince them it will be torches and pitchforks time is they don’t do the right thing. But I don’t think they will listen.”

As we recently saw in Proud Boy Matthew Greene’s statement of offense, using proximity to pressure members of Congress (and Pence), became well formulated enough that even a low-level Proud Boy would understand it by the day of the insurrection. Here, both Meggs (who is the Florida-based Oath Keeper who boasted of forging an alliance with the Proud Boys) and Rhodes enunciate this goal, but do so twelve days before the actual attack. As with the Minuta comment, my guess is that the his exchange reflects communication with (at a minimum) the Proud Boys about this shared goal of — in Rhodes’ formulation — terrorizing Congress. It certainly makes it clear that the intent of mobbing the Capitol was formulated well in advance of the event.

There’s one more example. For some reason, DOJ provides the exact time (without time zone) that Rhodes wrote, “There is no standard political or legal way out of this” on December 31, 2020.

40. RHODES and his co-conspirators used the Leadership Intel Chat and other Signal group chats to plan for January 6, 2021. On December 31, 2020, at approximately 10:08 p.m., RHODES wrote to the Leadership Intel Chat, “There is no standard political or legal way out of this.”

For the purposes of the indictment, this shows mens rea that the Yale Law grad leading this insurrection recognized what they were going to do next was not legal. But it also seems to reflect a response (thus the timing) to something — one I haven’t been able to guess yet. The comment comes before Texas Congressman Louie Gohmert’s lawsuit against Mike Pence, the last of a long series of ridiculous “legal” efforts, failed spectacularly. But it comes at around the same time that even Sean Hannity was beginning to give up.

For example, on December 31, 2020, you texted Mr. Meadows the following:

“We can’t lose the entire WH counsels office. I do NOT see January 6 happening the way he is being told. After the 6 th. [sic] He should announce will lead the nationwide effort to reform voting integrity. Go to Fl and watch Joe mess up daily. Stay engaged. When he speaks people will listen.”

I’m not saying that Rhodes was in contact with Hannity: But something seems to have happened just before 10:08 PM (in whatever time zone) that elicited this response which is not dissimilar from where Hannity’s brain was at the time. And if it was non-public (as Hannity’s panic was), then it suggests Rhodes may have been responding to a well-connected interlocutor.

So it’s not so much that the sedition indictment quotes Rhodes as saying really interesting things. Rather, it seems to suggest he and others were saying things to some interesting interlocutors.

Even as the government is hinting at other interesting interlocutors of the accused seditionists, as I noted above, DOJ has entirely hidden the prior back-and-forth between the Oath Keepers and the Willard Hotel. This back-and-forth involving people who were guarding Roger Stone at the Willard that morning first started to show in the Third Superseding Indictment. Once Jonathan Walden — the guy now charged by himself — got added, the indictments included this exchange:

At 9:36 a.m., WALDEN texted JAMES, “Willard hotel?” At 9:51 a.m., WALDEN placed a phone call to JAMES, which is recorded as missed. At 9:52 a.m., WALDEN texted JAMES, “I’m here, awaiting instruction.” At 10:37 a.m., JAMES placed a phone call to WALDEN, which lasted 2 seconds.

Then last month, Kenneth Harrelson released Mike Simmons’ [Person Ten] 302s (purportedly in a desperate bid to adopt his lies, but possibly also to let others know what FBI had been investigation in May).

They revealed that Joshua James, who was in charge of the security detail at the Willard, called in several times to Simmons and seems to have cited Stone’s gripe about being treated poorly to Simmons.

This is what I was referring to in this post about the effect of disappearing Mark Grods, the one overt cooperator who was at the Willard that morning, from all last week’s indictments. Several decisions made in the structure of these most recent indictments — spinning Walden off by himself, disappearing Grods, focusing on the activities of two stacks in the sedition indictment (and thereby starting the narrative at a later point in time), remaining coy about the present status of Simmons, and eliminating James and Minuta in the Crowl indictment — had the effect of eliminating the coordination with the Willard from the sedition indictment altogether.

Poof! Where’s Roger?

Trust me. I don’t think DOJ has decided that the Oath Keepers’ presence at the Willard was unimportant. On the contrary. I think they’ve just decided to move onto making other people sweat about their communications with now-charged seditionists appearing in the indictment, while hiding how much more they’ve learned about the Willard in recent weeks.

