Buried in DOJ’s Absolute Immunity Response, a Comment on Trump’s Suspected Zenith Crimes

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Earlier this month, Trump’s DC team filed a motion to dismiss his January 6 indictment based on a claim of absolute immunity, an argument that Presidents cannot be prosecuted for things they did while President.

To get a sense of how shoddy Trump’s argument was, you need only compare the number of citations to these cases:

  • Nixon v. Fitzgerald, which found Presidents had absolute immunity against civil lawsuits for things that fall within their official duties
  • US v. Nixon, which found that the same President who had absolute immunity from civil suit could not use Executive Privilege to withhold evidence from a criminal prosecution
  • Trump v. Vance, which held that Trump, while still President, was not immune from a criminal subpoena
  • Thompson v. Trump, in which SCOTUS upheld a DC Circuit Opinion that upheld a Tanya Chutkan opinion that the events of January 6 overcame any Executive Privilege claim Trump might make to withhold documents from Congress, a far higher bar than withholding them from the FBI

Trump’s absolute immunity claim was a shoddy argument, but you never know what this SCOTUS would rubber stamp, even considering its cert denial in Thompson v. Trump and questions about whether Clarence Thomas (who did not recuse in that case, but did in John Eastman’s appeal of a crime-fraud ruling against him) would be shamed into recusing in this one.

Shoddy argument and all, there was never going to be a way to carry out the first-ever prosecution of a former President without defeating an absolute immunity claim.

In general, DOJ’s response is much more adequate than Trump’s motion to the task of laying out one side of an argument that will ultimately be decided by a very partisan Supreme Court. But it is written as the first response in what will be, whatever the outcome, a historic ruling.

Before it spends ten pages addressing Trump’s application of Nixon v. Fitzgerald, it spends ten pages laying out the constitutional framework in question. In a section addressing Trump’s claim that his impeachment acquittal on January 6 charges meant he could not be charged for related crimes, DOJ notes that Trump argued at the time, that as a former President, the Senate no longer had jurisdiction to hold an impeachment trial. Then it cites the many Republican Senators who used that stance to justify their own acquittal votes. It notes that the Nixon pardon and the Clinton settlement both presumed potential exposure to prosecution once they became former Presidents.

Out of necessity, the Fitzgerald section adopts an analogy from that precedent to this one: In the same way that Fitzgerald likened the President to prosecutors and judges who enjoy immunity for their official acts, Fitzgerald did not immunize those same prosecutors and judges from other crimes. At a time of increased focus on undeclared gifts that Clarence Thomas has accepted from people with matters before the court and after a Sam Alito interview — with someone who has matters before the court — in which he claimed separation of powers prohibited Congress from weighing in on SCOTUS ethics, DOJ cited the 11th Circuit opinion holding that then-Judge Alcee Hastings could be prosecuted. That is, whatever the outcome of this dispute, it may have implications for judges just as it will for Presidents.

Only after those lengthy sections does DOJ get into the specifics of this case, arguing:

  • By misrepresenting the indictment in a bid to repackage it as acts that fit within the President’s official duties, Trump has not treated the allegations as true, as Motions To Dismiss must do
  • Trump’s use of the Take Care Clause to claim the President’s official duties extend to Congress and the states is not backed by statute
  • Because Trump is accused of conspiring with people outside of the government — unsurprisingly, DOJ ignores the Jeffrey Clark allegations in this passage (CC4), but while it invokes Rudy Giuliani (CC1), John Eastman (CC2), Kenneth Chesebro (CC5), and Boris Epshteyn (CC6), it is curiously silent about the allegations pertaining to Sidney Powell (CC3) — the case as a whole should not be dismissed

In total, DOJ’s more specific arguments take up just six pages of the response. I fear it does not do as much as it could do in distinguishing between the role of President and political candidate, something that will come before SCOTUS — and could get there first — in the civil suits against Trump.

And its commentary on Trump’s attempt to use the Take Care Clause to extend the President’s authority into areas reserved to the states and Congress is, in my opinion, too cursory.

The principal case on which the defendant relies (Mot. 35-36, 38, 43-44) for his expansive conception of the Take Care Clause, In re Neagle, 135 U.S. 1 (1890), cannot bear the weight of his arguments. In Neagle, the Supreme Court held that the Take Care Clause authorized the appointment of a deputy marshal to protect a Supreme Court Justice while traveling on circuit even in the absence of congressional authorization. Id. at 67-68; see Logan v. United States, 144 U.S. 263, 294 (1892) (describing Neagle’s holding); Youngstown Sheet & Tube, 343 U.S. at 661 n.3 (Clark, J., concurring) (same). Before reaching that conclusion, the Court in Neagle posed as a rhetorical question—which the defendant cites several times (Mot. 35, 38, 43, 44)—whether the president’s duty under the Take Care Clause is “limited to the enforcement of acts of congress or of treaties of the United States according to their express terms; or does it include the rights, duties, and obligations growing out of the constitution itself, our international relations, and all the protection implied by the nature of the government under the constitution?” 135 U.S. at 64. From the undisputed proposition that the president’s powers under Article II are not limited only to laws and treaties, it does not follow, as the defendant seems to imply, that every “right, duty, or obligation[]” under the Constitution is necessarily coterminous with the president’s powers under the Take Care Clause. Under that theory, for example, the president could superintend Congress’s constitutional obligation to keep a journal of its proceedings, U.S. Const. art. I, § 5, cl. 3, or the judiciary’s duty to adjudicate cases and controversies, U.S. Const. art. III, § 2, cl. 1.

The 11th Circuit and then SCOTUS will be facing a similar, albeit better argued, Take Care Clause argument when they review Mark Meadows’ bid to remove his Georgia prosecution. You’d think DOJ could do better — or at the very least note that Trump abdicated all premise of upholding the Take Care Clause during a crucial 187 minutes when his mob was attacking the Capitol.

All that said, I’m as interested in this response for the associated arguments — the seemingly hypothetical ones — such as the one (already noted) that in weighing this argument, the Supreme Court may also have to consider, again, whether they themselves are immune from prosecution for bribery.

It’s not just Clarence Thomas whose actions this fight could implicate.

In two places, DOJ uses hypotheticals to talk about other Presidential actions that might be crimes, rather than focus on the specifics of the case before Judge Chutkan.

For example, DOJ points to the possibility that a President might trade a pardon — a thing of value — as part of a quid pro quo to obtain false testimony or prevent true testimony.

For example, where a statute prohibits engaging in certain conduct for a corrupt purpose, the statute’s mens rea requirement tends to align, rather than conflict, with the president’s Article II duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, which would weigh heavily against the need for immunity. To illustrate, although the president’s power to grant pardons is exclusive and not subject to congressional regulation, see United States v. Klein, 80 U.S. (13 Wall.) 128, 147-48 (1872), criminal immunity should not shield the corrupt use of a presidential pardon—which plainly constitutes “anything of value” for purposes of the federal bribery statute, see 18 U.S.C. § 201(b)(3)—to induce another person to testify falsely or not to testify at all in a judicial, congressional, or agency proceeding.

Less than five years ago, of course, Roger Stone was telegraphing that prosecutors had offered him leniency if he would testify about dozens of conversations that he had with Trump during the 2016 election. Less than five years ago, the newly cooperative Sidney Powell first asked Trump to hold off on pardoning Mike Flynn, only to welcome a Trump pardon of Flynn while Powell and Flynn plotted ways to steal the election. Less than five years ago, Trump gave a last minute pardon to Steve Bannon, who currently faces four months of prison time because he refused to testify to Congress.

I’m not saying DOJ will revisit these pardons, all of which fit squarely within such a quid pro quo description. I’m noting that if the argument as a whole survives, this part of it may also survive.

The same is true of an even splashier passage. A paragraph describing the implications of Trump’s claim to absolute immunity lays out what some commentators have taken as hyperbolic scenarios of presidential corruption.

The implications of the defendant’s unbounded immunity theory are startling. It would grant absolute immunity from criminal prosecution to a president who accepts a bribe in exchange for a lucrative government contract for a family member; a president who instructs his FBI Director to plant incriminating evidence on a political enemy; a president who orders the National Guard to murder his most prominent critics; or a president who sells nuclear secrets to a foreign adversary. After all, in each of these scenarios, the president could assert that he was simply executing the laws; or communicating with the Department of Justice; or discharging his powers as commander-in-chief; or engaging in foreign diplomacy—and his felonious purposes and motives, as the defendant repeatedly insists, would be completely irrelevant and could never even be aired at trial. In addition to the profoundly troubling implications for the rule of law and the inconsistency with the fundamental principle that no man is above the law, that novel approach to immunity in the criminal context, as explained above, has no basis in law or history.

These seemingly extreme cases of crimes a President might commit, crimes that everyone should agree would face prosecution, include (these are out of order):

  • A President ordering the National Guard to murder his critics
  • A President ordering an FBI agent to plant evidence on his political enemy
  • A bribe paid in exchange for a family member getting a lucrative contract
  • A President selling nuclear secrets to America’s adversaries

Like the pardon discussion above, these hypotheticals — as Commander-in-Chief, with the conduct of foreign policy, with the treatment of classified materials — invoke actions where DOJ typically argues that the President is at the zenith of his power.

We have no reason to believe that Trump ordered the National Guard, specifically, to murder his critics. But we do know that on January 3, 2021, Trump proposed calling out 10,000 members of the National Guard to “protect” his people and facilitate his own march on the Capitol.

And he just cut me off, and he goes, well, we should call in the National Guard.

And then I think it was Max who said something to the effect of, Well, we should only call in the Guard if we expect a problem. And then the President says, no, we should call in the Guard so that there aren’t – so that there isn’t a problem. You know, we need to make sure people are protected.

And he said – he looked over at Max, and I don’t know if somebody was standing behind him or not. He just looked the other way from me and says, you know,  want to call in 10,000 National Guard. And then  opened my folder and wrote down 10,000 National Guard, closed my folder again.

We know that days later Mark Meadows believed the Guard would be present and Proud Boy Charles Donohoe seemed to expect such protection.

Similarly, we don’t know of a specific instance where Trump ordered an FBI agent to plant information on his political enemy. But we do know that as part of a Bill Barr-directed effort to reverse the Mike Flynn prosecution in 2020, misleading dates got added to the notes of Trump’s political enemies, Peter Strzok and Andrew McCabe.

Days after those misleading dates were made public via Sidney Powell, Trump used the misleading dates in a packaged debate attack on Joe Biden.

President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.

We know of no instance where Trump accepted a bribe in response to which a family member got a US government contract. We do, however, know of an instance where the Trump Administration gave the Saudis something of value — at the least, cover for the execution of Jamal Khashoggi — which everyone seems to believe has a tie to Jared’s lucrative $2 billion contract with the Saudi government.

As to selling nuclear secrets to a foreign adversary? Well, we know Trump had some number of nuclear secrets in his gaudy bathroom and then in his leatherbound box. We have no fucking clue what happened to the secrets that Walt Nauta allegedly withheld from Evan Corcoran’s review that got flown to Bedminster just before a Saudi golf tournament, never to be seen again.

All of which is to say that these edge cases — examples of Presidential misconduct that some commentators have treated as strictly hypothetical — all have near analogues in Trump’s record.

This response is a response about a very specific indictment, an indictment that describes actions Trump took as a candidate, often with those outside government, in ways that usurped the authorities reserved to states and Congress.

But in several points in the filing, DOJ invites review of other potential crimes, crimes conducted at the zenith of Presidential power, but crimes that may — must — otherwise be illegal, if no man is above the law.

Release the Kraken: Sidney Powell Pleading Guilty

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Sidney Powell is pleading guilty to six counts of conspiring to interfere with election administration in Fulton County. These will be misdemeanors treated under the First Offender Act. She will be sentenced to six years of probation.

She is required to testify against any and all co-defendants in the case.

Gary Shapley’s “Red Line” Tantrum Actually Started Two Weeks Earlier

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Days before an October 7, 2022 meeting at which, Gary Shapley has claimed for months, his “red line” was crossed, the thing he has used to excuse months of leaking as “whistleblowing,” he scripted the things — including a demand for a Special Counsel to make the decision that David Weiss announced having made in the meeting — that Shapley claimed to record in real time at the meeting.

Indeed, the documents House Ways and Means released last month purporting to support their complaints about the Hunter Biden prosecution show that Shapley’s tantrum had been going on for weeks and had started in significant part because the charges he was demanding wouldn’t be rolled out in advance of the 2022 election.

It has already been established that no other attendee at the October 7, 2022 meeting has backed Gary Shapley’s version of that meeting. No other attendee remembered David Weiss conveying that he didn’t have the authority to make this charging decision regarding Hunter Biden on his own. Most attendees have charitably explained that Shapley didn’t understand what he was hearing, particularly with regards to Special Attorney versus Special Counsel status. In his testimony to the House Judiciary Committee, Matthew Graves attributed Shapley’s claims to, “the garble that can happen when you layer hearsay on top of hearsay on top of hearsay. And when you look at a lot of this, it’s someone said that someone said that someone said.”

Even just Shapley’s own notes undermine his claim. As I have noted, between his hand-written contemporaneous notes and his emailed memorialization, Shapley reordered how things happened at the meeting, moving the reasons Weiss gave on October 7 for why he wouldn’t charge 2014 and 2015 — the charges against Hunter Biden that would have to be charged in DC — after Shapley’s own claim that David Weiss didn’t have the authority to make that prosecutorial decision.

Per his contemporaneous notes, the first thing discussed after the discussion about the leak was Weiss’ rationale for not charging 2014 and 2015, the two more substantive years that would have to be charged in DC. Once you’ve explained that, then whether or not Weiss got Special Attorney status for DC is significantly moot (2016 was only ever treated as a misdemeanor).

In his email to his boss, though, Shapley moved that discussion to after his argument, covering the DC charges, the LA charges, and the involvement of DOJ Tax Attorney, that Weiss didn’t have authority to charge. If Weiss had already explained his prosecutorial decision about the most problematic Burisma years — something Shapley’s hand-written notes record him has having done — then none of the other complaints about these years (that Weiss or Lesley Wolf let the Statutes of Limitation expire, that Weiss didn’t get Special Attorney authority in DC) matter. Shapely reorders his notes to hide the fact that the DC decision didn’t matter.

Shapley’s hand-written notes record Weiss sharing a prosecutorial decision — not to charge the 2014 and 2015 tax years. By making a decision not to charge in DC, Weiss was exercising the prosecutorial authority Shapley claimed Weiss said he didn’t have. Once you describe Weiss making a prosecutorial decision, then any claim that he didn’t have prosecutorial authority crumbles.

It crumbles even more given a few other details.

Shapley’s retroactive memorialization of the October 7, 2022 expresses great fury over Weiss’ decision not to charge the 2014 and 2015 years, as well as the delay of charges until after the election.

But Shapley learned of this weeks and even months earlier. 

On July 29, for example, Joseph Ziegler asked Lesley Wolf about timing. Per Shapley’s own memorialization, she said Weiss was aiming to indict before the end of September, but Wolf herself expressed doubt that would happen. That comment on timing, coupled with her stated disinclination to toll the 2014 tax year, was a pretty solid indication that she was disinclined to charge 2014.

Zeigler

Any dates or goals?

Wolf

David has indicated that the end of September would be his goal to charge. The is reflective of keeping everything on track. They do not want to get any closer to a mid-term. If doesn’t happen by end of September it would have to wait until November after the elections. She stated she does not think that is likely to by charged by September.

Sol on 2014 blows on November 8, 2022.

X Factor on timing will include any delay defense counsel has requested and that they would be amenable to toll statutes. She is not leaning toward tolling again…but it is possible.

Current plan is that the prosecution recommendation will be collaborative with DOJ Tax and USAO.

[snip]

They will communicate any decisions on specific tax years and decision to charge or not charge to the prosecution team in advance of any final document. [my emphasis]

On August 16, the IRS investigators had a meeting with David Weiss, one that Wolf happily arranged on August 8. Because Wolf and other DOJ personnel could’t attend, that would be a second meeting the IRS had with David Weiss alone.

On August 11, DOJ Tax tried to set up a meeting for the following day, an invitation which Ziegler accepted; Shapley was not invited. There’s no memorialization of this meeting, at which DOJ Tax probably explained why it viewed the 2014/2015 tax years as weaker charges.

On August 15, in advance of the meeting with Weiss, Shapley reminded  Darrell Waldon and Michael Batdorf about the forthcoming meeting with Weiss. Only Michael Batdorf, the second-level supervisor who testified that Shapley had a habit of, “a tendency to go to level like grade 7 five-alarm fire on everything,” responded. Shapley’s August 17 memorialization of the August 16 meeting, shared with those supervisors again, showed that Weiss was “leaning” towards only charging the CA charges, 2017 to 2019. Shapley recorded Weiss aiming to charge by the end of September, but said himself it’d be “October/November” (even though, in July, Wolf had said that if it wasn’t charged by September, it would be after November).

Here’s what Shapley said about 2014 and 2015 in that email:

We again pushed back on not charging 2014/2015. DOJ Tax continues the position that the defenses (load/taxes paid by another person on half the income) would make it too complex for the jury. I believe their position is unsupportable–both considering precedent and evidence. I made it clear that not only do we disagree with that position but that we could provide countless prosecution recommendations that included diverted income to nominees and various loan claims to support our position. The USA agrees with us but then talks to DOJ Tax and they convince him otherwise. This has happened a couple times. As a result, we will continue to communicate our position to ensure this moves forward consistent with how other tax cases would be treated with similar fact patterns.

I explained that 2014 is not charged how it would severely diminish of the overall conduct and would essentially sanitize some major issues to include the Burisma/Ukraine unreported income. I also explained that if 2014 is not charged and/or included in a statement of facts in a guilty plea, that the unreported income from Burisma that year would go untaxed. I believe leaving out 2014/2015 would deliver a message that is contrary to IRS’s efforts to promote voluntary compliance. [my emphasis]

Some of this is about getting taxes paid — the explanation Shapley would repeat in his memorialization of the October 7 meeting. But some of it is about tying Hunter’s tax crimes to Burisma.

Once again, Batdorf was the only who responded. He said he would escalate Shapley’s concerns still further, so the Chief and Deputy Chief of IRS could “at least show full support for the 2014/2015 years.” In Waldon’s testimony, he expressed being surprised at the October 7 meeting, because “I was not fully aware of a decision regarding some of the investigative years,” (49) a view that may stem from Shapley’s efforts in August to reverse this decision.

On August 18, Mark Daly from DOJ tax sent the investigative team (but not Shapley) an email that seems consistent with presenting to grand juries in both Delaware and Los Angeles in September — but not DC, once again consistent with a decision not to charge 2014 and 2015. Of note: this email was saved on June 27 of this year, before Ziegler and Shapley testified to the Oversight Committee on July 19 and Ziegler offered to go back to find more materials. Ziegler appears to have already taken steps to share information that he feigned was just a response to Congressional inquiries.

Shapley appears to have memorialized an August 25 email from Lesley Wolf asking a newly added FBI agent, along with Ziegler and Mark Daly, not to use email to coordinate between meetings. Shapley wasn’t a recipient of this particular email. It’s an example of the double set of books Shapley confessed to in his original deposition.

On September 20, 2022, over a week before the interview of James Biden (Hunter’s uncle and sometime business partner and Joe’s brother) and the day after Martin Estrada was confirmed as US Attorney for Los Angeles, Shapley emailed Weiss, cc’ing no one else, asking for a call in the following two days. The next day, September 21 at 1:23PM, Weiss said he would set up a meeting “in the near term,” including IRS and FBI, to provide an update. This email thread, which Shapley would pick up over a month later, would become the one where Shapley’s paranoia about Weiss cutting off communication with Shapley first expressed. As we’ll see, this Shapley request to Weiss was also the ultimate genesis of the October 7 meeting.