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January 6 Deconfliction: “This Is Part of a Much Bigger Conspiracy”

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In a Detroit Free Press article on the forged electoral certificate presented from Michigan, the state’s awesome Attorney General Dana Nessel explained why, after investigating for almost a year, she is now referring the matter to the Grand Rapids US Attorney’s Office.

Nessel told Maddow that her office has been evaluating charges for almost a year but decided Thursday to refer the matter to the U.S. Attorney’s Office for the Western District of Michigan.

“We think this is a matter that is best investigated and potentially prosecuted by the feds,” Nessel said.

The signatories of the failed attempt to award Michigan’s Electoral College votes to Trump include Michigan GOP co-chair Meshawn Maddock, national Republican committeewoman Kathy Berden and Michigan GOP grassroots vice chair Marian Sheridan, among other pro-Trump activists in the party.

The decision does not preclude possible charges against the Republicans who falsely claimed that they cast Michigan’s Electoral College votes for Trump, Nessel said. And her office might still bring charges, she added.

“Under state law, I think clearly you have forgery of a public record, which is a 14-year offense and election law forgery, which is a five-year offense,” Nessel said.

“But, obviously, this is part of a much bigger conspiracy and our hope is that the federal authorities and the Department of Justice and United States Attorney General Merrick Garland will take this in coordination with all the other information they’ve received and make an evaluation as to what charges these individuals might (face),” she said.

Consider what happened to lead to this federal criminal referral. After electors sent fake certifications to the National Archives, NARA then sent them to Michigan Secretary of State Jocelyn Benson and Arizona Secretary of State Katie Hobbs.

Vice President Mike Pence the winners of both Michigan and Arizona and their electors after the 2020 election. Public records requests show the secretaries of state for those states sent those certificates to the Jan. 6 panel, along with correspondence between the National Archives and state officials about the documents.

Spokespeople for the Michigan and Arizona secretaries of state declined to comment on the documents. The offices confirmed that Michigan Secretary of State Jocelyn Benson and Arizona Secretary of State Katie Hobbs, both Democrats, and their staff met with the panel in November.

“They mostly discussed election administration in Arizona, the 2020 elections, threats/harassment directed toward the office, and the Cyber Ninja’s partisan ballot review,” said Hobbs’ spokesperson C. Murphy Hebert.

Benson and her staff took questions from the committee on the 2020 election and events leading up to the Jan. 6 riot, according to Tracy Wimmer, a spokesperson for Benson.

The National Archives sent emails to the Arizona secretary of state on Dec. 11, 2020, passing along the forged certificates “for your awareness” and informing the state officials the Archives would not accept them.

Arizona then took legal action against at least one of the groups who sent in the fake documents, sending a cease and desist letter to a pro-Trump “sovereign citizen” group telling them to stop using the state seal and referring the matter to the state attorney general.

“By affixing the state seal to documents containing false and misleading information about the results of Arizona’s November 3, 2020 General Election, you undermine the confidence in our democratic institutions,” Hobbs wrote to one of the pro-Trump groups.

Arizona took immediate action; given Nessel’s comments, Benson appears to have referred the matter to Nessel. Some of these details were made public last March after American Oversight obtained them. But after the January 6 Committee put them all in context and focused renewed attention to how the fake certificates fit into a larger effort, it led Nessel to hold off on pursuing potential 14-year charges against some of the most powerful Republicans in the state, and instead to formally refer the investigation to the Feds, based on the logic that the obviously coordinated effort to forge fake electoral certificates is part of a larger whole.

This is not dissimilar from how legal action from Florida’s charity regulator led to state action as well as a grand jury investigation into Sidney Powell’s grifting.

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

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

Defending the Republic’s finances have already prompted an investigation and a settlement with Florida’s charity regulator. The group paid a $10,000 fine in September as part of a settlement agreement related to its solicitation of contributions and failure to register as a charitable organization in the state.

[snip]

Defending the Republic’s finances first attracted the scrutiny of regulators in Florida shortly after Powell founded the group in November 2020 when authorities received a complaint and subsequently issued a subpoena to internet hosting service GoDaddy for information about the group’s website.

In a June press conference, Florida Agriculture Commissioner Nikki Fried said Defending the Republic was “found to be soliciting contributions from the State of Florida or from persons within the State of Florida” on the internet “without having filed in the State of Florida” as a charitable organization.”

On Aug. 24, Defending the Republic paid a $10,000 fine as part of a settlement agreement with Florida authorities over its fundraising.

As part of that agreement, Powell’s group agreed to register as a charity in Florida and submitted a projected budget of over $7 million. The settlement agreement also required Defending the Republic to submit an audited financial statement for the group’s operations between December 2020 and July 2021 by Nov. 30, including a balance sheet and a list of expenses and revenue.

Meanwhile, Fulton County’s DA, Fani Willis, has been investigating Trump’s call to pressure Brad Raffensperger to cheat and will reportedly make a prosecutorial decision in the months ahead.

The prosecutor weighing whether Donald Trump and others committed crimes by trying to pressure Georgia officials to overturn Joe Biden’s presidential election victory said a decision on whether to bring charges could come as early as the first half of this year.

Fulton County District Attorney Fani Willis said in an interview with The Associated Press last week that her team is making solid progress, and she’s leaning toward asking for a special grand jury with subpoena power to aid the investigation.

“I believe in 2022 a decision will be made in that case,” Willis said. “I certainly think that in the first half of the year that decisions will be made.”

[snip]

Willis declined to speak about the specifics, but she confirmed that the investigation’s scope includes — but is not limited to — a Jan. 2, 2021, phone call between Trump and Georgia Secretary of State Brad Raffensperger, a November 2020 phone call between U.S. Sen. Lindsey Graham and Raffensperger, the abrupt resignation of the U.S. attorney in Atlanta on Jan. 4, 2021, and comments made during December 2020 Georgia legislative committee hearings on the election.

Regardless of what Willis decides, she can also refer actions to the Feds because it, like the forged electoral certifications, “is part of a much bigger conspiracy.”

The point is (besides that we should be grateful that Democrats elected a lot of smart, fearless women in recent years) that there are lots of moving parts to this “much bigger conspiracy.” And all those moving parts have, as an option, referring their investigative findings to DOJ to drop it into the “much bigger conspiracy.”

So during the year when DOJ has been laying what Merrick Garland called “the evidentiary foundation for more complex cases,” states and local authorities have been conducting investigations that can be joined to that evidentiary foundation.

These are all parts of a much bigger conspiracy.

All these moving parts require coordination, however, or “deconfliction,” both in an effort to maximize cross-fertilization between the investigations and to ensure no investigation screws up the criminal investigations that might lead to real consequences. While there has been no reporting on how this is being done at DOJ, we can be sure it is, not least because DOJ and the Committee are muddling through the Executive Privilege questions in tandem.

Robert Mueller, for example, had his own congressional liaison, and referrals from the Senate Intelligence Committee led directly to plea deals with Sam Patten and Michael Cohen that, in turn, led to information both (and in the latter case, Trump’s lawyers) had shielded from the Committees.

Adam Schiff, now a member on the Select Committee, knows well that Mueller also used a House Intelligence Committee interview with Roger Stone as a basis for an obstruction prosecution against Trump’s rat-fucker. While the details are less clear, I also suspect that Steve Bannon’s interviews with HPSCI served to tee up the fruitful grand jury appearance for him in January 2019 about which Stone is still furious.

Liz Cheney brings a different knowledge base to the challenge of deconfliction. Her dad played a central role in screwing up the Special Prosecutor investigation into Iran-Contra by offering key witnesses immunity. He’s one reason why congressional committees hoping to preserve criminal investigations tread carefully. Hopefully, Congresswoman Cheney can apply lessons learned from her evil genius father to the forces of good on the Select Committee. She has the most to lose if this Committee doesn’t succeed.

As noted above, the most visible sign of this deconfliction has come on privilege reviews. In July, at the same time that DOJ established their contact policy fire-walling President Biden from learning about any ongoing investigations, DOJ got privilege waivers for former DOJ personnel to appear before Congress. After that, when the Select Committee, as an independent branch of government that is also fire-walled from the criminal investigation, asked for investigative materials from the Archives, Biden conducted privilege reviews of that material and waived privilege over much, but not all, of it. If and when that material is released, however, it would be available to anyone with a need, including DOJ.