Just over two hours after Weiss promised an update shortly on September 21, Shawn Weede, Weiss’ Criminal Chief, wrote to set up the meeting Weiss had promised, proposing the meeting for September 28 (still one day before the interview of James Biden). Shapley responded 22 minutes later, noting that he would be in the Netherlands on the day of the proposed meeting, but would be willing to call in.

The next day, at 11:15AM, Weede wrote back to say a “sanitized” meeting was unworkable, and so proposed the meeting for the week of October 3, after Shapley got back.

Also on September 22, Shapley memorialized a meeting that started at 2:30PM noting that Lesley Wolf and DOJ Tax’s Mark Daly joined the meeting late, but without documenting anyone else who attended. The memorialization was closely focused on briefings of Estrada’s office on the case (though Shapley refers to Estrada as “her”). It also clearly records DOJ tax still conducting their review, as well as a decision not to charge either the gun charge and/or anything else until after the election — precisely the eventuality that Wolf had warned would happen almost two months earlier.

Gun charge will likely not be indicted in October.

[snip]

USAO and DOJ Tax made the decision not to charge until after the election. They said why should they shoot themselves in the foot by charging before.

Within an hour after the start of the call, Shapley was going ballistic about precisely that eventuality. Starting at 3:34PM, Shapley alerted Batdorf — but not his immediate supervisor, Waldon,

Big news on Sportsman. Joe Ziegler and I need to speak with you as soon as possible.

In a follow-up, Shapley explained that the “bad news” he had was precisely what he had been warned about in July, that the charges would be delayed until after the election.

Bad news. Continued inappropriate decisions affecting timing. i.e. Election. We can talk later if you are busy….I believe their actions are simply wrong and this is a huge risk to us right now.

Note: There was no risk to the IRS of delay after the election. It would mean the 2014 charges would toll (unless Hunter’s lawyers agreed to waive tolling, as they had before), but that’s another thing Shapley was warned about. A significant part of Shapley’s tantrum seems to stem from a personalized concern that charges would not come out before the election.

Batdorf ended the exchange by instructing, “Please ensure your ASAC and SAC are updated as well.”

Shapley did that, but not until almost two hours later, in a 5:28PM email to Darrell Waldon (his ASAC), Lola Watson (his SAC), and Michael Batdorf. Without noting that he had already bypassed chain of command, Shapley complained,

During todays SM call there was some information provided to the team concerning decisions made by the USAO and DOJ that need to be discussed. For example, the AUSA stated that they made a decision not to charge until after the election. In itself, the statement is inappropriate let alone the actual action of delaying as a result of the election. There are other items that should also be discussed that are equally inappropriate.

None of those other items “that should be discussed” were obviously reflected in his memorialization of that call.

At least on paper, this tantrum, made two weeks before a pre-election leak to the WaPo, was about something he had been warned of in July, not news at all, but one tied — explicitly in his mind — to the election, not timing per se.

Side note: Unlike Ziegler’s, many of the documents Shapley shared are stripped of all metadata. Not this email, though. This email — which he shared twice (Attachment 5, Attachment 24) — both reflect a creation date of September 20 (this is European notation), over eight hours apart, with the second reflecting Tristan Leavitt as document author.

That would mean these documents were saved after Darrell Waldon (September 8) and Michael Batdorf (September 12) testified. There’s good reason to believe these documents were chosen with some knowledge of the IRS supervisors’ testimony.

To make it plain: For months, Gary Shapley claimed that his red line was crossed on October 7, 2022. But the emails he himself turned over show that’s not true. His red line was crossed on September 22, 2022, and the red line had a lot to do with making charges public in advance of the election.

Importantly, that means his red line was crossed before the leak to the WaPo, not afterwards.

The day after Shapley’s tantrum started — which no one at DE USAO or FBI would have known about — the FBI ASAC seconded the plan to wait until Shapley returned before holding the meeting that would become the October 7 one, noting that then Weiss could be present.

Meanwhile, on September 28, Waldon emailed Ziegler and all the other people Shapley had involved in his tantrum, noting that he was trying to arrange a meeting with Weiss and Poole. Ziegler responded to everyone, on the morning of September 29, promising any update from prosecutors in CA. Waldon responded asking Ziegler to call him. And Ziegler responded, suggesting they should do a pitch on the 2014 and 2015 years to DC prosecutors: “we also need to request the presentation of 2014 and 2015 to the criminal chief / US attorney in DC – similar to what we would do in California for 2017 2018 and 2019.” Again: Waldon seems to have been surprised when, at the October 7 meeting, Weiss announced that the decision had been made.

That was at 11:11AM on September 29. At 2:25PM, Ziegler went into the interview with James Biden, Hunter’s uncle. Lesley Wolf and two other prosecutors who, like Ziegler, would not be at the October 7 meeting, also participated in the interview. The interview focused largely on the 2017 to 2019 years (though also asked questions that might reflect a campaign finance investigation into Kevin Morris), but which Ziegler now points to as critical testimony supporting his argument for felony charges in 2018. Shapley was already a week into a tantrum about charges not being filed before the election before this interview.

Seven minutes after the James Biden interviewed finished — based on public records, at least, the last major investigative step in the investigation, Weede proposed and the ASAC confirmed a meeting for October 7 at 11AM. The FBI ASAC confirmed as well. Then the next day, a Friday, the ASAC followed up to confirm once again, management and investigators would be present. She followed up again at end of day Monday, October 3, confirming she and her boss, Thomas Sobocinski would attend. Weede confirmed. The ASAC touched base once again on Tuesday morning.

Only at that point, on October 4 — with no record in the thread that Shapley had told his own boss, Waldon, that this meeting was in the works, did he respond to the ASAC alone, asking for her top three items “so we can be on the same page.”

His own list might was effectively a first draft of the things he would record as having happened in notes and a memorialization email days later: Special Counsel, the delay until after the election, and venue.

At 2:26PM, WaPo posted the story that preempted prosecutors’ decision to wait until after the election before charging — the decision Shapley first learned of in July but staged a tantrum about more recently.

At 4:34, the ASAC responded, asking if Shapley’s ASAC (Waldon) would attend, and describing her own agenda as:

  • Delays
  • Venue
  • Communication
  • Anything further that develops by tomorrow

Of course: that “anything further that develops” had already developed: the story in the WaPo.

Shapley responded a minute later, saying, he had just tried to call her, but that yes, both Shapley and his SAC would attend.

Nine minutes after that exchange occurred with no mention of the WaPo story, Shapley informed his bosses about it.

Just an FYI that there was a media leak today purportedly from the “agent” level on Sportsman. I imagine it will be a topic of discussion at tomorrows meeting in Delaware. I spoke with Justin Cole about this to provide anything he may need.

I have no additional insight that is anything but a rumor.

Federal agents see chargeable tax, gun-purchase case against Hunter Biden – Espotting.com

Just keeping you informed.

[Link to original WaPo story, but note that Shapley shared an Espotting link]

As I’ve noted, Shapley’s reference to rumors is inconsistent with his past statements about the leak.

As all that was going on, the other DE AUSA besides Wolf, Carly Hudson, wrote Ziegler at 10:07AM on October 6, asking him what he was supposed to remind her about — something he heard immediately after the James Biden interview on September 29.

David asked me to remind him what you [s]aid “regarding the call you received from management after the James Biden meeting.”  I’m not 100% sure what he means.  Would you mind reminding me about that call so I can remind him?

Ziegler didn’t respond until 6:51PM, well after the WaPo had published the story. Ziegler explained that IRS management had been informed that DOJ Tax didn’t anticipate charging until 2023; they weren’t done with the approval process.

They heard from DOJ-Tax that they don’t expect the case to be indicted until 2023 as they still have various levels of approval. I think this is what you are asking about.

There’s no documentary record of it, but it would be inconceivable that Ziegler hadn’t shared this with Shapley when he heard it, on September 29. Which is to say that Shapley knew there were reasons — beyond the fact that James Biden wasn’t interviewed until September 29 and beyond the election — why Hunter wasn’t going to be charged until after the election.

Nevertheless, going into a meeting he would much later pitch as his “red line,” a meeting that ended up significantly focused on a pre-election leak promising charges, Shapley would claim the election was what was causing the delay.

Bret Baier’s False Claim, the Escort Service, and Former Fox News Pundit Keith Ablow

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Deep into one version of what is referred to as the “Hunter Biden” “laptop,” (according to reports done for Washington Examiner by Gus Dimitrelos*) there’s a picture of a check, dated November 14, 2018, for $3,400, paid to a woman with a Slavic name. The check bears a signature that matches others, attributed to Hunter Biden, from the “laptop” also attributed to him. Along with a line crossing out Hunter’s ex-spouse’s name on the check, the check was marked on the memo line: “Blue Water Wellness” along with a word that is illegible–possibly “Rehab.”

The check appears in a chat thread, dated November 26, 2018, apparently initiated to set up tryst with an escort in New York  City. Just over 12 hours after setting up that tryst, the Russian or Ukrainian woman who manages the escort service, Eva, wrote back, asking Hunter if he was in New York, because she had a problem with his check, that $3,400 check dated twelve days earlier. Hunter was effusively apologetic, and offered to pay the presumed sex worker via wire, because it’s the only way he could be 100% certain it would get to her. Shortly thereafter, he sent two transfers from his Wells Fargo account, $3,200 plus $30 fees, directly to the woman’s bank account, and $800 via Zelle drawn on Wells Fargo.

Those transfers from Hunter Biden’s Wells Fargo account to a presumed sex worker with a Slavic name took place between the day, October 31, 2018, when IRS Agent Joseph Ziegler, newly arrived on IRS’ international tax squad, launched an investigation into an international online sex business and the day, December 10, 2018, when Ziegler would piggyback off that sex business investigation to launch an investigation into Hunter Biden. The Hunter Biden investigation was initially based off a Suspicious Activity Report from Wells Fargo sent on September 21, 2018 and from there, quickly focused on Hunter’s ties to Burisma, precisely the investigation the then President was demanding.

Understand: The entire five year long investigation of Hunter Biden was based off payments involving Wells Fargo quite similar to this one, the check for $3,400 to a sex worker associated (in this case, at least) with what Dimitrelos describes as an escort service.

Research on the company yielded bank reports indicating that [Hunter Biden] made payments to a U.S. contractor, who also had received payments from that U.K. company.

Only, this particular payment — the need to wire the presumed sex worker money to cover the check — ties the escort service to one of the businesses of former Fox News pundit Keith Ablow: Blue Water Wellness, a float spa just a few blocks down the road from where Ablow’s psychiatric practice was before it got shut down amid allegations of sex abuse of patients and a DEA investigation. Emails obtained from a different version of the “laptop” show that on November 13, Blue Water Wellness sent Hunter an appointment reminder, albeit for an appointment on November 17, not November 14. That appointment reminder is the first of around nine appointment reminders at the spa during the period.

The tryst with the presumed sex worker with the Slavic name does appear to have happened overnight between November 13 and 14.  Between 1:58 and 6:33AM, there were two attempts to sign into Hunter’s Venmo account from a new device, five verification codes sent to his email, and two password resets, along with the addition of the presumed sex worker to his Zelle account at Wells Fargo, which he would use to send her money over a week later. All that makes it appear like they were together, but Hunter didn’t have his phone, the phone he could use to pay her and so tried to do so from a different device. Maybe, he gave up, and simply wrote her a check, from the same account on which that Zelle account drew.

None of which explains why he appears to have written “Blue Water Wellness” on a check to pay a presumed sex worker. Maybe he was trying to cover up what he was paying for. Maybe he understood there to be a tie. Or maybe it was the advertising Blue Water did at the time.

Deep in a different part of the laptop analyzed by Dimitrelos, though, a deleted invoice shows that Hunter met with former Fox News pundit Keith Ablow on the same day as Hunter apparently wrote that check to the presumed sex worker. The deleted invoice reflects two 60-minute sessions billed by Baystate Psychiatry, the office just blocks away from the float spa.

Emails obtained from a different version of the “Hunter Biden” “laptop” show that at some point on November 26, 2018, as Hunter first arranged a tryst in New York City and then, no longer in New York, sent a wire directly from Wells Fargo to the presumed sex worker, someone accessed Hunter’s Venmo account from a new device — successfully this time — one located in Newburyport, MA, where former Fox News pundit Keith Ablow’s businesses were.

There are a number of things you’d need to do to rule out the possibility of Russian involvement in the process by which a laptop purportedly belonging to Hunter Biden showed up at the Wilmington repair shop of John Paul Mac Isaac, from there to be shared with Rudy Giuliani, who then shared it with three different Murdoch outlets and a ton of other right wing propagandists, many of them members of Congress.

One of those would be to rule out that any of the sex workers tied to this escort service had a role in compromising Hunter Biden’s digital identity, thereby obtaining credential information that would make it easy to package up a laptop that would be especially useful to those trying to destroy the life of the son of Donald Trump’s opponent. There’s no evidence that any of the sex workers were involved, but throughout 2018, there are a number of device accesses involving Hunter’s Venmo account, the iCloud account packaged up on “the laptop,” and different Google accounts — including between the day on November 13 when Hunter appears to have met the woman with the Slavic name and the date on November 26 when he wired her money — that should at least raise concerns that his digital identity had been compromised. I’ve laid out just a fraction of them in this post and this post, both of which focus on the later period when Hunter was in the care of the former Fox News pundit.

If you wanted to compromise Hunter Biden, as certain Russian-backed agents in Ukraine explicitly did, doing so via the sex workers, drug dealers, and fellow junkies he consorted with in this period would be painfully easy. Indeed, in Hunter’s book, he even described other addicts walking off with his, “watch or jacket or iPad—happened all the time.” Every single one of those iPads that walked away might include the keys to Hunter’s digital life, and as such, would be worth a tremendous amount of money to those looking to score their next fix. To rule out Russian involvement, you’d have to ID every single one of them and rule out that they were used for ongoing compromise of Hunter or, barring that, you’d have to come up with explanations, such as the likelihood that Hunter was trying to pay a sex worker but didn’t have his phone with him and so used hers, for the huge number of accesses to his accounts, especially the iCloud account ultimately packaged up.

Of course, explaining how a laptop purportedly belonging to Hunter Biden showed up at Mac Isaac’s shop would also require explaining how a laptop definitely belonging to Hunter Biden came to be left in former Fox News pundit Keith Ablow’s possession during precisely the same period when (it appears) Hunter Biden’s digital life was getting packaged up, a laptop Ablow did nothing to return to its owner and so still had when the DEA seized it.

Bret Baier lied about the Hunter Biden laptop

Given the unanswered questions about the role of a former Fox News pundit in all this, you’d think that Fox personalities would scrupulously adhere to the truth about the matter, if for no other reason than to avoid being legally implicated in any conspiracies their former colleague might have been involved with, or to avoid kicking off another expensive defamation lawsuit.

Sadly, Bret Baier couldn’t manage to stick to the truth in his attempt to sandbag former CIA Director Leon Panetta on Friday. Baier debauched the gravity of an appearance purportedly focused on the Hamas attack and aftermath,  with what he must have thought was a clever gotcha question about a letter Leon Panetta signed in October 2020 stating the opinion that the emails being pitched by Murdoch outlet New York Post, “has all the classic earmarks of a Russian information operation.” The letter not only expressed an opinion, but it cited four specific data points and two observations about known Russian methods, all of which were and remain true to to this day.

And in the process, Bret Baier made a false claim.

Bret Baier made a false claim and all of Fox News’ watchers and all the other propagandists made the clip of Bret Baier making a false claim go viral, because they apparently either don’t know or don’t care that Baier couldn’t even get basic facts right. They are positively giddy that Baier used the tragedy of a terrorist attack to demonstrate his own ignorance or willful deceit about Fox’s favorite story, Hunter Biden’s dick pics.

From the get-go, Baier adopted a rhetorical move commonly used by Murdoch employees and frothy right wingers sustaining their blind faith in “the laptop:” He conflated “the laptop” with individual emails.

Baier: I’d be remiss if I didn’t ask you about that letter you signed onto from former intelligence officials saying that the laptop and the emails had all the classic earmarks of a Russian information operation. Obviously the New York Post and others saying the Hunter Biden letter was the real disinformation all along. Um, that letter was used in the debate, I haven’t asked you this. But do you have regrets about that, now looking back, knowing what you know now? [my emphasis]

The spooks’ letter Panetta signed addressed emails, not “the laptop.” The only use of the word “laptop” in the letter was in labeling this a potential “laptop op,” a way to package up emails meant to discredit Joe Biden. The letter even includes “the dumping of accurate information” among the methods used in Russian information operations.

Having conflated emails and “the laptop,” Baier then asked whether Panetta thinks “it,” now referring just to “the laptop,” not even the hard drives of copies from the laptop in question, was real.

Panetta: Well, you know, Bret, I was extremely concerned about Russian interference and misinformation. And we all know it. Intelligence agencies discovered that Russia had continued to push disinformation across the board. And my concern was to kind of alert the public to be aware that these disinformation efforts went on. And frankly, I haven’t seen any evidence from any intelligence that that was not the case.

Baier: You don’t think that it was real?

Having first conflated emails and the laptop, then substituted the laptop for the emails addressed in the letter, Baier then falsely claimed that, “Hunter Biden said it was his laptop.”

Panetta: I think that, I think that disinformation is involved here. I think Russian disinformation is part of what we’re seeing everywhere. I don’t trust the Russians. And that’s exactly why I was concerned that the public not trust the Russians either.

Baier: I don’t want to dwell on this because we have bigger things to talk about. Bigger urgency. But obviously, Hunter Biden said it was his laptop, and this investigation continues. [my emphasis]

I understand how frothy right wingers misunderstand what Hunter Biden has said about the data associated with “the laptop,” but Baier presents as a journalist, and you’d think he’d take the time to read the primary documents.

Hunter Biden admits some data is his, but denies knowledge of the “laptop”

The claim that Hunter Biden has said “the laptop” was his arises from three lawsuits: first, from Hunter Biden’s response and counterclaim to John Paul Mac Isaac’s lawsuit, then of Hunter’s lawsuit against Garrett Ziegler, and finally, the lawsuit against Rudy Giuliani.

Regarding the first of those filings, Hunter Biden based his countersuit against JPMI on an admission that JPMI came into possession of electronically stored data, at least some of which belonged to him. But he specifically did not admit that JPMI “possessed any particular laptop … belonging to Mr. Biden.”

5. In or before April 2019, Counterclaim Defendant Mac Isaac, by whatever means, came into possession of certain electronically stored data, at least some of which belonged to Counterclaim Plaintiff Biden.1

1 This is not an admission by Mr. Biden that Mac Isaac (or others) in fact possessed any particular laptop containing electronically stored data belonging to Mr. Biden. Rather, Mr. Biden simply acknowledges that at some point, Mac Isaac obtained electronically stored data, some of which belonged to Mr. Biden.

Regarding JPMI’s claims that Hunter dropped off the laptop,

169. HUNTER knowingly left his laptop with Plaintiff on April 12, 2019.

170. Soon thereafter HUNTER returned to Plaintiff’s shop to leave an external hard drive to which Plaintiff could transfer the data from HUNTER’s laptop.

171. HUNTER never returned to Plaintiff’s shop pick up his laptop

Hunter denied sufficient knowledge to answer all of them.