In fact, the back and forth between the Committee and DOJ has likely already made investigative materials available to DOJ. That’s because, after the Select Committee made it clear Mark Meadows had violated the Presidential Records Act with regards to some of the materials he shared with the committee, Meadows undertook efforts to fix that. To the extent he is able to provide his personal emails and Signal texts to NARA (some of the latter are likely are unavailable), that material would become available to DOJ without subpoenaing Meadows. And to the extent this process reveals that materials of investigative interest to a grand jury were deleted when Meadows obtained a new phone, it will give DOJ reason to use legal process to either hold Meadows accountable for obstruction, or reason to get it from others, like Jim Jordan. To say nothing of the fact that Meadows can’t prevent DOJ from subpoenaing the call records that led him to renege on efforts to cooperate with the January 6 Committee. That’s why I doubt DOJ will hold Meadows in criminal contempt, because they would be better served to get that information — and coerce cooperation, if he chooses that route — via their own legal process. Effectively, then, Bennie Thompson wrote a rough draft of a warrant affidavit for the FBI.

It’s in the subpoenas for witnesses, however, that I’m most curious about with regards to deconfliction between the DOJ and Select Committee investigation. Consider: There are two Trump associates who were key in sowing the Big Lie, Rudy Giuliani and Sidney Powell, who are known to be under criminal investigation right now. That’s a topic the Select Committee is focusing closely on. But in spite of the fact that Bennie Thompson has expressed an interest in interviewing Rudy, thus far Thompson remains coy about how he’ll reach out to get Rudy’s testimony. There has been no public mention of getting Powell’s testimony or, for that matter, Lin Wood or Patrick Byrne, who — based on public reports — are part of that grifting investigation as well (and Byrne would be interesting of his own accord because he was honey-potted by a Russian spy). And for that matter, at least by the time he sued the committee, Mike Flynn’s call records hadn’t been subpoenaed either.

I’m equally interested in the timing of the Stewart Rhodes subpoena: November 23. That was after DOJ obtained an arrest warrant for James Beeks, the last member of The Stack, on November 18, but the day before they arrested him. By that point (probably long before), DOJ had to have known they were going to pursue sedition charges against him. But for some reason, they held off on the sedition charges when they superseded the Oath Keepers indictment on December 1 (before they otherwise would have needed to charge Beeks) to include him and tweak the Civil Disorder language in the indictment. There may be very good reasons they needed to wait: They needed to find Rhodes; they needed to finish exploiting his phone; they needed to resolve how they were going to treat the field commander, Mike Simmons, whose status in the investigation changed pretty dramatically between the December indictment and the Sedition one. But in that period while they held off, the Select Committee tested whether Rhodes wanted to go lie under oath to Congress. He declined.

It was worth a shot!

I find it equally curious that the Select Committee chose to target colleagues who played a more ambivalent role in the insurrection on January 6, rather than people like Paul Gosar or Mo Brooks, who have clear ties to organizers and other insurrectionists.

Similarly, I share Justin Hendrix’s curiosity why — especially in the wake of his article showing that The Donald isn’t being used in FBI affidavits — the Select Committee isn’t pursuing the role of the post-Reddit social media site in the insurrection, even while they expand their prior requests on more traditional social media.

In short, DOJ and the Select Committee are necessarily deconflicting their efforts, even if the Committee remains fire-walled from what DOJ has planned in the weeks ahead. But understanding that raises interesting questions about the Select Committee choices.

These pieces are all parts of a much bigger conspiracy. And until we see all those pieces we won’t see how they all work together.

But there are increasing signs that others are putting those pieces together.

Update: On January 18, the committee subpoenaed Rudy, Sidney Powell, and two others.

Update: On January 28, J6 subpoenaed the fake electors.

Select Committee Witness Requests

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One Man’s Flourish Is Another Man’s Seditious Conspiracy: DOJ’s Typo and the Brandon Straka Plea Deal

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The government released their sentencing memo for Brandon Straka yesterday. It confirms that the propagandist got a ridiculously light plea deal because he “cooperated” with the government. But, particularly because of what must be a typo in the government filing, it raises more questions about the fairness of the prosecution for the first purveyor of the Big Lie to be sentenced in January 6 than it provides answers.

As I’ve laid out repeatedly, Straka was a speaker on January 5 and was slated to speak again on January 6 at one of the rallies that provided the excuse to bring more bodies to the Capitol. He also played a central role in riling up a mob at Michigan’s vote count at TCF Center in November 2020. In other words, he was instrumental in the effort to sow violence by leading people to believe false claims about the election.

As described in the sentencing memo, that’s precisely what Straka did at the East side of the Capitol, too.

Straka pleaded guilty to one count of 40 U.S.C. § 5104(e)(2)(D), Disorderly Conduct in the Capitol Grounds. As explained herein, a four-month home detention sentence is appropriate in this case because: (1) the defendant has a significant public profile, which he utilized to promote his activity on January 6, (2) the defendant learned of the breach of the U.S. Capitol Building and went to join the rioters; (3) upon arriving at the U.S. Capitol, the defendant encouraged others to  storm the U.S. Capitol; (4) the defendant recorded video of the rioters entering the U.S. Capitol; (5) the defendant encouraged rioters to take an officer’s protective shield from the officer’s possession, and (6) the defendant took to social media and encouraged rioters who remained at the U.S. Capitol to “hold the line” even after he had left Capitol grounds on January 6.

[snip]

Here, Straka’s participation in a riot that actually succeeded in halting the Congressional certification combined with his celebration and endorsement of the unauthorized entry of the U.S. Capitol and violent conduct of the rioters to his hundreds of thousands of followers, his act of encouraging rioters to take a U.S. Capitol Police officer’s shield, and the need for deterrence renders a four-month home detention sentence both necessary and appropriate in this case.

Straka was originally charged with civil disorder and trespassing, but not the obstruction of the vote count that he was clearly part of. In October, he got a plea deal to plead only to the lesser of the two trespassing statutes, eliminating a felony civil disorder charge. As I previously noted, his plea agreement included the standard cooperation paragraph that usually suggests someone has not yet cooperated.

But DOJ, in their sentencing memo, claims he did, and even included a sealed filing describing the substance of the cooperation, as they would in support of a 5.1K letter that more formalized cooperators get.

7 The government will supplement this filing with a sealed addendum that will provide this Court with information related to Brandon Straka’s interviews.

But even the memo’s description of Straka’s initial “cooperative” interviews, the ones he did before getting that sweet plea deal, make it clear that, at least at the beginning, he was bullshitting them.

Straka was arrested on January 25, 2021. Straka voluntarily agreed to be interviewed by FBI. Straka’s initial interview occurred on February 17, 2021. Straka recounted what occurred on January 6. Straka denied seeing any police officers as he walked to the U.S. Capitol. He also denied seeing any barriers or signage indicating that the U.S. Capitol was closed. Straka denied removing the posts out of fear of getting arrested. Instead, he explained that he removed the videos because he felt “ashamed.” He denied knowing that people were “attacking, hurting, and killing people.”

Straka described seeing people “clustered” and “packed in” near the entrance to the U.S. Capitol. He admitted to video recording the event and later posting and removing the videos from Twitter. He also admitted knowing that the rioters were entering the U.S. Capitol without authorization and with the intent to interfere with Congress. Straka provided additional information to the FBI regarding the events leading up to and during January 6. After this initial interview, the FBI met with Straka a second time on March 25, 2021 with follow-up questions. Straka was cooperative during the interviews.

Indeed, later parts of the memorandum debunk claims Straka made in that interview, completely undermining the description of these as cooperative interviews.

Straka stood at the entrance of the East Rotunda Doors as rioters attempted to enter despite the presence of officers near the door. Alarms from inside the U.S. Capitol can be heard in the background as Straka approaches the doorway’s entrance: a loud, high-pitched, continuous beeping, similar to a smoke alarm. If Straka was unaware that his and the rioters’ presence was not authorized, he should have known it when he heard the sound of the alarms. Additionally, as Straka approached the doorway, he was met by the smell of tear gas that had been deployed by officers inside of the U.S. Capitol.

The memorandum also clearly shows that any remorse Straka has expressed was self-serving.