169. Mr. Biden is without knowledge sufficient to admit or deny the allegations in paragraph 169.

170. Mr. Biden is without knowledge sufficient to admit or deny the allegations in paragraph 170.

171. Mr. Biden admits that, if he ever had visited before, he did not return to Plaintiff’s shop.

In response to JPMI’s claim that Hunter knew of the phone call his lawyer, George Mesires, made to JPMI in October 2020 and the email follow-up that in any case doesn’t substantiate what JPMI claimed about the phone call,

31. On October 13, 2020, Plaintiff received a call from Mr. George Mesires,1 identifying himself as HUNTER’s attorney, asking if Plaintiff still had possession of his client’s laptop and following up thereafter with an email to the Plaintiff. Copy of email attached as EXHIBIT C.

[snip]

174. HUNTER’s attorney, George Mesires contacted Plaintiff on October 13, 2020 about the laptop.

Hunter admitted that Mesires was his attorney but denied knowing anything more.

31. Mr. Biden admits that Mr. George Mesires was his attorney. Mr. Biden is without knowledge sufficient to admit or deny the remaining allegations in paragraph 31.

[snip]

174. Mr. Biden admits that Mr. Mesires was his attorney. Mr. Biden is without knowledge sufficient to admit or deny the remaining allegations in paragraph 174.

In response to JPMI’s claim that Hunter Biden said something about the laptop without mentioning JPMI,

172. When asked about the laptop in a television interview broadcast around the world, HUNTER stated, “There could be a laptop out there that was stolen from me. It could be that I was hacked. It could be that it was the – that it was Russian intelligence. It could be that it was stolen from me. Or that there was a laptop stolen from me.” See https://edition.cnn.com/2021/04/02/politics/hunterbiden-laptop/index.html.

173. HUNTER knew it was his laptop.

Hunter Biden admitted he made the comment that didn’t mention JPMI — a comment on which JPMI based a $1.5M defamation claim!! — but again denied knowing whether or not the laptop was his.

172. Admitted and Mr. Biden further answers that the statement makes no mention of or even a reference to Plaintiff.

173. Mr. Biden is without knowledge sufficient to admit or deny the allegations in paragraph 173.

Of some interest, in response to JPMI’s claim that the information that appeared in the NYPost came from Hunter, who voluntarily left his laptop with JPMI,

67. The information contained in the NY POST exposé came from HUNTER who voluntarily left his laptop with the Plaintiff and failed to return to retrieve it.

Hunter outright denied the claim.

67. Denied.

Hunter Biden claimed that Rudy hacked Hunter’s data

That last claim — the outright denial that the data in the NYPost story came from Hunter — is of particular interest given something Denver Riggleman recently said. He described that the Hunter Biden team now has the data that JPMI shared with others — apparently thanks to this countersuit — and they’ve used it to compare with the data distributed forward from there.

Also, we know now, since the Hunter Biden team has the John Paul Mac Isaac data that was given to Rudy Giuliani and given to CBS, we also know that that data had no forensic chain of custody and it was not a forensic copy of any type of laptop, or even multiple devices that we can see. It was just a copy-paste of files, more or less.

[snip]

We know that there’s different data sets in different portions of the Internet attributed to Hunter’s data — or, to Hunter’s laptop.

[nip]

Now that we do have forensic data — Hunter Biden team has more foensic data than anybody else out there — we can actually start to compare and contrast. And that’s why you see the aggressiveness from the Hunter Biden legal team.

The lawsuit against Rudy and Costello claims that at some point, Rudy and Costello did things that amount to accessing Hunter’s data unlawfully. Hacking.

23. Following these communications, Mac Isaac apparently sent via FedEx a copy of the data he claimed to have obtained from Plaintiff to Defendant Costello’s personal residence in New York on an “external drive.” Once the data was received by Defendants, Defendants repeatedly “booted up” the drive; they repeatedly accessed Plaintiff’s account to gain access to the drive; and they proceeded to tamper with, manipulate, alter, damage and create “bootable copies” of Plaintiff’s data over a period of many months, if not years. 2

24. Plaintiff has discovered (and is continuing to discover) facts concerning Defendants’ hacking activities and the damages being caused by those activities through Defendants’ public statements in 2022 and 2023. During one interview, which was published on or about September 12, 2022, Defendant Costello demonstrated for a reporter precisely how Defendants had gone about illegally accessing, tampering with, manipulating and altering Plaintiff’s data:

“Sitting at a desk in the living room of his home in Manhasset, [Defendant Costello], who was dressed for golf, booted up his computer. ‘How do I do this again?’ he asked himself, as a login window popped up with [Plaintiff’s] username . . .”3

By booting up and logging into an “external drive” containing Plaintiff’s data and using Plaintiff’s username to gain access Plaintiff’s data, Defendant Costello unlawfully accessed, tampered with and manipulated Plaintiff’s data in violation of federal and state law. Plaintiff is informed and believes and thereon alleges that Defendants used similar means to unlawfully access Plaintiff’s data many times over many months and that their illegal hacking activities are continuing to this day.

[snip]

26. For example, Defendant Costello has stated publicly that, after initially accessing the data, he “scrolled through the laptop’s [i.e., hard drive’s] email inbox” containing Plaintiff’s data reflecting thousands of emails, bank statements and other financial documents. Defendant Costello also has admitted publicly that he accessed and reviewed Plaintiff’s data reflecting what he claimed to be “the laptop’s photo roll,” including personal photos that, according to Defendant Costello himself, “made [him] feel like a voyeur” when he accessed and reviewed them.

27. By way of further example, Defendant Costello has stated publicly that he intentionally tampered with, manipulated, and altered Plaintiff’s data by causing the data to be “cleaned up” from its original form (whatever this means) and by creating “a number of new [digital] folders, with titles like ‘Salacious Pics’ and ‘The Big Guy.’” Neither Mac Issac nor Defendants have ever claimed to use forensically sound methods for their hacking activities. Not surprisingly, forensic experts who have examined for themselves copies of data purportedly obtained from Plaintiff’s “laptop” (which data also appears to have been obtained at some point from Mac Isaac) have found that sloppy or intentional mishandling of the data damaged digital records, altered cryptographic featuresin the data, and reduced the forensic quality of data to “garbage.”

2 Plaintiff’s investigation indicates that the data Defendant Costello initially received from Mac Isaac was incomplete, was not forensically preserved, and that it had been altered and tampered with before Mac Issac delivered it to Defendant Costello; Defendant Costello then engaged in forensically unsound hacking activities of his own that caused further alterations and additional damage to the data he had received. Discovery is needed to determine exactly what data of Plaintiff Defendants received, when they received it, and the extent to which it was altered, manipulated and damaged both before and after receipt.

3 Andrew Rice & Olivia Nuzzi, The Sordid Saga of Hunter Biden’s Laptop, N.Y. MAG. (Sept. 12, 2022), https://nymag.com/intelligencer/article/hunter-biden-laptop- investigation.html.

I don’t think Hunter’s team would have compared the data Rudy shared with the NYPost before Hunter denied, outright, that “The information contained in the NY POST exposé came from HUNTER.” But based on what Riggleman claimed, they have since, and did compare it, before accusing Rudy and a prominent NY lawyer of hacking Hunter Biden’s data.

Hunter Biden’s team admits they don’t know the precise timing of this: “the precise timing and manner by which Defendants obtained Plaintiff’s data remains unknown to Plaintiff.” DDOSecrets points to several emails that suggest Rudy and Costello did more than simply review available data, however. For example, it points to this email created on September 2, 2020, just after the former President’s lawyer got the hard drive.

September 2, 2020: A variation of a Burisma email from 2016 is created and added to the cache. The email and file metadata both indicate it was created on September 2, 2020.

But the lawsuit, if proven, suggests the possibility that between the time JPMI shared the data with Rudy and the time Rudy shared it with NYPost, Rudy may have committed federal violations of the Computer Federal Fraud and Abuse Act — that is, Hunter alleges that between the time JPMI shared the data and the time NYPost published derivative data, Rudy may have hacked Hunter Biden’s data.

If he could prove that, it means the basis Twitter gave for throttling the NYPost story in October 2020 — they suspected the story included materials that violated Twitter’s then prohibition on publishing hacked data — would be entirely vindicated.

For example, on October 14th, 2020, the New York Post tweeted articles about Hunter Biden’s laptop with embedded images that look like they may have been obtained through hacking. In 2018, we had developed a policy intended to, to prevent Twitter from becoming a dumping ground for hacked materials. We applied this policy to the New York Post tweets and blocked links to the articles embedding those source materials. At no point did Twitter otherwise prevent tweeting, reporting, discussing or describing the contents of Mr. Biden’s laptop.

[snip]

My team and I exposed hundreds of thousands of these accounts from Russia, but also from Iran, China and beyond. It’s a concern with these foreign interference campaigns that informed Twitter’s approach to the Hunter Biden laptop story. In 2020, Twitter noticed activity related to the laptop that at first glance bore a lot of similarities to the 2016 Russian hack and leak operation targeting the dnc, and we had to decide what to do, and in that moment with limited information, Twitter made a mistake under the distribution of hacked material policy.

If Hunter can prove that — no matter what happened in the process of packaging up this data before it got to JPMI, whether it involved the compromise of Hunter’s digital identity before JPMI got the data, which itself would have been a hack that would also vindicate Twitter’s throttling of the story  — it would mean all the data that has been publicly released is downstream from hacking.

For Twitter, it wouldn’t matter whether the data was hacked by Russia or by Donald Trump’s personal lawyer, it would still violate the policy as it existed at the time.

Importantly, this remains a claim about data, not about a laptop. The lawsuit against Rudy and Costello repeats the claim made in the JPMI counterclaim: while JPMI had data, some of which belongs to Hunter, Hunter is not — contrary to Bret Baier’s false claim — admitting that, “Hunter Biden said it was his laptop.”

2. Defendants themselves admit that their purported possession of a “laptop” is in fact not a “laptop” at all. It is, according to their own public statements, an “external drive” that Defendants were told contained hundreds of gigabytes of Plaintiff’s personal data. At least some of the data that Defendants obtained, copied, and proceeded to hack into and tamper with belongs to Plaintiff.1

1 This is not an admission by Plaintiff that John Paul Mac Isaac (or others) in fact possessed any particular laptop containing electronically stored data belonging to Plaintiff. Rather, Plaintiff simply acknowledges that at some point, Mac Isaac obtained electronically stored data, some of which belonged to Plaintiff.

In two lawsuits, Hunter Biden explicitly said that he was not admitting what Baier falsely claimed he had.

I know this is Fox News, but Baier just blithely interrupted a sober discussion about a terrorist attack to make a false claim about “the laptop.”

Hunter Biden claims that Garrett Ziegler hacked Hunter’s iPhone

Hunter Biden’s approach is different in the Garrett Ziegler lawsuit, in which he notes over and over that Ziegler bragged about accessing something he claimed to be Hunter Biden’s laptop, but which was really, “a hard drive that Defendants claim to be of Plaintiff’s ‘laptop’ computer.” By the time things got so far downstream to Ziegler, there was no pretense this was actually a laptop, no matter what Baier interrupted a discussion about terrorism to falsely claim.

But that paragraph explicitly denying admission about this being a laptop is not in the Ziegler suit.

There’s a likely reason for that. The core part of the claim against Ziegler is that Ziegler unlawfully accessed a real back-up of Hunter Biden’s iPhone, which was stored in encrypted form in iTunes — just as I laid out had to have happened months before that lawsuit.

28. Plaintiff further is informed and believes and thereon alleges that at least some of the data that Defendants have accessed, tampered with, manipulated, damaged and copied without Plaintiff’s authorization or consent originally was stored on Plaintiff’s iPhone and backed-up to Plaintiff’s iCloud storage. On information and belief, Defendants gained their unlawful access to Plaintiff’s iPhone data by circumventing technical or code-based barriers that were specifically designed and intended to prevent such access.

29. In an interview that occurred in or around December 2022, Defendant Ziegler bragged that Defendants had hacked their way into data purportedly stored on or originating from Plaintiff’s iPhone: “And we actually got into [Plaintiff’s] iPhone backup, we were the first group to do it in June of 2022, we cracked the encrypted code that was stored on his laptop.” After “cracking the encrypted code that was stored on [Plaintiff’s] laptop,” Defendants illegally accessed the data from the iPhone backup, and then uploaded Plaintiff’s encrypted iPhone data to their website, where it remains accessible to this day. It appears that data that Defendants have uploaded to their website from Plaintiff’s encrypted “iPhone backup,” like data that Defendants have uploaded from their copy of the hard drive of the “Biden laptop,” has been manipulated, tampered with, altered and/or damaged by Defendants. The precise nature and extent of Defendants’ manipulation, tampering, alteration, damage and copying of Plaintiff’s data, either from their copy of the hard drive of the claimed “Biden laptop” or from Plaintiff’s encrypted “iPhone backup” (or from some other source), is unknown to Plaintiff due to Defendants’ continuing refusal to return the data to Plaintiff so that it can be analyzed or inspected. [my emphasis]

Hunter Biden’s team has backup for this assertion, thanks to the notes Gary Shapley took in an October 22, 2022 meeting about what was an actual laptop JPMI handed over to the FBI. On that laptop — which the FBI had confirmed was associated with Hunter Biden’s iCloud account and which it tied to data that could all be falsifiable to someone in possession of the laptop, which had means to intercept and redirect emails and calls to Hunter’s real devices, but which the FBI still had not validated 10 months after obtaining it — the iPhone content was encrypted.

Laptop — iphone messages were on the hard drive but encrypted they didn’t get those messages until they looked at laptop and found a business card with the password on it so they were able to get into the iphone messages [my emphasis]

Even the FBI needed to find a password to access the iPhone content that Ziegler has bragged about accessing. (Note: there have been four known accesses to this data, and every single one of them claims to have used a different means to break the encryption, which in my mind raises real questions about the nature of the business card). But the FBI had a warrant. Ziegler did not.

There are still a great deal of questions one would have to answer before entirely ruling out that Russians were involved in the process of packaging up Hunter Biden’s digital identity; the possible role of a Russian escort service is only one of at least three possible ways Russia might be involved. Yet Bret Baier is unwilling to pursue those questions — starting with the unanswered questions about the role that Baier’s former Fox News colleague played.

But with all those unanswered questions, Baier was nevertheless willing to interrupt a discussion about terrorism to make false claims about what is known.

Update: I’ve taken out that this was specifically a Russian escort service. Some outlets claim Eva is Ukrainian. Dimitrelos does claim that Hunter searched for “Russian escort service,” though.

Update: Added the Bluewater Wellness Intramuscular Injection ad from October 2018.

Update: Added the observation about a newly created email from DDOSecrets.

Update: I was reminded of Bret Baier’s opinion in the same days when Leon Panetta was expressing his doubts about this story.

During a panel on his Thursday evening show, Baier addressed the Post‘s story and the decision by both Twitter and Facebook to limit sharing of the story on their respective platforms because of concerns about spreading misinformation. The move elicited fierce pushback from conservatives and sparked a vote on a Congressional subpoena of Twitter CEO Jack Dorsey.

“The Biden campaign says the meeting never happened, it wasn’t on the schedules, they say,” Baier noted. “And the email itself says ‘set up’ for a meeting” instead of discussing an actual meeting.

Baier then played an audio clip from a SiriusXM radio interview of Giuliani, where he appeared to alter the original details of who dropped off the laptop from which the emails in question were purportedly obtained. The computer store owner who gave a copy of the laptop’s hard drive to Giuliani was also heard explaining how he is legally blind and couldn’t for certain identify just who delivered the computer to him.

” Let’s say, just not sugarcoat it. The whole thing is sketchy,” Baier acknowledged. “You couldn’t write this script in 19 days from an election, but we are digging into where this computer is and the emails and the authenticity of it.”

Featured image courtesy of Thomas Fine.

*As I have noted in the past, Dimitrelos prohibited me from republishing his reports unless I indemnify him for the privacy violations involved. I have chosen instead — and am still attempting — to get permission from Hunter Biden’s representatives to reproduce redacted parts of this report that strongly back Hunter’s claim of being hacked.

Twenty-Five: The Trump Family Member and Other Attorney-Client Delusions

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On January 9, I did a post noting that at least 25 of the known witnesses or subjects of the January 6 investigation into Trump were attorneys.

In a filing yesterday, DOJ said the same thing: At least 25 witnesses, including one member of Trump’s family, withheld testimony or documents based on an attorney-client claim.

During the course of the Government’s investigation, at least 25 witnesses withheld information, communications, and documents based on assertions of the attorney-client privilege under circumstances where the privilege holder appears to be the defendant or his 2020 presidential campaign. These included co-conspirators, former campaign employees, the campaign itself, outside attorneys, a non-attorney intermediary, and even a family member of the defendant.

To be clear, we’re measuring two different things: for example, while the two Pats — Cipollone and Philbin — as well as Mike Pence’s counsel, Greg Jacob, withheld testimony in their first grand jury appearances, that was based at least partly on an Executive Privilege claim, one prosecutors ultimately overcame, not exclusively on their role as White House lawyers.

And I know I missed a bunch of people who invoked attorney-client privilege. For example, Bernie Kerik — who I didn’t count in my list — withheld documents until forced to share them in the Ruby Freeman lawsuit, based on a claim that his work as a researcher was attorney work product. The Georgia indictment alerted me that I had missed accused Trump co-conspirator Robert Cheeley — and there are probably attorneys in all the other swing states I missed too. I didn’t count the campaign itself. I sure as hell didn’t count any family member (I wonder if the big gap in the January 6 indictment where Ivanka should be is there based off a claim she was acting at the direction of Eric Herschmann, though Herschmann seems to have offered far more cooperation than Ivanka did).

However you count it, though, it’s a breathtaking number, one rarely taken into account by the TV lawyers wailing because it took so long to charge Trump.

And charge Trump alone.

That’s something I kept thinking about as I read this filing: Thus far, not even Trump’s alleged co-conspirators — all of whom might make an attorney-client claim (even Mike Roman might be that non-lawyer intermediary, though I think it more likely Boris Ephsteyn is CC6) have been charged.

The government’s argument itself makes a lot of sense. For example, it enumerates that Trump or his attorneys have claimed they’ll rely on an advice of counsel defense at least seven times.

1 Fox News, Aug. 1, 2023, at minute 3:03, available at https://www.foxnews.com/video/6332255292112.

2 CNN, Aug. 1, 2023, at minute 2:20, available at https://www.youtube.com/watch?v=GW7Bixvkpc0.

3 NPR All Things Considered, Aug. 2, 2023, available at https://www.npr.org/2023/08/02/1191627739/trump-charges-indictment-attorney-jan-6-probe.

4 Meet the Press (NBC), Aug. 6, 2023, available at https://www.nbcnews.com/meet-thepress/meet-press-august-6-2023-n1307001.

5 Face the Nation (CBS), Aug. 6, 2023, at minute 24:11, available at https://www.cbsnews.com/news/face-the-nation-full-transcript-2023-08-06/.

6 CNN, Aug. 6, 2023, at minute 7:58, available at https://www.cnn.com/videos/politics/2023/08/06/sotu-lauro-full.cnn.

7 Donald Trump interview with Tucker Carlson, Aug. 23, 2023, at minute 34:35, available at https://twitter.com/TuckerCarlson/status/1694513603251241143?lang=en.

The government lays out precedent stating that Trump would have to waive privilege over and share communications that support his advice-of-counsel defense, but also communications over which he and the lawyer are currently shielding behind a privilege claim that would undermine it.

In invoking the advice-of-counsel defense, the defendant waives attorney-client privilege on all communications concerning the defense. See White, 887 F.2d at 270; United States v. Crowder, 325 F. Supp. 3d 131, 137 (D.D.C. 2018). Accordingly, once the defense is invoked, the defendant must disclose to the Government (1) all “communications or evidence” the defendant intends to rely on to establish the defense and (2) any “otherwise-privileged communications” the defendant does “not intend to use at trial, but that are relevant to proving or undermining” it. Crowder, 325 F. Supp. 3d at 138 (emphasis in original). See United States v. Stewart Rhodes, 22- cr-15 (D.D.C.), ECF No. 318 at 2 (quoting Crowder); Dallman, 740 F. Supp. 2d at 814 (waiver is for “information defendant submitted to the attorney on which the attorney’s advice is based, the attorney’s advice relied on by the defendant, and any information that would undermine the defense”); United States v. Hatfield, 2010 WL 183522, at *13 (E.D.N.Y. Jan. 8, 2010) (“This disclosure should include not only those documents which support [defendants’] defense, but also all documents (including attorney-client and attorney work product documents) that might impeach or undermine such a defense.”); United States v. Scali, 2018 WL 461441, at *8 (S.D.N.Y. Jan. 18, 2018) (quoting Hatfield).

Given that Trump would have to identify exhibits on which he would rely for an advice of counsel defense by December 18, the government argues, he should have to also identify the specifics of any advice of counsel defense by that date as well.

Given the potential number of attorneys and breadth of advice involved, the defendant’s notice should describe with particularity the following: (1) the identity of each attorney who provided advice; (2) the specific advice given, including whether the advice was oral or written; (3) the date on which the advice was given; and (4) the information the defendant communicated or caused to be communicated to the attorney concerning the subject matter of the advice, including the date and manner of the communication.

It makes this argument while also noting something that doesn’t, per se, support its case: that DOJ has already told Trump what these 25 people — and it invokes John Eastman, the person most often mentioned in Trump’s public claims of a advice of counsel defense, by caption — have identified in privilege logs.

In addition to having publicly advanced the defense, the defendant knows what information the Government has—and does not have—that might support or undermine the defense. The Government produced in discovery the privilege logs for each witness who withheld material on the basis of a claim of privilege on behalf of the defendant or his campaign, and in some cases the defendant’s campaign was directly involved in discussions regarding privilege during the course of the investigation. In other instances, the Government produced court orders requiring the production of material claimed to be privileged. Compelling the defendant to provide notice, and thereby discovery, would be reciprocal of what the Government already has produced. For example, defense counsel publicly identified one attorney on whose advice the defense intends to rely at trial, and the Government has produced in discovery substantial evidence regarding that attorney and his advice, including relevant search warrant returns.8 Any material relevant to that attorney’s advice that remains shielded by the attorney-client privilege should be produced to the Government at the earliest date to avoid disruption of the trial schedule.

8 That same attorney asserted an attorney-client privilege with the defendant and his campaign to shield material from disclosure to Congress. See Eastman v. Thompson, Case No. 8:22-cv-00099 (C.D. Cal.), ECF No. 260 at 15 (“The evidence clearly supports an attorney-client relationship between President Trump, his campaign, and [plaintiff] during January 4-7, 2021.”). [my emphasis]

Whatever else this motion is — and on its face it makes a lot of sense — it would also provide a means for DOJ to sort through some of the privilege logs it is looking at, and at least in the case of Eastman (if Trump indeed invoked his counsel as a defense) to breach those privilege claims and even obtain communications it does not yet have. Particularly given Clarence Thomas’ recusal on Eastman’s recently rejected cert petition, Eastman might have unidentified communications of particular interest.

Advance notice would also force Trump to rule out relying on the advice of others, like Rudy or Sidney Powell, as a defense, something that might make charges against them more viable.

I don’t imagine that DOJ would add any of Trump’s co-conspirators to his indictment so long as Trump’s trial happened before the election. They could always charge others separately, but so long as Trump had a chance of returning to the presidency, the only reason to do so would be if there were a legitimate hope of flipping the person or if it would make Trump’s alleged crimes more damaging politically. Trump has pardoned his way out of problems in the past and DOJ has to assume he would again, given the opportunity.

But in addition to making a solid case that Judge Chutkan should make Trump declare his intentions in December, this filing also admits that attorney-client privilege claims continue to blind DOJ to some of the universe of related communications pertaining to January 6.

“POTUS is very emotional and in a bad place.” Donald Trump’s Classified Discovery

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As part of Trump’s attempt (with some, albeit thus far limited, success — Judge Chutkan already gave Trump a small extension, and Judge Cannon has halted CIPA deadlines) to stall both his federal prosecutions by complaining about the Classified Information Protection Act, both sides have submitted recent filings that provide some additional details about the classified discovery in his two cases.

Among other things, the filings seem to suggest that Donald Trump was caught storing other documents about US nuclear programs at his beach resort, in addition to the one charged as count 19 of his indictment.

January 6 Election Intelligence

In Trump’s January 6 prosecution, the government’s response to Trump’s bid to delay the CIPA process described the classified evidence Trump’s team had reveiwed in the case this way:

Defense counsel responded that they anticipated review the week of September 25, and later the date was finalized for September 26. Due to the classification levels of certain of the discovery material, the CISO conducted additional read-ins that morning for Mr. Blanche, the Required Attorneys, and the Required Paralegal, and the defense was provided the classified discovery around 10:35 a.m., except for one further controlled document that was provided around 2:30 p.m.

The classified discovery reviewed by the defense consisted of approximately 975 pages of material: (1) a 761-page document obtained from the Department of Defense, the majority of which is not classified;1 (2) an FBI-FD 302 of the classified portion of a witness interview for which the Government already provided a transcript of the unclassified portion, as well as attachments, totaling 52 pages; (3) a 12-page document currently undergoing classification review by the Department of Defense; (4) the 118-page classified transcript the Government described at the CIPA § 2 hearing on August 28; and (5) a further controlled document that is a classified version of a publicly-available document produced in unclassified discovery that contains the same conclusions.2

1 The Government did not include this document in its page estimate at the CIPA § 2 hearing, only later determining that in an abundance of caution the entire document should be produced in classified discovery, even though—as indicated by page and portion markings—the majority of it is not classified. In its cover letter accompanying the classified discovery production, the Government made clear its willingness to discuss producing the unclassified pages and portions in unclassified discovery.

2 See Bates SCO-03668433 through SCO-03668447 (produced to the defense in the first unclassified discovery production on August 11, 2023).

Trump’s reply appears to have described what two of these — item 1 and item 5 (and possibly also item 3, which may have been included as part of item 1) — were.

Item 5 consists of the classified version of the Intelligence Community’s Foreign Threats to the 2020 Election publicly released in March 2021.

The Special Counsel’s Office alleges that the Director of National Intelligence “disabused” President Trump “of the notion that the [USIC’s] findings regarding foreign interference would change the outcome of the election.” (Indictment ¶ 11(c)). The Office points out that these “findings” are set forth in a “publicly-available version of the same document that contains the same ultimate conclusions.” (Opp’n at 12). This is a reference to the unclassified version of the National Intelligence Council’s March 2021 Report titled “Foreign Threats to the 2020 US Federal Elections” (the “Report”).3

3 The unclassified Report is available at: https://www.dni.gov/files/ODNI/documents/assessments/ICA-declass-16MAR21.pdf

Trump is demanding that DOJ provide details of every actual compromise during the 2020 election — things like Iran’s effort to pose as Proud Boys to suppress Democratic votes — in order to support his claim that the classified evidence in this case is more central than it is.

Item 1 appears to include a bunch of materials that Mark Milley had preserved about the fragile state of the country and — even more so — Trump after the attack.

The Special Counsel’s Office has sufficient access to the files of the Department of Defense (“DOD”) to produce to President Trump two documents, totally [sic] approximately 773 pages, that the Office “obtained” from DOD. (Opp’n at 5). It appears, however, that there is a larger set of relevant DOD holdings, which the Office must review and make any necessary productions required by Rule 16, Brady, Giglio, and the Jencks Act.

In November 2021, General Mark Milley told the House’s January 6 Select Committee that “we have a boatload of documentary stuff . . . both classified and unclassified stuff. And I will make sure that you get whatever we have. And it’s a lot.” (Tr. 10).6 In response to a question about a particular document, General Milley volunteered that he had overclassified a large volume of relevant material:

I classified the document at the beginning of this process by telling my staff to gather up all the documents, freeze-frame everything, notes, everything and, you know, classify it. And we actually classified it at a pretty high level, and we put it on JWICS, the top secret stuff. It’s not that the substance is classified. It was I wanted to make sure that this stuff was only going to go people who appropriately needed to see it, like yourselves. We’ll take care of that. We can get this stuff properly processed and unclassified. (Tr. 169).

In addition to the above-referenced classified documents “obtained” from DOD, the Special Counsel’s Office has produced nearly a million pages of documents from the House Select Committee. But it is not clear that those materials include any of the classified documents referenced by General Milley during his testimony, or whether the Office has even reviewed those materials.

6 The transcript is available at: https://www.govinfo.gov/content/pkg/GPO-J6-TRANSCRIPTCTRL0000034620/pdf/GPO-J6-TRANSCRIPT-CTRL0000034620.pdf.

What Trump accuses Milley of overclassifying appears to have been, instead, classified to prevent detrimental things said about Trump — including by his Chief of Staff — from being shared publicly. As Milley described to the January 6 Committee. he made a point of preserving all of it because he understood the significance of January 6.

So what I saw unfold on the 6th was disturbing, to say the least, and I think it was an incredible event. And I want to make sure that whatever information I have and I can help you determine facts, atmospherics, opinions, whatever, determine lines of inquiry. In any manner, shape, or form that I or the Joint Staff can help, I want to make sure that we do that, because I think the role of the committee is critical to prevent this from ever happening again.

[snip]

We also have — and I want to make sure that you know that we have and we’ll provide it to you, the Joint Staff — we have a boatload of documentary stuff. I think we provided a bunch of emails, which is good. We have both classified and unclassified stuff. And I will make sure that you get whatever we have. And it’s a lot. We have it in binders.

Immediately following the 6th, I knew the significance, and I asked my staff, freeze all your records, collate them, get them collected up. I had one of the staff, a J7, you 10 know, package it up, inventory it, put it all in binders and 11 all that kind of stuff. So we have that, and you’re welcome to all of it, classified and unclassified. And I want to make sure that everything is properly done for the future. That’s very important to me.

The materials include — again, per Milley’s testimony — commentary from people like Mark Meadows and Christopher Miller about Trump’s state on January 7.

General Milley. So where was I? Oh. Anyway, so general themes: steadiness overseas, constantly watching Iran, North Korea, China, Russia, terrorists. Venezuela, by the way, was another one. So there’s a series of these potential overseas crises. In several of the calls — and my theme was I sounded like a broken record: Steady, breathe through your nose, we’re going to land the — we’re going to 4 land this thing, peaceful transfer of power. That was a constant message of mine. And both Pompeo and Meadows didn’t push back on that at all. It was “roger that” sort of thing.

So, now, there was a couple of calls where, you know, Meadows and/or Pompeo but more Meadows, you know, how is the President doing? Like, Pompeo might say, “How is the President doing,” and Meadows would say, “Well, he’s in a really dark place,” or “he’s” — you know, those kind of words. I’d have to go back to some notes to get the exact phrasing, but that happened a couple different times.

I’m looking for — on this timeline, like, here is one, for example, on the 7th of January, so this is the day after, right? “It’s just us now.” And I can’t remember if it was Pompeo or Meadows that said that, but I didn’t say it. “It’s just us now.” In other words, it’s just the three of us to land this thing. I’m, like, come on, man. This is — there’s millions of people here. But anyway. I’m not trying to be overly dramatic, but these are quotes. “POTUS is very emotional and in a bad place.” Meadows . So that – – that’s an example. Same day, different meeting with Acting SecDef Miller.” POTUS not in a good spot.” Whatever that means.

Ms. Cheney. Uh-huh.

General Milley. You know, these aren’t my words. These are other people’s words. Kellogg, same day, seventh phone call: “Ivanka was a star.” “She’s keeping her father calm.” “Everyone needs to keep a cool head.” So it’s the — you know, it’s comments. These are just phrases, but there’s–

Ms. Cheney. Yeah.

General Milley. there’s conversations like that, and, you know, for me, as the Chairman, I’m, like, hmmm. So all I’m trying to do is watch my piece of the pie. I’m not in charge of anything. I just give advice and just trying to keep it steady.

Ms. Cheney. I know we have to take a break, General Milley, and the camera is not working here, so I can’t see you guys, but are the notes that you’re reading from, are those notes that we have? Are they in the exhibits, or are those notes that we can get if we don’t?

General Milley. No. We can — I can provide them. I’ll swear to it, you know, that kind of thing if I need to do an affidavit on whatever you want.

[Redacted] And I think this is in a classified production.

General Milley. Those notes came from the timeline that I produced to the Joint Staff, essentially.

Ms. Cheney. Yeah.

General Milley. On this timeline, it’s actually classified, but, again, almost all of the substance is it not classified. The document I classified the document at the beginning of this process by telling my staff to gather up all the documents, freeze-frame everything, notes, everything and, you know, classify it. And we actually classified it at a pretty high level, and we put it on JWICS, the top secret stuff. It’s not that the substance is classified. It was I wanted to make sure that this stuff was only going to go people who appropriately needed to see it, like yourselves.

We’ll take care of that. We can get this stuff properly processed and unclassified so that you can have it —

[Redacted] That would be great.

Trump is demanding this stuff under Rule 16 (the defendant’s own statements), Brady (exculpatory evidence), Giglio (deal made with other witnesses), and Jencks Act (statements by potential government witnesses). Trump is asking for all memorializations that Milley or anyone else made of things Trump said — and he’s preparing to claim that that amounts to exculpatory evidence.

And both the review of this memorialization and the court filings happened after Trump threatened to execute Milley on September 22, Trump’s treatment of it — and his claim that Milley overclassified it — can’t be taken in isolation from it, especially given the inclusion of the Iran attack document, which Trump was showing off at Mar-a-Lago even before Milley’s January 6 testimony — in the superseding stolen documents indictment.

That is, having discovered that Milley preserved the crazy things Trump said and the crazy Trump’s most loyal aides said about Trump, Trump wants to make that a centerpiece of his graymail attempt, preparing a claim that the very act of memorializing all this amounts to disloyalty, all while arguing that he needs it to discredit Milley or Meadows or anyone else involved if they testify at trial.

Stolen Documents

In the stolen documents case, classified material is obviously more central to Trump’s alleged crimes and the sensitivity of the materials involved is much greater. Even though there have been some sound educated guesses as to what the charged documents include, it’ll be months before we get real detail at trial.

Nevertheless, the competing claims about classified discovery have provided some new details about the documents charged against Trump — specifically, regarding ten documents that, for two separate reasons, held up reviews by Trump’s lawyers. at the SCIFs in Florida being used for the case.

As Trump laid out in his reply to his bid to delay the trial, at first five, then another four of the documents charged against him were not placed in the SCIF in Miami Trump has been using, because they are so sensitive — though are available in a SCIF in DC. In addition, there was one document that only recently became available in that SCIF.

Nine of the documents charged in the 32 pending § 793(e) counts, as well as “several uncharged documents,” are not available to the defense in this District. (Opp’n at 6).4 The document relating to Count 19 was made available to President Trump for the first time late in the afternoon of October 3, only after counsel left the District following two days of review at the temporary Miami SCIF.

4 As we understand it, documents relating to Counts 6, 22, 26, and 30 have been relocated to the District of Columbia at the request of the documents’ “owners.” (See Opp’n at 6-7 n.4). The documents relating to Counts 5, 9, 17, 20, and 29 are not available to President Trump or counsel at any location.

The one document that only recently became available is the single charged document classified under the Atomic Energy Act — here, marked as FRD or “Formerly Restricted Document.”

  • Document 19: [S/FRD] Undated document concerning nuclear weaponry of the United States; seized in August 8, 2022 search.

As noted here, because it was classified under the Atomic Energy Act, Trump could not declassify it unilaterally, which is undoubtedly why it was charged.

As the government described in its response to this CIPA request on September 27, the presence of one particular charged document and several uncharged documents which required some specific clearance had meant Trump’s lawyers couldn’t get into the SCIF at all, until the Information Security Officer withdrew them, which she or he did on September 26.

The Government has recently been informed that multiple defense counsel for Trump now have the necessary read-ins to review all material in the Government’s September 13 production, with the exception of a single charged document and several uncharged documents requiring a particular clearance that defense counsel do not yet possess. The Government understands that the presence of these documents in the set of discovery available in the defense SCIF in Florida had prevented the defense from gaining access to a safe containing a subset of classified discovery when the defense reviewed the majority of the September 13 production during the week of September 18, 2023. On September 26, at the Government’s request, the CISO removed the documents requiring the particular clearance from the safe so that the remainder of the subset would be fully available to Trump’s counsel.

If, as seems likely, document 19 was the one had to be withdrawn until all lawyers got an additional clearance, it suggests the other uncharged documents were also classified under the AEA. If so, it would mean FBI discovered additional US nuclear documents, potentially included ones that remain restricted, found at Mar-a-Lago but have not been charged.

These are the five that were always given that special handling, treating them as too sensitive to be placed in the SCIF in Miami.

  • Document 5: [TS//[REDACTED]/[REDACTED]//ORCON/NOFORN] Document dated June 2020, concerning nuclear capabilities of a foreign country; seized in August 8, 2022 search.
  • Document 9: [TS//[REDACTED]/[REDACTED]//ORCON/NOFORN/FISA] Undated document concerning military attacks by a foreign country; seized in August 8, 2022 search.
  • Document 17: [TS//[REDACTED]/TK/ORCON/IMCON/NOFORN] Document dated January 2020 concerning military capabilities of a foreign country; seized in August 8, 2022 search.
  • Document 20: [TS//[REDACTED]//ORCON/NOFORN] Undated document concerning timeline and details of attack in a foreign country; seized in August 8, 2022 search.
  • Document 29: [TS//[REDACTED]//SI/TK//ORCON/NOFORN] Document dated October 18, 2019, concerning military capabilities of a foreign country.

And these are the four that were initially placed in the Miami SCIF, but later withdrawn after a request by the document originators.

  • Document 6: [TS//SPECIAL HANDLING] Document dated June 4, 2020, concerning White House intelligence briefing related to various foreign countries; seized in August 8, 2022 search.
  • Document 22: [TS//[REDACTED]//RSEN/ORCON//NOFORN] Document dated August 2019, concerning military activity of a foreign country; turned over on June 3, 2022.
  • Document 26: [TS//[REDACTED]//ORCON//NOFORN/FISA] Document dated November 7, 2019, concerning military activity of foreign countries and the United States; turned over on June 3, 2022.
  • Document 30: [TS//[REDACTED]//ORCON/NOFORN/FISA] Document dated October 15, 2019, concerning military activity in a foreign country; turned over on June 3, 2022.

Here’s how Jack Smith’s team described these documents.

As noted above, a small collection of highly sensitive and classified materials that Trump retained at the Mar-a-Lago Club are so sensitive that they require special measures (the “special measures documents”), including enhanced security protocols for their transport, review, discussion, and storage. The special measures documents constitute a tiny subset of the total array of classified documents involved, which is itself a small subset of the total discovery produced. From the outset of this case, the SCO and the CISO have been aware of some of the special measures documents, but only recently, the SCO and the CISO learned that others—still constituting a small fraction of the overall discovery—fall into that category as well.

[snip]

To be sure, the extreme sensitivity of the special measures documents that Trump illegally retained at Mar-a-Lago presents logistical issues unique to this case. But the defendants’ allegations that those logistical impediments are the fault of the SCO are wrong. The defendants’ claim that the SCO has failed “to timely remedy the situation,” ECF No. 167 at 2, or “to make very basic arrangements in this District,” id. at 4, proceeds from the false premise that the SCO controls the situation—it does not. Nonetheless, the SCO has also offered to—and did—make a facility available to the defense in Washington, D.C., that can accommodate the review and discussion of all the discovery in this case, including the special measures documents.