Straka has indicated that his decision to attend the U.S. Capitol breach was “stupid and a tragic decision.” In his interview with FBI, Straka stated that he did not know that violence and death would occur that day. He then expressed shame for participating in the event. Yet, it is worth pointing out that Straka believes that “the consequences for his actions this far have been quite extreme and disproportionate given his involvement.” Straka also believes that he is misunderstood. He has also expressed concern about how his business has been affected. ECF 28 ¶¶ 23-25. These statements indicate that Straka does not understand the gravamen of his conduct and that of the rioters on January 6.

And the memorandum obscures the chronology of Straka’s actions from the day and relies on his word for at least one key detail which the FBI could have (and did, for other insurrectionists) confirmed via more investigation. Straka went to Trump’s speech at the Ellipse. Videos show that he left the speech with Mike Flynn just as the speech was ending, walking unimpeded through the VIP section. Straka claims he took the Metro to the Capitol and arrived between 2 and 2:20, which given that everybody else was walking, is likely only possible if he killed a half hour somewhere before hopping the Metro, presumably getting on at Metro Center or Federal Triangle and getting off at Capitol South. That detail is critical, because it’s how Straka sustains a claim that:

  • He only learned of the assault on the Capitol as he was already traveling over there and not before
  • He arrived at the Capitol between the time he learned of the assault and when his speech was canceled (2:00 to 2:20)
  • He learned his speech was canceled at 2:33

Here’s how it looks in the sentencing memorandum, separated by several pages.

The next day, January 6, 2021, Straka attended the “Rally to Save America” on the White House Ellipse and then planned to travel to an area near the U.S. Capitol Building where he was going to give another speech. See ECF 1, p. 2 at ¶ 3 Straka used the Metro to travel to the U.S. Capitol. Id. While traveling to the U.S. Capitol, he received alerts on his telephone stating that former Vice President Mike Pence was “not going to object to certifying Joe Biden.” Id. Straka continued to make his way to the U.S. Capitol. Id. While walking, Straka learned that the U.S. Capitol had been breached. Id. Straka estimated that he got off of the Metro sometime between 2:00 p.m. and 2:20 p.m. before making his way to the U.S. Capitol grounds. See ECF 28, at ¶ 18.

[snip]

At 2:33 pm on January 6, 2021, Michael Coudrey, the national coordinator for Stop the Steal, sent a message to a group chat telling those in the chat that the event that Straka was scheduled to speak at would be delayed because “They stormed the capital[sic].” Joshua Kaplan and Joaquin Sapien, New Details Suggest Sernior Trump Aides Knew Jan. 6 Rally Could Get Chaotic, ProPublica (June 25, 2021) available at https://www.propublica.org/article
/new-detailssuggest-senior-trump-aides-knew-jan-6-rally-could-get-chaotic (last visited December 16, 2021). Straka responded, “I just got gassed! Never felt so fucking alive in my life!!!” Id. Later, as law enforcement was still working to clear rioters from Capitol grounds, Straka encouraged them to continue fighting:

It’s still totally inexplicable. Even if Straka didn’t have knowledge he was traveling into an active riot in advance (a really sketchy claim), he still marched right up the steps of the East side of the Capitol encouraging violent entry, and then stuck around for hours encouraging rioters to keep going. DOJ could have checked the timing of his story by — as they did with other Jan 6 defendants — checking for Metro card purchases, swipes, or surveillance video in the Metro. Instead, they seem to have taken his word for the chronology.

Thus far, then, it looks like Straka successfully bullshitted DOJ for a sweet plea deal.

That treatment is all the more problematic given the discomfort regarding Straka’s incitement in different places in the sentencing memo. In describing his January 5 speech at the Stop the Steal rally, DOJ dismissed his call to “revolution” as “flourishes.”

During his five-minute long speech, Straka again used common rhetorical flourishes, referring to the rally attendees as “patriots,” and referenced a “revolution” multiple times. Id. at 32:27-37:18 Straka directed the attendees to “fight back.” Id.

But in the sentencing memo, DOJ called the same kind of speech on social media before that, often on key days in the developing conspiracy, speech that “could reasonably have been interpreted by some readers as a call for more than just a figurative struggle.”