What’s interesting about this collection is how they compare and contrast with others of the 32 documents charged.

For example, these documents are not being treated with greater sensitivity because they were subject to Special Handling requirements likely related to contents of the Presidential Daily Briefs; several other charged documents (eg, 1, 2, and 4), in addition to document 6, were subject to Special Handling.

Matt Tait and Brian Greer had speculated that some of these — documents 26, 29, and 30 — might be part of a cluster of related documents, but others that similarly date to October and November 2019 are not being treated with this same special handling.

Most of these documents include special compartments (reflected by the [REDACTED] classification mark(s)), but document 6 does not. That said, all the documents with such redacted compartments are being treated with that special handling. So perhaps the most likely explanation is that document 6 reflects Trump getting briefed on something outside the scope of a formal document, which therefore didn’t have the appropriate compartment marks.

Whatever explains it, someone doesn’t trust these documents to be stored in a SCIF in Miami.

Elon Musk’s Machine for Fascism: A Tale of Three Elections

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Since the spring (when I first started writing this post), I’ve been trying to express what I think Elon Musk intended to do with his $44 billion purchase of Twitter, to turn it into a Machine for Fascism.

Ben Collins wrote a piece — which he has been working on even longer than I have on this post — that led me to return to it.

Collins returns to some texts sent to Elmo in April 2022, just before he bought Twitter, which referenced an unsigned post published at Revolver News laying out a plan for Twitter.

On the day that public records revealed that Elon Musk had become Twitter’s biggest shareholder, an unknown sender texted the billionaire and recommended an article imploring him to acquire the social network outright.

Musk’s purchase of Twitter, the 3,000-word anonymous article said, would amount to a “declaration of war against the Globalist American Empire.” The sender of the texts was offering Musk, the Tesla and SpaceX CEO, a playbook for the takeover and transformation of Twitter. As the anniversary of Musk’s purchase approaches, the identity of the sender remains unknown.

The text messages described a series of actions Musk should take after he gained full control of the social media platform: “Step 1: Blame the platform for its users; Step 2: Coordinated pressure campaign; Step 3: Exodus of the Bluechecks; Step 4: Deplatforming.”

The messages from the unknown sender were revealed in a court filing last year as evidence in a lawsuit Twitter brought against Musk after he tried to back out of buying it. The redacted documents were unearthed by The Chancery Daily, an independent legal publication covering proceedings before the Delaware Court of Chancery.

The wording of the texts matches the subtitles of the article, “The Battle of the Century: Here’s What Happens if Elon Musk Buys Twitter,” which had been published three days earlier on the right-wing website revolver.news.

Collins lays out that the post significantly predicted what has happened since, including an attack on the Anti-Defamation League.

The article on Beattie’s site begins with a baseless claim that censorship on Twitter cost President Donald Trump the 2020 election. “Free speech online is what enabled the Trump revolution in 2016,” the anonymous author wrote. “If the Internet had been as free in 2020 as it was four years before, Trump would have cruised to reelection.”

The author said that “Step 1” after a Musk takeover would be: “Blame the platform for its users.” He or she predicted that “Twitter would be blamed for every so-called act of ‘racism’ ‘sexism’ and ‘transphobia’ occurring on its platform.”

After Musk’s purchase of Twitter was finalized in October 2022, he allowed previously suspended accounts to return. Among them, he restored the account of Trump, whom Twitter had banned after the Jan. 6 Capitol insurrection, as well as the personal accounts of far-right Rep. Marjorie Taylor Greene, R-Ga., and the founder of a neo-Nazi website, Andrew Anglin.

The article predicted that “Step 2” would involve a “Coordinated pressure campaign” by the ADL and other nonprofit groups to get Musk to reinstate the banned accounts. “A vast constellation of activists and non-profits” will lurch into action to “put more and more pressure on the company to change its ways,” the article reads.

The next step, the revolver.news article predicted, would be the “Exodus of the bluechecks.” The term “bluechecks” refers to a former identity verification system on Twitter that confirmed the authenticity of the accounts of celebrities, public figures and journalists.

Musk experimented with and ultimately eliminated Twitter’s verification system of “bluechecks.” As the article predicted, the removal resulted in a public backlash and an exponential drop in advertisers and revenue. Other developments, including Musk’s drastically reducing the number of staffers who monitor tweets and a rise in hate speech, also contributed to the dynamic.

The article predicted that a final step, “Step 4,” would be the “deplatforming” of Twitter itself. He said a Musk-owned Twitter would face the same fate as Parler, a platform that presented itself as a “free speech” home for the right. After numerous calls for violence on Jan. 6 were posted on Parler, Google and Apple removed it from their app stores on the grounds that it had allowed too many posts that promoted violence, crime and misinformation.

Collins notes that the identity of the person who wrote the post on Revolver and sent the texts to Elmo has never been revealed. He seems to think it is Darren Beattie, the publisher of Revolver, whose white supremacist sympathies got him fired from Trump’s White House.

I’m not convinced the post was from Beattie. Others made a case that the person who texted Elmo was Stephen Miller (not least because there’s a redaction where his name might appear elsewhere in the court filing).

But I think Collins’ argument — that Elmo adopted a plan to use Twitter as a Machine for Fascism from the start, guided in part by that post, a post that has some tie to Russophile propagandist Beattie — persuasive.

Then again, I’ve already been thinking about the way that Elmo was trying to perfect a Machine for Fascism.

2016: Professionalizing Trolling

One thing that got me thinking about Elmo’s goals for Twitter came from reading the chatlogs from several Twitter listservs that far right trolls used to coordinate during the 2016 election, introduced as exhibits in Douglass Mackey’s trial for attempting to convince Hillary voters to text their votes rather than casting them at polling places.

The trolls believed, in real time, that their efforts were historic.

On the day Trump sealed his primary win in 2016, for example, Daily Stormer webmaster Andrew “Weev” Auernheimer boasted on a Fed Free Hate Chat that, “it’s fucking astonishing how much reach our little group here has between us, and it’ll solidify and grow after the general.” “This is where it all started,” Douglass Mackey replied, according to exhibits introduced at his trial. “We did it.”

After Trump’s November win became clear, Microchip — a key part of professionalizing this effort — declared, “We are making history,” before he immediately started pitching the idea of flipping a European election (as far right trolls attempted with Emmanuel Macron’s race in 2017) and winning the 2020 election.

By that point, the trolls had been working on–and fine tuning–this effort for at least a year.

Most chilling in the back-story presented in exhibits submitted at trial is the description of how Weev almost groomed Mackey, starting in 2015. “Thanks to weev I am inproving my rhetoric. People love it,” Mackey said in the Fed Free Hate Chat in November 2015. He boasted that his “exploding” twitter account was averaging 300,000 impressions every day, before he mused, “I just hope all this shitlording goes real life.” Two days later Weev admired that, “ricky’s audience expands rapidly, he’s now a leading polemicist” [Mackey did all this under the pseudonym Ricky Vaughn].

Weev and Mackey explained their ideological goals. “The goal is to give people simple lines they can share with family or around the water cooler,” Mackey described to Bidenshairplugs in September 2015. When Weev proposed in January 2016 that he and Mackey write a guide to trolling, he described the project as “ideological disruption” and “psychological loldongs terrorism.” The Daily Stormer webmaster boasted, “i am absolutely sure we can get anyone to do or believe anything as long as we come up with the right rhetorical formula and have people actually try to apply it consistently.” And so they explained the objectives to others. “[R]eally good memes go viral,” Mackey explained to AmericanMex067 on May 10, 2016. “really really good memes become embedded in our consciousness.”

One method they used was “highjacking hashtags,” either infecting the pro-Hillary hashtags pushed by Hillary or filling anti-Trump hashtags with positive content.

Another was repetition. “repitition is key. \’Crooked Hillary created ISIS with Obama\’ repeat it again and again.” Trump hasn’t been repeating the same stupid attacks for 8 years because he’s uncreative or stupid. He’s doing it to intentionally troll America’s psyche.

A third was playing to the irrationality of people. HalleyBorderCol as she pitched the text to vote meme: people aren’t rational. a significant proportion of people who hear the rumour will NOT hear that the rumour has been debunked.”

One explicit goal was to use virality to get the mainstream press to pick up far right lines. Anthime “Baked Alaska” Gionet described that they needed some tabloid to pick up their false claims about celebrities supporting Trump. “We gotta orchestrate it so good that some shitty tabloid even picks it up.” As they were trying to get the Podesta emails to trend in October 2016, P0TUSTrump argued, “we need CNN wnd [sic] liberal news forced to cover it.”

Microchip testified to the methodology at trial.

Q What does it mean to hijack a hashtag?

A So I guess I can give you an example, is the easiest way. It’s like if you have a hashtag — back then like a Hillary Clinton hashtag called “I’m with her,” then what that would be is I would say, okay, let’s take “I’m with her” hashtag, because that’s what Hillary Clinton voters are going to be looking at, because that’s their hashtag, and then I would tweet out thousands of — of tweets of — well, for example, old videos of Hillary Clinton or Bill Clinton talking about, you know, immigration policy for back in the ’90s where they said: You know, we should shut down borders, kick out people from the USA. Anything that was disparaging of Hillary Clinton would be injected into that — into those tweets with that hashtag, so that would overflow to her voters and they’d see it and be shocked by it.

Q Is it safe to say that most of your followers were Trump supporters?

A Oh, yeah.

Q And so by hijacking, in the example you just gave a Hillary Clinton hashtag, “I am with her,” you’re getting your message out of your silo and in front of other people who might not ordinarily see it if you just posted the tweet?

A Yeah, I wanted to infect everything.

Q Was there a certain time of day that you believed tweeting would have a maximum impact?

A Yeah, so I had figured out that early morning eastern time that — well, it first started out with New York Times. I would see that they would — they would publish stories in the morning, so the people could catch that when they woke up. And some of the stories were absolutely ridiculous — sorry. Some of the stories were absolutely ridiculous that they would post that, you know, had really no relevance to what was going on in the world, but they would still end up on trending hashtags, right? And so, I thought about that and thought, you know, is there a way that I could do the same thing.

And so what I would do is before the New York Times would publish their — their information, I would spend the very early morning or evening seeding information into random hashtags, or a hashtag we created, so that by the time the morning came around, we had already had thousands of tweets in that tag that people would see because there wasn’t much activity on Twitter, so you could easily create a hashtag that would end up on the trending list by the time morning came around.

In the 2016 election, this methodology served to take memes directly from the Daily Stormer, launder them through 4Chan, then use Twitter to inject them into mainstream discourse. That’s the methodology the far right still uses, including Trump when he baits people to make his Truth Social tweets go viral on Twitter. Use Twitter to break out of far right silos and into those of Hillary supporters to recodify meaning, and ensure it all goes viral so lazy reporters at traditional outlets republish it for free, using such tweets to supplant rational discussion of other news.

And as Microchip testified, in trolling meaning and rational arguments don’t matter. Controversy does.

Q What was it about Podesta’s emails that you were sharing?

A That’s a good question.

So Podesta ‘s emails didn’t, in my opinion, have anything in particularly weird or strange about them, but my talent is to make things weird and strange so that there is a controversy. So I would take those emails and spin off other stories about the emails for the sole purpose of disparaging Hillary Clinton.

T[y]ing John Podesta to those emails, coming up with stories that had nothing to do with the emails but, you know, maybe had something to do with conspiracies of the day, and then his reputation would bleed over to Hillary Clinton, and then, because he was working for a campaign, Hillary Clinton would be disparaged.

Q So you’re essentially creating the appearance of some controversy or conspiracy associated with his emails and sharing that far and wide.

A That’s right.

Q Did you believe that what you were tweeting was true?

A No, and I didn’t care.

Q Did you fact-check any of it?

A No.

Q And so what was the ultimate purpose of that? What was your goal?

A To cause as much chaos as possible so that that would bleed over to Hillary Clinton and diminish her chance of winning.

The far right is still using this methodology to make the corrupt but not exceptional behavior of Hunter Biden into a topic that convinces half the electorate that Joe Biden is as corrupt as Donald Trump. They’ve used this methodology to get the vast majority of media outlets to chase Hunter Biden’s dick pics like six year old chasing soccer balls.

Back in 2016, the trolls had a good sense of how their efforts helped to support Trump’s electoral goals. In April 2016, for example, Baked Alaska pitched peeling off about a quarter of Bernie Sanders’ votes. “Imagine if we got even 25% of bernie supporters to ragevote for trump.” On November 2, 2016, the same day he posted the meme that got him prosecuted, Mackey explained that the key to winning PA was “to drive up turnout with non-college whites, and limit black turnout.” One user, 1080p, seemed to have special skills — if not sources — to adopt the look and feel of both campaigns.

And this effort worked in close parallel to Trump’s efforts. As early as April, Baked Alaska invited Mackey to join a campaign slack “for more coordinated efforts.”

And there are several participants in the troll chatrooms whose actions or efforts to shield their true identities suggest they may be closely coordinating efforts as well.

Even in the unfettered world of 2016, Twitter’s anemic efforts to limit the trolls’ manipulation of Twitter was a common point of discussion.

For example, as the trolls were trying to get Podesta’s emails trending, HalleyBorderCol complained, “we haven’t been able to get anything to trend for aaaages … unless they changed their algorithms, they must be watching what we’re doing.” Later in October as they were launching two of their last meme campaigns, ImmigrationX complained,”I see Jack in full force today suppressing hashtags.”

Both Mackey and Microchip were banned multiple times. “Microchip get banned again??” was a common refrain. “glad to be back,” Microchip claimed on September 24. “they just banned me two times in 3 mins.” He warned others to follow-back slowly to evade an auto-detect for newly created accounts. “some folks are being banned right now, apparently, so if I’m banned for some reason, I’ll be right back,” Microchip warned on October 30. “Be good till nov 9th brother! We need your ass!” another troll said on the day Mackey was banned; at the time Microchip was trending better than Trump himself. Mackey’s third ban in this period, in response to the tweets a jury has now deemed to be criminal, came with involvement from Jack Dorsey personally.

Both testified at trial about the techniques they used to thwart the bans (including using a gifted account to return quickly, in Mackey’s case). Microchip built banning, and bot-based restoration and magnification, into his automation process.

2020: Insurrection

The far right trolls succeeded in helping Donald Trump hijack American consciousness in 2016 to get elected.

By the time the trolls — some of whom moved into far more powerful positions with Trump’s election — tried again in 2020, the social media companies had put far more controls on the kinds of viral disinformation that trolls had used with such success in 2016.

As Yoel Roth explained during this year’s Twitter hearing, the social media companies expanded their moderation efforts with the support of a bipartisan consensus formulated in response to Russia’s (far less successful than the far right troll efforts) 2016 interference efforts.

Rep. Shontel Brown

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

Yoel Roth:

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

But in advance of the election, Trump ratcheted up his attacks on moderation, personalizing that with a bullying attack on Roth himself.

In the spring of 2020, after years of internal debate, my team decided that Twitter should apply a label to a tweet of then-President Trump’s that asserted that voting by mail is fraud-prone, and that the coming election would be “rigged.” “Get the facts about mail-in ballots,” the label read.

On May 27, the morning after the label went up, the White House senior adviser Kellyanne Conway publicly identified me as the head of Twitter’s site integrity team. The next day, The New York Post put several of my tweets making fun of Mr. Trump and other Republicans on its cover. I had posted them years earlier, when I was a student and had a tiny social media following of mostly my friends and family. Now, they were front-page news. Later that day, Mr. Trump tweeted that I was a “hater.”

Legions of Twitter users, most of whom days prior had no idea who I was or what my job entailed, began a campaign of online harassment that lasted months, calling for me to be fired, jailed or killed. The volume of Twitter notifications crashed my phone. Friends I hadn’t heard from in years expressed their concern. On Instagram, old vacation photos and pictures of my dog were flooded with threatening comments and insults.

In reality, though, efforts to moderate disinformation did little to diminish the import of social media to right wing political efforts. During the election, the most effective trolls were mostly overt top associates of Donald Trump, or Trump himself, as this table I keep posting shows.

The table, which appears in a Stanford University’s Election Integrity Project report on the election, does not reflect use of disinformation (as the far right complains when they see it). Rather, it measures efficacy. Of a set of false narratives — some good faith mistakes, some intentional propaganda — that circulated on Twitter in advance of the election, this table shows who disseminated the false narratives that achieved the most reach. The false narratives disseminated most broadly were disseminated by Donald Trump, his two adult sons, Tom Fitton, Jack Posobiec, Gateway Pundit, Charlie Kirk, and Catturd. The least recognized name on this list, Mike Roman, was among the 19 people indicted by Fani Willis for efforts to steal the election in Georgia. Trump’s Acting Director of National Intelligence, Ric Grenell, even got into the game (which is unsurprising, given that before he was made Ambassador to Germany, he was mostly just a far right troll).

This is a measure of how central social media was to Trump’s efforts to discredit, both before and after the election, the well-run election that he lost.

The far right also likes to claim (nonsensically, on its face, because these numbers reflect measurements taken after the election) that these narratives were censored. At most, and in significant part because Twitter refused to apply its own rules about disinformation to high profile accounts including but not limited to Trump, this disinformation was labeled.

As the Draft January 6 Social Media Report described, they had some success at labeling disinformation, albeit with millions of impressions before Twitter could slap on a label.

Twitter’s response to violent rhetoric is the most relevant affect it had on January 6th, but the company’s larger civic integrity efforts relied heavily on labeling and downranking. In June of 2019, Twitter announced that it would label tweets from world leaders that violate its policies “but are in the public interest” with an “interstitial,” or a click-through warning users must bypass before viewing the content.71 In October of 2020, the company introduced an emergency form of this interstitial for high-profile tweets in violation of its civic integrity policy.” According to information provided by Twitter, the company applied this interstitial to 456 tweets between October 27″ and November 7″, when the election was called for then-President-Elect Joe Biden. After the election was called, Twitter stopped applying this interstitial.”* From the information provided by Twitter, it appears these interstitials had a measurable effect on exposure to harmful content—but that effect ceased in the crucial weeks before January 6th.

The speed with which Twitter labels a tweet obviously impacts how many users see the unlabeled (mis)information and how many see the label. For PIIs applied to high-profile violations of the civic integrity policy, about 45% of the 456 labeled tweets were treated within an hour of publication, and half the impressions on those tweets occurred after Twitter applied the interstitial. This number rose to more than eighty percent during election week, when staffing resources for civic issues were at their highest; after the election, staff were reassigned to broader enforcement work.” In answers to Select Committee questions during a briefing on the company’s civic integrity policy, Twitter staff estimates that PIIs prevented more than 304 million impressions on violative content. But at an 80% success rate, this still leaves millions of impressions.

But this labeling effort stopped after the election.

According to unreliable testimony from Brandon Straka the Stop the Steal effort started on Twitter. According to equally unreliable testimony from Ali Alexander, he primarily used Twitter to publicize and fundraise for the effort.

It was, per the Election Integrity Project, the second most successful disinformation after the Dominion propaganda.

And the January 6 Social Media Report describes that STS grew organically on Facebook after being launched on Twitter, with Facebook playing a losing game of whack-a-mole against new STS groups.

But as Alexander described, after Trump started promoting the effort on December 19, the role he would place became much easier.

Twitter wasn’t the only thing that brought a mob of people to DC and inspired many to attack the Capitol. There were right wing social media sites that may have been more important for organizing. But Twitter was an irreplaceable part of what happened.

The lesson of the 2020 election and January 6, if you care about democracy, is that Twitter and other social media companies never did enough moderation of violent speech and disinformation, and halted much of what they were doing after the election, laying the ground work for January 6.

The lesson of the 2020 election for trolls is that inadequate efforts to moderate disinformation during the election — including the Hunter Biden “laptop” operation — prevented Trump from pulling off a repeat of 2016. The lesson of January 6, for far right trolls, is that unfettered exploitation of social media might allow them to pull off a violent coup.

That’s the critical background leading up to Elmo’s purchase of Twitter.

2024: Boosting Nazis

The first thing Elmo did after purchasing Twitter was to let the far right back on.

More recently, he has started paying them money that ads don’t cover to subsidize their propaganda.

The second thing he did, with the Twitter Files, was to sow false claims about the effect and value of the moderation put into place in the wake of 2016 — an effort Republicans in Congress subsequently joined. The third thing Elmo did was to ratchet up the cost for the API, thereby making visibility into how Twitter works asymmetric, available to rich corporations and (reportedly) his Saudi investors, but newly unavailable to academic researchers working transparently. He has also reversed throttling for state-owned media, resulting in an immediate increase in propaganda.

He has done that while making it easier for authoritarian countries to take down content.

Elmo attempted, unsuccessfully, to monetize the site in ways that would insulate it from concerns about far right views or violence.

For months, Elmo, his favored trolls, and Republicans in Congress have demonized the work of NGOs that make the exploitation of Twitter by the far right visible. More recently, Elmo has started suing them, raising the cost of tracking fascism on Twitter yet more.

Roth recently wrote a NYT column that, in addition to describing the serial, dangerous bullying — first from Trump, then from Elmo — that this pressure campaign includes, laid out the stakes.

Bit by bit, hearing by hearing, these campaigns are systematically eroding hard-won improvements in the safety and integrity of online platforms — with the individuals doing this work bearing the most direct costs.

Tech platforms are retreating from their efforts to protect election security and slow the spread of online disinformation. Amid a broader climate of belt-tightening, companies have pulled back especially hard on their trust and safety efforts. As they face mounting pressure from a hostile Congress, these choices are as rational as they are dangerous.

In 2016, far right trolls helped to give Donald Trump the presidency. In 2020, their efforts to do again were thwarted — barely — by attempts to limit the impact of disinformation and violence.

But in advance of 2024, Elmo has reversed all that. Xitter has preferentially valued far right speech, starting with Elmo’s increasingly radicalized rants. More importantly, Xitter has preferentially valued speech that totally undercuts rational thought.

Elmo has made Xitter a Machine for irrational far right hate speech.

The one thing that may save us is that this Machine for Fascism has destroyed Xitter’s core value to aspiring fascists: it has destroyed Xitter’s role as a public square, from which normal people might find valuable news. In the process, Elmo has destroyed Twitter’s key role in bridging from the far right to mainstream readers.

But it’s not for lack of trying to make Xitter a Machine for Fascism.

The Timeline of the Hunter Biden Investigation Doesn’t Support Attacks on Lesley Wolf

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Self-imagined IRS whistleblowers, Gary Shapley and Joseph Ziegler, continue to engage in an information campaign that not only hasn’t provided real evidence for impeachment, but also must be creating real difficulties for David Weiss as he attempts to charge the tax case against Hunter Biden.

The House Ways and Means Committee released a slew of documents provided by the IRS Agents the other day in advance of Thursday’s Impeachment Clown Show. Below, I’ve laid out just the documents pertaining to the investigation (that is, the purported topic of their whistleblower complaint), along with explanations of what the documents show. There are a bunch of other investigative documents (Shapley appears to have let Ziegler assume most of the legal risk of releasing the bulk of the new IRS and grand jury documents), some of which reflect a real sloppiness about parts of the investigation, which would pose still more problems charging this case.

I also plan to write a follow-up post laying out Gary Shapley’s actions in advance of the October 7, 2022 meeting. They show that the items he claimed presented a new “red line” for him in that meeting had instead been raised with him months earlier. He came into the meeting with an agenda — notably, that David Weiss should ask to be appointed Special Counsel (as opposed to Special Attorney) — and raised non-sequiturs given the posture of the case at the time.

As to some other key claims the IRS Agents have made, especially against Lesley Wolf, the record provides countervailing evidence on those too.

As noted, for example, the decision not to take overt steps in 2020 came directly from Donald Trump’s Deputy Attorney General’s office, from someone — Richard Donoghue — who knew first-hand about Russian efforts to tamper in the election by focusing on Hunter Biden. The IRS Agents and Republican Members of Congress have blamed Wolf for that.

One key complaint is that Gary Shapley wasn’t permitted to surprise Hunter Biden during the day of action on December 8, 2020. But as Wolf represented it in a call Ziegler memorialized on December 11, the norm would have been to work through Hunter’s lawyers for an interview. Her support of going with only a heads up to the Secret Service was a deviation from that norm, she claimed. There’s no support in these documents for Shapley’s claim (and Ziegler’s hearsay claim) that the Transition Team got a heads up from DOJ, so if Shapley had a credible source for it, it wasn’t documented notice.

Another complaint — one Republicans in Congress can’t let go — was that Wolf used a subpoena to get the contents of a storage facility Hunter had rather than a search warrant. But a month earlier than that, the plan wasn’t to get a warrant, it was to do a consent search. When Ziegler pitched her on a search warrant after the Rob Walker interview, he wanted to do the search immediately, within a week, in spite of what she represented would be the onerous approval process to get a warrant. According to what Ziegler records Wolf saying, all the lawyers involved in this decision agreed with her (not surprisingly, given that a taint review after going overt would involve the same level of defense attorney involvement as a subpoena would). When the IRS escalated this issue on December 14, they still didn’t know how a taint review would work in the Fourth Circuit, meaning they had not yet tested Wolf’s claims.

Importantly, the reason Ziegler thought it so important to do a search of the storage facility rather than serve a subpoena is that he wanted to find proof of foreign bank accounts, something for which Wolf claims there was no evidence.

Ziegler brought up the potential for foreign accounts and the records that he had seen thus far that indicate there are foreign accounts involved in this case. Wolf said that there is no indication what‐so‐ever that the Subject has foreign accounts and that any records related to that would be turned over [pursuant to subpoena].

Even in the most recent Republican documents, reflecting what Ziegler and Shapley turned over, I’m aware of no such evidence. The foreign payments Republicans claim are so suspect went right through corporations established in Delaware. Many of the payments appear to have gone through the same Wells Fargo accounts on which Ziegler predicated this investigation five years ago. And the IRS appears to have checked (one, two) with the most likely havens — Hong Kong and the Cayman Islands — about whether there were foreign accounts. I haven’t read all the investigative documents or the tax returns and investigators may find something else, but if this is correct, then it’s one hell of a money laundering claim these guys are chasing, consisting of payments through corporations headquartered right in Delaware and payments through Hunter’s main bank account.

It was already clear from Ziegler’s testimony that his complaints about delays in interviews in 2021 didn’t account for Wolf’s efforts to prioritize more important investigative steps, such as getting approval for a subpoena for Hunter’s attorney, George Mesires, rather than focusing on interviews with sex workers. The interview with Mesires took another year to schedule. But one set of emails from the time show it was Ziegler’s IRS supervisor, and not Lesley Wolf, that pushed back on his plans for interviews; the supervisor suggested he bring in “collaterals” to do some of the investigative work rather than do it all himself.

The IRS Agents and Republican Members of Congress similarly keep complaining that David Weiss let the statute of limitations expire on the 2014 and 2015 charges most closely focused on Burisma. There was already evidence (most especially in the hand-written notes that Shapley only belatedly shared) that it wasn’t so much that Weiss “let” SOLs expire, but that he made a prosecutorial decision — one Shapley refused to abide by — not to charge those years. Lesley Wolf first started raising questions about the sufficiency of the evidence in May 2021. This new trove of documents show that Shapley had been informed that DE USAO was disinclined to charge those years more than two months before October 2022, and again in August 2022. There is a good deal of evidence that Shapley’s manufactured panic about “letting” SOLs expire instead is an expression of disagreement with a prosecutorial decision.

Perhaps worst of all, the depiction the IRS Agents have made of Lesley Wolf does not reflect what appears in these documents, which show her to be more supportive of them than they claimed. On September 21, 2020, Wolf followed up immediately when the FBI showed reluctance to pursue parts of the investigation. In October 2020, she was supportive of the IRS’ wishes to do the Day of Action interviews sooner rather than later. In December 2021, she made a point of commending all the work Ziegler had done on the case. In June 2022, David Weiss recognized Ziegler’s work. In August 2022, Wolf noted that Ziegler was  busy dealing with a family issue and empathized, “know I am thinking of you and sending good thoughts.”

The one thing Wolf absolutely did push back on was the IRS Agents’ efforts to conduct a campaign finance investigation of the funds Kevin Morris provided to Hunter to pay off his taxes. At one point, her request that they prioritize the 2014 tax case first (which she said hadn’t been proven yet) was depicted as obstruction. At another — in Shapley notes that again appear to conflict with what he was writing in the official record — she provided several good legal reasons not to pursue the case, including that any “donation” from Morris to Joe Biden via Hunter was even more attenuated than the John Edwards case that failed. By recording and publicly releasing Wolf noting that the law was not clear on this issue, Shapley will make it almost impossible to charge, because anyone charged would simply point out that even DOJ agreed it wasn’t a clear campaign finance donation. And what the IRS Agents otherwise portray as Wolf’s disinterest in involving Public Integrity (PIN) because they would take authority away from her was (here and elsewhere) instead described as PIN requiring another layer of approvals, precisely the thing that IRS Agents were complaining about elsewhere.

The IRS Agents’ recriminations of Lesley Wolf have gotten her targeted with serious threats. And yet, their own record doesn’t substantiate the claims they have made against her.

Update: Corrected which countries IRS reached out to: the Caymans and Hong Kong, not Cyprus.

Timeline

September 21, 2018: Suspicious Activity Report from Wells Fargo.

October 31, 2018: Primary investigation initiated into other entity.

November 1-2, 2018: Request of support for SAR, only other agency investigating was DA office.

December 10, 2018: Primary investigation initiated into Hunter Biden.

January 18, 2019: Update from Wells Fargo on SAR.

Around February 2019: SSA informs Ziegler that DE USAO looking into SAR.

March 28-29, 2019 Exhibit 400: April 26, 2019, FBI FD 302, re: March 28, 2019, Interview with Gal Luft. It appears likely there were two 302s of these interviews (possibly three) because Luft’s alleged lies don’t appear in unredacted form in this one.

April 12, 2019: Package submitted to DOJ-Tax

April 15, 2019 Exhibit 206: April 15, 2019, Email from Joseph Ziegler to Jessica Moran, Subject: Approx. Timeline. This shows the above timeline, about which Ziegler was not clear in his testimony.

April 29, 2019 Exhibit 207: April 29, 2019, Email from Matthew Kutz to Kelly Jackson, cc’ing Joseph Ziegler and Christopher Wajda, Subject: Robert Doe – FYI Venue issue. Kutz is the person to whom Ziegler attributed his understanding that Barr had assigned this to DE USAO himself, before backing off that claim. Kutz is also the person who was documenting 6A and inappropriate influence on the investigation. Ziegler provides none of that.

August 5-7, 2020 Exhibit 202: August 5-7, 2020, Emails Between Joshua Wilson, Lesley Wolf, Carly Hudson, cc’ing Susan Roepcke, Michelle Hoffman, Joseph Ziegler, and Joseph Gordon, Subject: BS SW Draft. This was a warrant for BlueStar emails. AUSA Wolf objected not just to the mention of Joe Biden in the warrant (which is the only thing Ziegler leaves unredacted), but also to a great deal of stuff that was outside scope of the warrant. The SDNY FARA investigation was active in this period, which may be why other stuff was included, but in short order, even the IRS seemed to concede the SDNY FARA investigation into CEFC (the one that would rely on Gal Luft’s interview) was not viable.

Exhibit 203: Draft of B[lue]S[star email] Warrant.

September 3-4, 2020 Attachment 2: September 3-4, 2023, Emails Between Joseph Ziegler, Lesley Wolf, cc’ing Carly Hudson, Jack Morgan, Mark Daly, Joshua Wilson, Susan Roepcke, Alyssa Ruisard, Antonino Lo Piccolo, Christine Puglisi, Stefania Roca, Michael Dzielak, Gary Shapley, and Joseph Gordon, Subject: Today’s Agenda. This is an incredibly helpful list of where key legal process stood:

  • 4 iCloud backups (Ziegler asked whether location data was necessary, which he and Shapley suggested was mandatory before)
  • Relevancy review of iPhone Backup (which tells you they were still scoping the phone when they got the iCloud warrants)
  • Search warrant for BlueStar (about which investigators disagreed in August)
  • Supplemental email search warrant (unclear on which account)
  • DropBox search warrant (which wouldn’t be served for some time, but which seems to have been an attempt to get emails they knew of but didn’t have)
  • Discussion of 2703-D orders (metadata) for two accounts belonging to Vadym Pozharskyi and one to Devon Archer; elsewhere Ziegler relies on the “laptop” for emails involving the two

The agenda also notes investigative developments involving SDNY (the FARA investigation), Pittsburgh (the FD-1023), and Comerica.

September 3-4, 2020: Memo of Meeting. At this meeting, there was a discussion of keeping Hunter Biden’s name off overt requests, to which Ziegler objected (as if he wanted it to be discovered). There’s a discussion of whether the investigation would continue or not after the election, which Wolf said it would. Wolf attributed sensitivities to Richard Donoghue. Note: Shapley doesn’t say who was involved in the follow-up call on September 4.

September 21, 2020 Attachment 3: September 21, 2020, IRS CI Memorandum of Conversation Between Gary Shapley and Mark Daly, Authored by Gary Shapley. This memorializes a meeting earlier that day in which Joe Gordon expressed uncertainty among FBI management about how many interviews they would participate in after the election. Lesley Wolf pushed back hard on this. This memo reflects double hearsay (Wolf to Mark Daly to Shapley) blaming Special Agent Josh Wilson for the reluctance on investigating Hunter, because he had just moved back to Wilmington with his family. Shapley also memorializes a call to his ASAC about the details. This is another instance where Wolf was pushing the investigation hard.

October 19, 2020 Attachment 5: October 19, 2020, Email from Gary Shapley to Lesley Wolf, Subject: Computer. This is an email Shapley read, in part, in his testimony, regarding IRS’ need to know what was going on with the laptop. Ironically, he notes that there may be specific disclosure limitations tied to the IRS warrant, a concern with which he has since dispensed.

October 21, 2020 Attachment 4: October 2, 2020, Emails Between Lesley Wolf, Joseph Ziegler, Gary Shapley, and George Murphy, Subject: Dates. This reflects ongoing discussion about when to do the day of action, in an attempt to avoid interviewing Hunter in Delaware, as opposed to LA. Lesley Wolf was again supportive of Shapley’s goals to do the interviews sooner rather than later.

October 21, 2020 Exhibit 210: October 21, 2020, Emails Between Jack Morgan, Lesley Wolf, cc’ing Mark Daly and Carly Hudson, Subject: Mann Act. Jack Morgan emails Lesley Wolf regarding nine communications, two with traffickers, that he says may support Mann Act exposure. In only two cases was the travel confirmed. There are no dates in this list. Three instances include travel to Massachusetts (and so might coincide with the apparent hijacking of Hunter’s digital identity while he was in Ketamine treatment).

October 22, 2020: Notes on laptop. As noted, Shapley wildly misrepresented what the notes on the laptop actually say. They show that 10 months after accessing the laptop, the FBI still hadn’t done basic things to validate the content on the laptop had not been tampered.

October 22, 2020 Attachment 6: October 22, 2020, IRS CI Memorandum of Conversation between Prosecution Team, Authored by Gary Shapley. Shapley records Wolf as saying that there would not be a warrant on the DE residence. He does not record why. He also records the briefing on the Pittsburgh lead, ordered up by PDAG (Donoghue). This meeting happened an hour after the laptop meeting, but Shapley treats it as a separate meeting (and doesn’t say who attended).

October 23, 2020 Exhibit 400A: Tony Bobulinksi FBI FD-302 Interview Memorandum. This interview happened on October 23, 2020; Bobulinski went straight from the White House to self-report at the FBI. He repeatedly refused to let the FBI image his phones. It certainly doesn’t help Bobulinski’s credibility as a witness.

October 23, 2020 Exhibit 400B: Attachment Tony Bobulinksi FBI FD-302 Interview Memorandum.

November 2-9, 2020 Attachment 7: November 8-9, 2020, Emails Between James Robnett and Kelly Jackson, cc’ing Michael DePalma, George Murphy, and Gary Shapley, Subject: 1 page brief needed. The day after networks called the election for Joe Biden, the Deputy Chief of IRS-CI ordered the team to put together a one-page summary of the Hunter Biden investigation, to be delivered to him by Tuesday, November 10.

November 9, 2020 Attachment 8: November 9, 2020, Email from Kelly Jackson to Gary Shapley, cc’ing George Murphy, Subject: Recipient of the 1 pager. Effectively, the IRS team checked how far this would circulate before drafting.

~November 9, 2020 Attachment 9: Sportsman Investigation, IRS CI One-Pager. This appears to be a draft, not the final, as there are inline questions and answers. This provides a good summary of where the investigation was, notes that the FARA investigation pertained to CEFC (and that investigators planned no overt steps). It also says that the plan was to do a consent search of the storage facility (and a residence, though it’s not clear which one), which puts the later dispute in context.

December 8, 2020 Exhibit 401: December 8, 2020, Transcribed Interview of John Robinson Walker.

December 8-9, 2020 Exhibit 204: December 8-9, 2020, Emails Between Joseph Ziegler, Lesley Wolf, Mark Daly, Carly Hudson, Jack Morgan, cc’ing Christine Puglisi and Gary Shapley, Subject: Storage Location Warrant. The discussion returns to a warrant for the storage facility outside of DC (in VA). Ziegler says he wants to execute it the following week. Wolf tries to explain that there will be too many approvals required and heavy filter requirements because the facility is in the Fourth Circuit.

December 10, 2020 Attachment 10: IRS CI Monthly Significant Case Report, Subject Name: Robert Hunter Biden, December 2020. This periodic report (Shapley only provided two, raising questions about whether there were others) includes the most substantive description of how the investigation was predicated off sex workers. Shapley bitches about Wolf forgoing the approvals and instead applying the subpoena to the storage facility (without noting that the initial plan was to do a consent search). He says that the only viable charges at that point were tax charges (meaning the SDNY FARA charges didn’t flesh out). This report also notes the election meddling allegations. Shapley also bitches that prosecutors aren’t responding to Congressional inquiries, a totally inappropriate stance, one he would repeat in a later report. He blames the December 2020 leak on DOJ, with no explanation. Unclear whether this really is dated December 10, before the December 11 call with Wolf.

December 11, 2020 Exhibit 205: Joseph Ziegler’s Notes re: Phone Call with Lesley Wolf About the Storage Unit Warrant. The notes of this call actually debunks several things Ziegler has claimed. Wolf notes that the normal way to interview Hunter would be to call his lawyers, but she worked hard to go through just Secret Service. She also notes that all lawyers involved agreed subpoenaing for the documents was the appropriate thing to do.

December 14, 2020 Attachment 11: December 14, 2020, Emails Between Kelly Jackson, George Murphy, and Gary Shapley, Subject: SM – call with DFO today. This escalated matters on the facility to Deputy Commissioner. At that point, one of the IRS people didn’t even knew how a taint would work after a search.

December 15, 2020 Attachment 12: December 15, 2020, FBI Electronic Communication, Title: Attempted Interview: Hunter Biden 12/08/2020. The 302 reflecting the non-interview of Hunter. Slightly over two hours later, Hunter’s lawyers contacted the FBI.