Following the election, Straka stoked the passions of his followers, frequently telling the “Patriots” that it was time to “rise up” as part of a “civil war.” Many of these messages contain rhetorical flourishes that are common in political speech. However, some of Straka’s references to concrete planning and action could reasonably have been interpreted by some readers as a call for more than just a figurative struggle. In early December 2020, Straka sent out messages informing them that they “could not allow” a presidential transition and encouraging his followers to prepare for a civil war

That is, DOJ admits in its sentencing memo that Straka was stoking violence during the entire transition period.

Thus it happened that, on the very same day DOJ rolled out a seditious conspiracy indictment against Stewart Rhodes for, in part, warning on November 5, “we aren’t getting through this without a civil war,” and then warning on December 11 that if Joe Biden were to assume the Presidency, “it will be a bloody and desperate fight,” DOJ made a case that a guy who, in the same weeks, was also calling for civil war, should get just home confinement.

To be sure, there’s no evidence Straka engaged in military training or purchased weapons. But if Stewie’s incitement counts as sedition, then surely Straka’s counts as obstruction of the peaceful transfer of power.

Which brings us back to DOJ’s claims about Straka’s cooperation and that sealed addendum. According to the memo, as written, Straka had three interviews: one on February 17, 2021, another on March 25, 2021, and a third on — it claims — January 5, 2022.

On January 5, 2022, Straka met with prosecutors from the United States Attorney’s Office and the FBI a third time. The purpose of the interview was for the government to ask Straka follo-up [sic] questions. Consistent with his previous interviews, Straka was cooperative. The interviews were conducted in anticipation of the plea agreement that defendant would later enter.7

Except that makes no sense. He signed his statement of offense on September 14, 2021 and pled guilty in October. A January 5, 2022 interview couldn’t have “anticipat[ed] the plea agreement” he entered three months earlier. [Update: I’ve gotten clarification that the reference “the interviews” was meant to refer to the series of interviews. It still doesn’t make sense, but may reflect a late-date addition without correction of the antecedent.]

Moreover, DOJ offers no public explanation for details in this motion for a continuance, which the government attempted to seal after the fact, an attempt Judge Dabney Friedrich refused. It reveals that Straka told the government something new in December, and also that something unexpected came up in the Presentence report.

On December 8, 2021, the defendant provided counsel for the government with information that may impact the government’s sentencing recommendation. Additionally, the government is requesting additional time to investigate information provided in the Final PreSentence Report. Because the government’s sentencing recommendation may be impacted based on the newly discovered information, the government and defendant request a 30-day continuance of this case so that the information can be properly evaluated.

Given the timing of that continuance, it might explain a third meeting with Straka on January 5 — nine days ago. But that would suggest that the information wasn’t provided before Straka got this sweet plea deal.

There are any of a number of things going on. Perhaps it’s true that Straka provided useful information early in the investigation and in consideration for that got a sweet plea deal, as happened with Jacob Riles. Perhaps it’s true that Straka was more honest in those early interviews than portrayed in this memorandum.

Or, as seems more likely given the record and the rhetorical contortions AUSA Brittany Reed made in this sentencing memo, FBI let Straka bullshit them and based on that, he scored a ridiculous plea deal, and only after that, his presentence report disclosed things that FBI should have found last spring.

It may be that the belated discovery in December, in the end, makes the plea deal worth it. If Straka is willing to share honest details of how months of incitement led up to that attempted breach on the East steps; if Straka has provided details of what Mike Flynn was up to after Trump’s speech; if Straka belatedly confessed that there was a concerted plan to converge on the top of the East steps, then Straka’s preferential treatment may be worth it.

But DOJ really needs to provide more transparency on what went down, one that doesn’t include an obvious typo obscuring the timeline. If Paul Hodgkins has to serve eight months for obstruction because he wandered onto the Senate of floor and Jenny Cudd only got to plead from obstruction down to the more serious trespassing charge because she repeated the calls for civil war that people like Straka were making on January 5, then equity demands a far better explanation for Straka’s preferential treatment here.

As noted, Straka’s is the first sentencing for one of the organizer-inciters who will need to be held to account if DOJ wants to really pursue the people who master-minded this insurrection. If FBI screwed up (or tried to protect Straka), then DOJ needs to come clean on that and make it clear how they’ll avoid such problems in the future.

Presenting two inexplicable timelines is not the way to do that.

Update: Fixed reference to presentence report. And included clarification regarding “typo.”

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