January 26, 2021 Exhibit 315A: January 26, 2021, Emails Between Joseph Ziegler, Stefania [redacted], and Carly Hudson, Subject: Can you send me the filter terms that have been used for Relativity? For some reason, Ziegler included these filter terms, which will be very helpful to Hunter’s lawyers. Notably, there were two sets of filters: tax and FARA, which may explain the source of Ziegler’s frustration that they didn’t get all results. At that point FARA was exclusively focused on Ukraine.

Exhibit 315B: Appendix A, Filter Keywords for Google Email.

Exhibit 315C: Appendix A – Laptop, Filter Keywords for Laptop Filter.

Exhibit 315D: Appendix A, Filter Keywords for Laptop FARA Filter.

February 5, 2021 Attachment 13: February 5, 2021, Emails Between Joseph Ziegler, Lesley Wolf, Carly Hudson, Joshua Wilson, Susan Roepcke, Michelle Hoffman, Antonino Lo Piccolo, Christine Puglisi, Stefania Roca, Michael Dzielak, Matthew McKenzie, cc’ing Joseph Gordon and Gary Shapley, Subject: Agenda 2/5 Meeting @ 12:30PM. This reflects Wolf and other lawyers briefing seemingly more than one AAG (unclear whether this is Acting, or Assistant, since no one was confirmed yet). Shapley was put out that NSD asked to be briefed on the tax side of the case.

April 27, 2021 Exhibit 1E: Transcript of Recorded IRS CI Interview with Jeffrey Gelfound, re: Hunter Biden Representation Letter and Discussion of Hunter Biden 2014 Tax Return. A fragment of an interview with Hunter’s accountant regarding a representation letter signed 3 months after the initial representation. Gelfound really didn’t seem as worked up about it as the IRS.

April 27, 2021 Exhibit 1F: Transcript of Recorded IRS CI Interview with Jeffrey Gelfound, re: Alleged Gulnora Deduction. The part of the Gelfound interview regarding how the sex worker came to be deducted.

April 27, 2021 Exhibit 1J: Transcript of Recorded IRS CI Interview with Jeffrey Gelfound, re: Hunter Biden’s Tax Payments. Gelfound suggested that the payments with a lien would be paid by Kevin Morris first, possibly because of publicity.

May 2021 Attachment 14: IRS CI Monthly Significant Case Report, Subject Name: Robert Hunter Biden, Month/Year of Report: May 2021. This notes the 2021 expiration of the 2014 tax year. It states that FBI is not sold on charging decision. It says FBI is actively involving FARA. And it claims there are campaign finance violations (pertaining to Kevin Morris paying off Hunter’s taxes), which Wolf wanted nothing to dø with, in part to avoid PIN involvement. She stated that 2014 could not yet be proved beyond a reasonable doubt, which is what she wanted them to focus on.

June 14, 2021 Exhibit 1G: Interview excerpt of Gulnora. This is the interview with the sex worker payments to whom Hunter deducted. She appears to have ties to the overseas escort service, so these payments could be the ones that triggered the entire investigation. Marjorie Taylor Greene misrepresented this interview in her campaign to turn Hunter into a sex trafficker.

September 9, 2021 Exhibit 208: September 9, 2021, Email Between Joseph Ziegler, Lesley Wolf, Stefania Roca, cc’ing Carly Hudson, Jack Morgan, Mark Daly, Christine Puglisi, Michelle Ann Hoffman, Susan Roepcke, and Joshua J. Wilson, re: Frustrations with Interview Delays. Ziegler complains that some interviews with sex workers have to be put off because DOJ Tax is still approving, among other things, a subpoena for Hunter’s lawyer George Mesires.

September 10-24, 2021 Attachment 15: September 10-24, 2021, Emails Between Gary Shapley and Jason Poole, Subject: Quick Call. Shapley’s own supervisor was blowing him off too, but he did follow-up twice to complain about approvals.

September 20, 2021 Exhibit 209: September 20, 2021, Emails Between Mark Daly and Joseph Ziegler, Subject: Re: email sent to mgmt with list of 10 [redacted]. Mark Daly gets involved and seems to move these forward.

September 20, 2021 Attachment 2: September 20, 2021, Emails Between Joseph Ziegler, David Denning, Christine Puglisi, Darrell Waldon, and Gary Shapley, Subject: Travel. Here Ziegler lashes out at his own supervisor, who suggests he send a “collateral” to do interviews in LA, rather than doing them himself. Contrary to wanting to go overt in the past, he claims he is trying to keep things quiet. Ziegler writes that this is “a case I’ve worked with very little problems and only support from my management, you’re making it hard for me to do my job” (though he may have only been referencing the IRS side).

September 20, 2021 Attachment 3: September 20, 2021, Emails Between Joseph Ziegler, David Denning, Christine Puglisi, Michael Batdorf, and Gary Shapley, Subject: Travel. Ziegler escalates to Mike Batdorf. He notes, “I don’t want to put some details in this email” and also says he’s only cc’ing Shapley “because I’ve briefed him on what has happened and because he’s been my management since day 1,” which is of course false.

September 22, 2021 Exhibit 506: September 22, 2021, Emails Between Justin Cole, James Lee, James Robnett, Michael Batdorf, Darrell Waldon, and Joseph Ziegler, Subject: Sensitive Case Heads Up. CNN reached out to IRS and said they had a recent witness saying the case was almost wrapped up, claiming to having a Hunter email saying that all this would go away when his dad became President, claiming there was a plea deal. Batdorf gets the question, sends it to Ziegler, he asks if he can share with the lawyers. Batdorf asks not to share the CNN side, even though they regularly share media reports. Ziegler reports back that Wolf said no plea had been offered.

September 20-23, 2021 Exhibit 507: September 20-23, 2021, Emails Between Joseph Ziegler, David Denning, Christine Puglisi, Michael Batdorf, and Gary Shapley, Subject: Travel. Batdorf follows up again and Ziegler says “It seems to have been a miscommunication from my senior management. … I had a significant amount of trust in my prior management, and for some reason, that has gone away.”

November 16, 2021 Exhibit 1H: IRS CI Memorandum of Interview with Jeffrey Gelfound on November 16, 2021.J

November 23, 2021 Exhibit 402: John Robinson Walker FBI FD-302.

December 20, 2021 Exhibit 200: December 20, 2021, Email from Lesley Wolf to Mark Daly, Jack Morgan, Carly Hudson, Matthew McKenzie, Joseph Ziegler, Christine Puglisi, Antonino Lo Piccolo, Susan Roepcke, Michelle Ann Hoffman, Michael Dzielak, Stefania Roca, Joseph Gordon, and Joshua Wilson, Subject: Thank you! Wolf gives extra credit to Ziegler for all his work.

January 12, 2022 Attachment 16: Notes from January 12, 2022, Sportsman Call. Wolf gives good legal reasons not to pursue the campaign finance investigation, notably that the law is uncertain and the facts are even more attenuated here than they were for John Edwards. She doesn’t want to involve PIN because it would add another level of approval.

Janaury 27, 2022: Prosecution Memo. As described in Shapley’s testimony, this document is what goes through a series of approval processes.

February 15, 2022 Attachment 17: February 15, 2022, Email from Gary Shapley to Darrell Waldon, cc’ing Lola Watson, Subject: For Review/Approval: Sensitive T26 Prosecution Recommendation – SPORTSMAN – SA Ziegler. This was Shapley’s rebuttal to CT’s non-concur on prosecution, based on Hunter’s addictions. Though Shapley (and especially Ziegler) has elsewhere stated clearly that Hunter was totally incapacitated in this period, Shapley now claims, “the universe of his conduct clearly indicated he was lucid during his periods of insobriety and therefore a blanket lack of willfulness defense to the pattern of conduct is not reasonable nor logical.”

May 13, 2022 Attachment 18: May 13, 2022, Email from Gary Shapley to Michael Batdorf and Darrell Waldon, which Gary Shapley Forwarded to Joseph Ziegler and Christine Puglisi, Subject: Sportsman – 3rd DOJ Tax – Taxpayer Conference Delayed. Because of a delay in the tax conference at which the prosecution recommendation would be presented, Shapely pitches briefing Jason Poole and David Weiss on it in advance.

June 14-15, 2022 Exhibit 314: IRS CI Presentation re: Sportsman Investigation “Robert Doe,” Tax Summit, June 14-15, 2022. This is the slide deck presenting the case. Most of it — three pages — describe spin-off investigations. It shows the main remaining steps were to establish venue somewhere besides Delaware and get discovery production; at this moment, Shapley was refusing to turn over discovery production to DOJ.

June 30, 2022 Exhibit 1K: June 30, 2022, Email from Matthew Salerno to Mark Daly, Lesley Wolf, Carly Hudson, Jack Morgan, cc’ing Chris Clark, Brian McManus, and Timothy McCarten, re: 2018 Tax Defenses Proffered, wh ich Mark Daly Forwarded to Joseph Ziegler, Michelle Ann Hoffman, Christine Puglisi, and Michael Dzielak. This is Mark Daly forwarding Hunter’s lawyers’ rebuttal on some of the 2018 deductions, explaining while none of Hunter’s efforts to develop businesses worked, he was attempting. Ziegler has claimed there’s contrary evidence (from James Biden) in the record, but none of that is definitive and James Biden testified his memory wasn’t great on the matter.

June 21-28, 2022 Exhibit 201: June 21-28, 2022, Emails Between David Weiss, Joseph Ziegler, and Gary Shapley, cc’ing Lesley Wolf, Carly Hudson, Jack Morgan, and Mark Daly, Subject: Sportsman Request. After thanking Ziegler for all his work, Weiss asks IRS to have a revenue agent rerun all the loss numbers for 2014 and 2015. He asks for that, first, because that’s what is normally done, and second, because, “at trial we are going to need a testifier on this issue and that testifier can’t be Joe.” While Ziegler ultimately complied with Weiss’ request, Ziegler first appears to have redone the analysis himself. This email will give Hunter’s attorney cause to question the revenue analyst about Ziegler’s role in these numbers, if this ever gets charged.

July 29, 2022 Attachment 19: Notes from July 29, 2022, Sportsman Call. This includes details of the state of the investigation, including mentions of approval for a new prong of FARA investigation, with references to SDNY (CEFC) and Romania. The outstanding witnesses include George Mesires and family members, including James Biden (and possibly Hallie Biden, though that’s redacted), though an August 18 email lists Mervyn Yan among those left to be interviewed. Wolf clearly tells the team that if they don’t indict by September, it’ll be after November. She clearly says that prosecution decision will be collaborative with DOJ Tax. She clearly says she’s not inclined to toll the 2014 and 2015 tax years ago. In short, she clearly communicates, in July, all the things that the IRS agents claim were surprises in October.

August 5-8, 2022 Exhibit 503: August 5-8, 2022, Emails Between Joseph Ziegler and Lesley Wolf, Subject: Meeting with David. Wolf sets up an August 16 meeting that it appears Ziegler requested, at which only Weiss will be present from DOJ. She requests he run numbers on an early undetermined issue. Ziegler says he’s working with revenue agent — the one Weiss asked to involve in June — on that. Wolf is again warm with Ziegler.

August 11, 2022 Exhibit 501: August 11, 2022, Emails Between Mark Daly, Joseph Ziegler, Christine Puglisi, Michael Dzielak, Michelle Ann Hoffman, Susan Roepcke, cc’ing Jack Morgan, Carly Hudson, and Lesley Wolf, Subject: Meeting. An internal IRS meeting about charging decisions that would precede the meeting with Weiss.

August 12, 2022 Exhibit 502: Calendar Invitation, Subject: Sportsman – Call re Charging, Organized by Mark Daly, Required Attendees: Michael Dzielak, Michelle Ann Hoffman, Susan Roepcke, Jack Morgan, Carly Hudson, Joseph Ziegler, and Christine Puglisi, Scheduled for August 12, 2022. The tax meeting on charging decisions.

August 15-18, 2022 Attachment 4: August 15-18, 2022, Email Between Gary Shapley, Michael Batdorf, and Darrell Waldon, Subject: Sportsman Update. Shapley telling his supervisors that Weiss was still not inclined to charge 2014 and 2015. One of his complaints is that if 2104 and 2015 weren’t charged, it would take the Burisma stuff off the table, which doesn’t sound like a tax decision. He’s still worried about not collecting that revenue, though the revenue is not that much (even if you believe him about what was owed). He claimed that Weiss mocked CT’s non-concurrence, but DOJ Tax does seem to side with not charging some of this. Shapley also claimed that the reason he was only learning venue on CA was through lack of transparency, except that’s totally consistent with what Wolf had said earlier: You decide charges first, then venue.

August 15-18, 2022 Attachment 20: August 15-18, 2022, Emails Between Gary Shapley, Michael Batdorf, and Darrell Waldon, Subject: Sportsman Update. This appears to be a dupe.

August 18, 2022 Exhibit 211: August 18, 2022, Email from Mark Daly to Joseph Ziegler, Michael Dzielak, Michelle Ann Hoffman, Christine Puglisi, Lesley Wolf, and Carly Hudson, cc’ing: Jack Morgan, Jason Poole, and John Kane, Subject: Going forward. At this point, the three remaining interviews were Mesires, Merv[y]n Yan, and James Biden.

August 25, 2022 Attachment 21: August 25, 2022, Emails Between Garret Kerley and Lesley Wolf, cc’ing Joseph Ziegler and Mark Daly, Subject: Case Coordination. The FBI SSA (who may have replaced Joe Gordon) complains they’re not communicating enough between meetings and asks to start an email chain. Wolf asks him to stand down until they can meet — clearly an effort to avoid creating discoverable information. Shapley turns it into a Memo for his files.

September 20 – November 8, 2022 Attachment 29: September 20, 2022, Emails Between Gary Shapley, David Weiss, and Darrell Waldon, Subject: SM Meeting – Management. On September 20, Shapley asks for a quick call. Weiss responds that he would set up a meeting/call for updates in near term (what would end up being the October 7 meeting). Then on November 8, after the prosecution meeting is canceled, Shapley attempts to set up a meeting in December. Shapley then writes back on November 8 saying the FBI can’t make it on December 2, so asks Weiss to confirm that December 5 would work.

September 22, 2022 Attachment 22: Notes from September 22, 2022, 2:30PM, Conversation, at which Lesley Wolf and Mark Daly are Present. Shapley notes that Wolf and Daly both joined late but doesn’t say how late. He describes that the US Attorney (whom he refers to as “her” but has to be a reference to Martin Estrada, who was just confirmed on September 19) has only been sworn in and will need time to get up to speed. DOJ Tax also wanted to defer the charges until after the election. And DE’s finance guy had a number of remaining questions.

September 22, 2022 Attachment 23: September 22, 2022; 3:33PM ff, Email from Gary Shapley to Michael Batdorf, Subject: Conversation with Batdorf Michael T. Shapley texts Batdorf, then emails the texts, complaining about the decision to wait until after the election.

September 22, 2022 Attachment 5: September 22, 2022, 5:28 PM Email from Gary Shapley to Darrell Waldon, Lola Watson, and Michael Batdorf, Subject: SM Update. Shapley tells his supervisors that Wolf said they wouldn’t charge until after the election. Shapley complains that, “the statement is inappropriate let alone the actual action of delaying as a result of the election.” He claims ther are other items (which he doesn’t lay out) “that are equally inappropriate,” probably that they weren’t going to charge the gun charge in October. Shapley was told months ago about this, but is wailing now.

September 22, 2022 Attachment 24: September 22, 2022, Email from Gary Shapley to Michael Batdorf, Darrell Waldon, and Lola Watson, Subject: SM Update. This appears to be a dupe, with the news he had a doctor’s appointment redacted.

September 21-October 6, 2022 Attachment 25: September 21-October 6, 2022, Emails Between Shawn Weede, Ryeshia Holley, and Gary Shapley, cc’ing Garret Kerley and Lesley Wolf, Subject: Call on Charging Timeline. This is a thread between Shawn Weede, Ryeshia Holley (whose name the FBI tried hard to keep obscure), Gary Shapley, about setting up the meeting he wanted. Because he was in the Netherlands the last week of September they instead waited until he returned. Shapley sent out his list of agenda items, showing clearly that he came into the October 7 meeting with an agenda — listing “1. Special counsel 2. election deferral comment – continued delays 3. venue issue”. — and a wildly mistaken understanding of how Special Attorney status works. At 4:34PM, two hours after the WaPo story posted, she says the meeting will include, “Anything further that develops by tomorrow.”

September 21 – October 6, 2022 Attachment 1: September 21-October 6, 2021, Emails Between Shawn Weede, Ryeshia Holley, Gary Shapley, cc’ing Garret Kerley and Lesley Wolf, Subject: Call on 2 Timeline. This shows the last two emails to the earlier thread.

September 28-29, 2022 Exhibit 504: September 29, 2022, Emails Between Joseph Ziegler, Darrell Waldon, and Gary Shapley, cc’ing Lola Watson and Michael Batdorf, Subject: Sportsman. Darrel Waldon writes to note he requested a meeting with the US Attorney’s office. Ziegler notes he’s awaiting information about CDCA’s decision on charging 2017-2019. Hours later, Waldon asks him to call his cell. Seemingly after that call, Ziegler responds that, “we also need to request the presentation of 2014 and 2015 to the criminal chief / US attorney in DC.” This seems to be inconsistent with past claims about when and how closely DC USAO reviewed this case.

September 29, 2022 Exhibit 401: IRS CI Memorandum of Interview with James Biden on September 29, 2022. Ziegler has pointed to this interview — “James B was not sending RHB any deals while he was out in California.  … conversations were about getting RHB well at this point and not about business” — as proof that Hunter’s lawyers were lying about his attempts to do business in 2018; yet Hunter’s uncle made clear that he kept trying to engage him and also noted that his memory was not all that clear. The interview also raises questions about Tony Bobulinski’s motives and credibility (as Rob Walker already had). The interview timing is as important as anything else — Shapley went on a tear about the timing of charging before this key interview was even done.

October 6, 2022 Attachment 26: October 6, 2022, Emails Between Gary Shapley, Michael Batdorf, and Darrell Waldon, Subject: Sportsman. After responding to Holley, Shapley alerts his supervisors of the Devlin Barrett story that he would later claim he didn’t know where it was published, noting that it is likely to come up at the meeting the next day. He identifies that the leak was “purportedly from the ‘agent’ level, reveals he spoke with the IRS press person about it, and stated, “I have no additional insight that is anything but a rumor.” This marks the third or fourth inconsistent representation of Shapley’s knowledge of the leak.

October 6, 2022 Exhibit 505: October 6, 2022, Emails Between Joseph Ziegler and Carly Hudson, Subject: Sportsman Uncle question. One of the AUSAs tells Ziegler that Weiss asked about something Ziegler raised, and he states that DOJ-Tax didn’t expect the case to be indicted until 2023, as they were still working on approvals. Hudson sends the email at 10:07AM; Ziegler responds at 6:51PM. I find it exceedingly unlikely Shapley did not also know that the case would not be indicted until 2023.

October 7, 2022: Handwritten notes. As noted these notes show that Shapley misrepresented what David Weiss said and introduced the DC USAO review that would be mooted by the decision not to charge 2014 and 2015, something Shapley had been alerted to months earlier.

October 7-11, 2022: Shapley to Darrell Waldon. The original email Shapley shared, which makes it clear the meeting was dominated by the leak.

October 7-11, 2022 Attachment 6: October 7-11, 2022, Email Between Gary Shapley, Michael Batdorf, and Darrell Waldon, Subject: Sportsman Meeting Update. This adds Mike Batdorf’s response to both Shapley and Waldon, 3 hours after Waldon said he’d handle the referral to TIGTA.

November 7, 2022 Attachment 27: November 7, 2022, Notes, Subject: Telephone Call from FBI Special Agent Mike Dzielak and IRS-CI Case Agent Joe Ziegler. A 10-minute call in which an FBI Special Agent discusses with Shapley and Ziegler that DE USAO was asking for management level emails. Dzielak suggests that the FBI was balking, in the same way that Shapley still was. Shapley offered up that this was proof that DE USAO had no intention of charging, which is utterly debunked by the fact that they had made this request once before (he says in April-May here, but in his House Ways and Means testimony he said it was in March). There’s no mention of the leak.

November 8-10, 2022 Attachment 28: November 8-10, 2022, Emails Between Gary Shapley and Ryeshia Holley, Subject: Next Meeting in Delaware. This reflects Shapley’s immediate effort to schedule a December meeting after the November prosecution meeting was canceled. One reason he did so was because of the request for his own emails.

December 13, 2022: Shapley email to Michael Batdorf. This is the email where Shapley asked Batdorf to ask him if he had any questions about the emails that got turned over.

December 13-16, 2022 Attachment 30: December 13-16, 2022, Emails Between Gary Shapley, Michael Batdorf, and Darrell Waldon, Subject: Meeting at Del USAO Today. Shapley emails Batdorf and Waldon to tell them that prosecutors and the FBI had an all-day meeting in Wilmington. Waldon asks if anyone from Tax participated.

January 6, 2023 Attachment 7: January 6, 2023, Notes, re: Call between Gary Shapley and Michael Batdorf on Whistleblowing. Shapley memorializes an either 8- or 13-minute call with Mike Batdorf, alerting him that on January 4, he lawyered up with “whistleblower” counsel. He gave a weird pitch (including that he would criticize the IRS, but that the IRS could boast that it was an IRS agent who “came forward.” Shapley claimed he would attend to 6103 and 6e matters he has not — including getting approval before sharing. He specifically left out the Senate Finance Committee. And he admitted that he expected DOJ to make “nefarious” allegations against him but hoped the IRS would support him. Batdorf said he hadn’t heard of any allegations.

January 20, 2023 Attachment 8: January 20, 2023, Emails Between Gary Shapley, Michael Batdorf, Darrell Waldon, and Lola Watson, Subject: Discussion – Sportsman. In the guise of finding out what was expected of him, Shapley claimed that FBI investigators had been brought back on the Hunter Biden case (which he learned via Ziegler).  He also noted that a third FBI Agent on the team retired before mandatory retirement. Waldon corrects Shapley that the FBI agents met with DE USAO on other issues, but only inquired about Hunter Biden.

January 25-February 10, 2023 Attachment 9: January 25-February 10, 2023, Email Between Gary Shapley and Michael Batdorf, Subject: For Review/Approval: Administrative Leave Request for Protected Whistleblower Activities – Shapley. Shapley asks Batdorf for paid leave for meetings, including with Congress, months before any overt meetings with Congress happened (suggesting he may have met with Grassley). Batdorf not only gives him leave but offers to pick up his work to enable it. Shapley offers to document with whom he was meeting (which given that this request preceded most overt outreach by months, would have been really helpful), but Batdorf says that’s not necessary.

April 13, 2023 Exhibit 212: April 13, 2023, Email from Joseph Ziegler to Lola Watson, cc’ing Gary Shapley, Subject: Sportsman. Ziegler updates Lola Watson (but not Kareem Carter), about meetings Hunter’s lawyers are having, including with Brad Weinsheimer (which leaked). He claims, without evidence, that Weiss was responding to the Merrick Garland testimony. And he addresses two investigations (which involves someone whose taxes would have implications for Hunter Biden — possibly Kevin Morris, would be consistent with Ziegler’s testimony) from which his team has been excluded.

Attachment 31: May 15, 2023, Notes from Conference Call with Kareem Carter, Lola Watson, Gary Shapley, and Joe Ziegler, Re: Sportsman. Memorialization of 17-minute call on which Kareem Carter took the International Tax team off the Hunter Biden case. Some of Shapley’s claims (such as that he documented complaints going back ot June 2020) are not substantiated in the emails released. And he was downright insubordinate on the call. Importantly, his memorialization does not reveal that Ziegler was not invited on the call, and in fact falsely suggests that Ziegler received an invitation to the call.

May 18, 2023 Exhibit 213: May 18, 2023, Email from Joseph Ziegler to Douglas O’Donnell, Daniel Werfel, James Lee, Guy Ficco, Michael Batdorf, Kareem Carter, and Lola Watson, Subject: Sportsman Investigation-Removal of Case Agent. Joseph Ziegler’s email in which he acknowledges breaking chain of command to complain about his removal.

“Reasonable Persons:” Trump’s Recusal Stunt Flops

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Yesterday, Judge Tanya Chutkan denied Trump’s motion for her recusal.

Chutkan’s order was judicious, clinical, and never once responded to the ridiculous claims John Lauro made in his bid to remove a Black woman judge. In other words, it is a model of judicial temperament, and so will hold up under any appeal.

For example, rather than laying out how much video she had seen implicating Trump in the violence and lawlessness of January 6, Chutkan simply corrected the error Trump’s lawyers had made when they falsely claimed she had seen no video on which to base her comments in Chrstine Priola’s sentencing, and so (they insinuated) had formed opinions based on what she had seen on the news.

The statements at issue here were based on intrajudicial sources. They arose not, as the defense speculates, from watching the news, Reply in Supp. of Mot. for Recusal, ECF No. 58 at 4 (“Reply”), but from the sentencing proceedings in United States v. Palmer and United States v Priola. The statements directly reflected facts proffered and arguments made by those defendants. And the court specifically identified the intrajudicial sources that informed its statements.

[snip]

The court also expressly based its statements in Priola’s sentencing on the video evidence presented earlier in the hearing. Priola Sentencing Tr. at 11– 14, 29. Priola. The statements directly reflected facts proffered and arguments made by those defendants. And the court specifically identified the intrajudicial sources that informed its statements.

Here’s the proof, from the sentencing transcript Trump’s attorneys cited themselves, that prosecutors entered the video that Trump’s lawyers claimed they couldn’t find into evidence.

As we’ve discussed, I would like to play seven video clips which the government feels are the best evidence of the defendant’s conduct that day. The clips total about ten minutes. Each was an exhibit to the government’s sentencing memorandum. Before I play each clip, I’ll just preview a little bit about what each clip shows.

[Introduction of each of 6 videos, including notation that the videos were played.]

THE COURT: There’s no Exhibit 6. Is that right?

MS. ZIMMERMAN: No. That was a mistake, Your Honor.

THE COURT: Okay.

(Video played.)

[snip]

Does the Court have any questions about any of the videos?

THE COURT: No. Thank you.

Having established that the comments about which Trump complained arose in the course of her role as a judge, Chutkan described that she was obligated to directly address the bids that Robert Palmer and Christine Priola made for a downward departure because they were not as culpable as Trump.

To begin, the court’s statements reflect its obligation to acknowledge Palmer and Priola’s mitigation arguments on the record. As already noted, both defendants sought a lower sentence on the grounds that their culpability for the January 6 attack was lesser than that of others whom they considered to be the attack’s instigators, and so it would be unfair for them to receive a full sentence while those other people were not prosecuted. See supra Section III.A. The court was legally bound to not only privately consider those arguments, but also to publicly assess them. By statute, every judge must “state in open court the reasons for its imposition of the particular sentence.” 28 U.S.C. § 3553(c). For every sentence, the court must demonstrate that it “has considered the parties’ arguments,” Rita v. United States, 551 U.S. 338, 356 (2007), including a defendant’s arguments that their case involves mitigating factors that should result in a lower sentence, United States v. Pyles, 862 F.3d 82, 88 (D.C. Cir. 2017). That is what the court did in those two cases. A reasonable person—aware of the statutory requirement that the court address the defendant’s arguments and state its reasons for its sentence—would understand that in making the statements contested here, the court was not issuing vague declarations about third parties’ potential guilt in a hypothetical future case; instead, it was fulfilling its duty to expressly evaluate the defendants’ arguments that their sentences should be reduced because other individuals whom they believed were associated with the events of January 6 had not been prosecuted.

While Chutkan’s comment about what a “reasonable person” should know given sentencing obligations might be a dig at Trump’s lawyers’ claimed ignorance of this basic fact, it nevertheless adopts the standard for recusal: not what a defense attorney feigning ignorance might argue, but instead what a reasonable person might understand.

Chutkan similarly noted that Trump’s team had to adopt a “hypersensitive, cynical, and suspicious” in order to interpret her factual statements as if they necessarily addressed Trump himself.

But the court expressly declined to state who, if anyone, it thought should still face charges. It is the defense, not the court, who has assumed that the Defendant belongs in that undefined group. Likewise, for the sentencing hearing in Priola, the defense purports to detect an “inescapable” message in what the court did not say: that “President Trump is free, but should not be.” Id. at 2 (emphasis added). The court did state that the former President was free at the time of Priola’s sentence—an undisputed fact upon which Priola had relied for her mitigation argument—but it went no further. To extrapolate an announcement of Defendant’s guilt from the court’s silence is to adopt a “hypersensitive, cynical, and suspicious” perspective rather than a reasonable one. Nixon, 267 F. Supp. 3d at 148.

Again, this opinion should be rock solid in the face of appeal, even if it won’t impress those of “hypersensitive, cynical, and suspicious” disposition.

This opinion addresses what reasonable people should understand and believe. It certainly won’t persuade Trump’s groupies, because they are not reasonable people. But it soundly addresses the standard for recusal and the actual evidence before Chutkan.

The Still Ongoing Investigation into Where that Robert Menendez Cash Came From

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Among the most interesting stories I’ve read on Robert Menendez since his indictment is this story, from the day before the indictment.

I find it interesting for how much of the story NBC already had — but more importantly, details from NBC that don’t show up in the indictment. The story reports on two of three prongs that appear in the indictment: It provides passing coverage of the IS EG Halal financing (though offers few specifics of the Egyptian favors) and extensive coverage of the Fred Daibes relationship.

The NBC story actually attributes the Mercedes, which the indictment directly ties to Menendez’ intervention in the state prosecution of a Jose Uribe associate, to IS EG Halal (Uribe does have ties to Wael Hana’s company). NBC doesn’t mention Menendez’s alleged intervention in the state prosecution of Uribe’s associate. Of more interest, it also describes a “a luxury D.C. apartment” that may have come from Hana’s company which is not mentioned at all in the indictment.

The story notes IRS-CI’s involvement in the case (as did Damian Williams at his presser announcing the charges); there’s no sign of tax charges, yet, in the indictment, or for that matter, of campaign disclosure violations (something the NYT reporter who has followed this closely is focused on).

As noted, however, the NBC story focuses much more closely on the Daibes prong of the investigation. It describes witnesses being asked if Menendez offered Daibes to interfere in the federal prosecution against him.

Sources say witnesses are now testifying before that federal grand jury. Part of the investigation centers on the senator’s ties to Fred Daibes, a New Jersey developer and one-time bank chairman. Officials with the FBI and IRS Criminal Investigation want to know if Daibes or his associates gave gold bars to the senator’s wife, Nadine Arslanian — gold bars worth as much as $400,000.

At the time of the gift handoff, Daibes was facing federal bank fraud charges that could have landed him up to a decade in federal prison.

Sources familiar with the matter say federal prosecutors have been asking if Menendez offered to help support Daibes with his criminal case by contacting Justice Department officials about the case. If the senator did offer to act in exchange for expensive gifts, legal experts say that could be a crime.

“For purposes of the Federal Extortion Act, it makes no difference if the senator took an official act so long as he accepted the money and there was knowledge the money was in exchange for that official influence, even if he never carried out what he had promised he would do,” NBC Legal Analyst Danny Cevallos said.

The indictment does not describe such an offer. The closest thing it describes is this exchange, after the prosecution of Fred Daibes was continued, when Nadine told Daibes that Menendez was “fixated” on Daibes’ fate:

On or about December 23, 2021, the trial of DAIBES, which had previously been scheduled for January 2022, was adjourned for reasons related to the COVID-19 pandemic. Later that day, DAIBES texted NADINE MENENDEZ, a/k/a “Nadine Arslanian,” the defendant, and asked how ROBERT MENENDEZ, the defendant, who had recently sustained a shoulder injury, was doing. NADINE MENENDEZ responded that MENENDEZ was doing better having heard that the trial date was adjourned, and that MENENDEZ was “FIXATED on it.” DAIBES responded, “Good I don’t want him to be upset over it. This is not his fault he was amazing in all he did he’s an amazing friend and as loyal as they come. How is the shoulder is he sleeping. Let me know if I can get him a recliner it helped me sleep.” DAIBES thereafter provided a recliner to MENENDEZ.

There’s also an incident where Daibes and Menendez, together, yell at Daibes’ attorney for not being aggressive enough; that’s not a crime, and in fact Menendez will use it to claim he intervened because he cared, not because he was paid.

NBC’s description of Menendez’ contact with US Attorney Phil Sellinger’s office differs in fairly significant ways from the indictment. It cites sources claiming that Menendez never contacted Sellinger or his office.

Sources told News 4 there is no indication U.S. Attorney Philip Sellinger or his office were ever contacted by the senator — but the two men had been close, with Sellinger appointed to the position with the senator’s support, and Sellinger previously serving as a campaign fundraiser for Menendez.

According to the indictment, Menendez did. The indictment alleges that Menendez raised Daibes before supporting Sellinger for the nomination.

In that meeting, MENENDEZ criticized the U.S. Attorney’s Office for the District of New Jersey’s prosecution of FRED DAIBES, the defendant, and said that he hoped that the Candidate would look into DAIBES’s case if the Candidate became the U.S. Attorney. MENENDEZ did not mention any other case in the meeting. After the meeting, the Candidate informed MENENDEZ that he might have to recuse himself from the DAIBES prosecution as a result of a matter he had handled in private practice involving DAIBES. MENENDEZ subsequently informed the Candidate that MENENDEZ would not put forward the Candidate’s name to the White House for a recommendation to be nominated by the President for the position of U.S. Attorney.

And Menendez allegedly called Sellinger’s First AUSA, Vikas Khanna.

b. On or about January 21, 2022, MENENDEZ called Official-3 and asked the identity of Official-3’s First Assistant U.S. Attorney (“Official-4”). As a result of Official3’s recusal, Official-4 had supervisory responsibility over the prosecution of DAIBES.

[snip]

d. On or about January 24, 2022, DAIBES’s Driver exchanged two brief calls with NADINE MENENDEZ. NADINE MENENDEZ then texted DAIBES, writing, “Thank you. Christmas in January.” DAIBES’s Driver’s fingerprints were later found on an envelope containing thousands of dollars of cash recovered from the residence of MENENDEZ and NADINE MENENDEZ in New Jersey. This envelope also bore DAIBES’s DNA and was marked with DAIBES’s return address. In or about the early afternoon of January 24, 2022— i.e., approximately two hours after NADINE MENENDEZ had texted DAIBES thanking him and writing “Christmas in January”—MENENDEZ called Official-4, in a call lasting for approximately 15 seconds. This was MENENDEZ’s first phone call to Official-4. On or about January 29, 2022—i.e., several days after NADINE MENENDEZ had texted DAIBES, thanking him and writing “Christmas in January”—MENENDEZ performed a Google search for “kilo of gold price.”

[snip]

45. Official-3 and Official-4 did not pass on to the prosecution team the fact that ROBERT MENENDEZ, the defendant, had contacted them as described in the above paragraphs, and they did not treat the case differently as a result of the above-described contacts. In or about April 2022, FRED DAIBES, the defendant, pled guilty pursuant to a plea agreement that provided for a probationary sentence.

Frankly, I find this part of the indictment unpersuasive, not just because the evidence presented only ever ties Daibes’ payments to proximate acts, not to a specific quid pro quo, but also because it is not explained how this case went from imminent trial to a sweet plea deal in four months.

A cooperation agreement in this investigation might explain it, but there’s no hint of that, though NBC seems to agree with me that that would explain what we’re looking at.

So one reason I find the NBC piece interesting is it portrays that prosecutors were still trying to obtain proof that this interference was a quid pro quo on the eve of the indictment. And SDNY didn’t provide that evidence in the indictment.

Couple that with two other details.

First, there’s the widely mocked line in the Menendez presser, attempting to explain the large amounts of cash found at his home:

For thirty years, I have withdrawn thousands of dollars of cash from my personal savings account, which I have kept for emergencies, and because of the history of my family facing confiscation in Cuba. Now this may seem old-fashioned. But these were monies drawn from my personal savings account based on the income that I have lawfully derived over those thirty years.

This story is at best a partial explanation for the cash shown in the indictment, much less the checks from Daibes and the gold bars (though Menendez has treated some, if not all, of the gold bars as Nadine’s property).

But consider the utility of it. Most reporters didn’t note Menendez’ silence about the gold bars (Menendez said he’d address other issues at trial). And for less credulous supporters of Menendez, such an explanation is all you need to offer to win their continued support. As with Trump, for the kind of political support you need to try to fight this out, the explanation doesn’t have to be plausible, it just needs to exist.

More interestingly, there’s probably enough truth in the statement — some of the cash the FBI seized in the search last year likely did come from Menendez’ bank account, regardless of why he withdrew it — that if prosecutors attempt to use this video at trial, it could backfire. Prosecutors have called to seize all this cash in forfeiture.

Over $480,000 in cash—much of it stuffed into envelopes and hidden in clothing, closets, and a safe—was discovered in the home, along with over $70,000 in NADINE MENENDEZ’s safe deposit box. Some of the envelopes contained the fingerprints and/or DNA of DAIBES or his driver. Other of the envelopes were found inside jackets bearing MENENDEZ’s name and hanging in his closet, as depicted below.

[snip]

A sum of $486,461 in U.S. currency seized from the Englewood Cliffs Premises on or about June 16, 2022.

But there’s not a shred of evidence that they have the ability to tie all of it — or even most of it — to the specific quid pro quos alleged in the indictment, for which it has better evidence of gold bars as payment. It may come from crime, but if it does, it may not come from this crime.

Prosecutors alleged that all of this $486,000 ties to the crimes alleged in the indictment. If Menendez can prove that some of it doesn’t, then he can use that overreach to discredit the prosecution.

As such, the statement — as ridiculous as it has justifiably been treated — seems partly a taunt. Menendez seems quite confident that prosecutors can’t trace a good deal of this cash, certainly not to these specific crimes, even if they can trace it to Daibes.

Note that Menendez’ claims to care about Egyptian human rights includes a similar taunt, referencing a meeting he had directly with Abdel Fattah El-Sisi. Whether and how and which Egyptians, including Sisi, have evidence to support Menendez’s defense will be a topic of extended litigation. Imagine trying to litigate testimony from the Egyptian President? Similarly, Menendez may demand testimony from his (still) fellow Senators, who witnessed another interaction he had with Sisi.

Which brings me to Damian Williams’ presser.

One reason I’m struck by the NBC story is it suggested there was still some work before prosecutors would be ready to indict, and yet they obtained an indictment — an indictment that doesn’t map the Daibes corruption as closely as I assume they would like — the very next day. Since then, we’ve learned that SDNY unsealed the indictment without first waiting to arrest Wael Hana at the airport, as they did yesterday. It’s highly unusual to indict someone in a way that maximizes their opportunity to flee the country, unless you have good reason to believe they won’t do that.

Hana didn’t take that opportunity to flee.

The whole thing seems either rushed, perhaps in response to disclosures like NBC’s, or tactical, an effort to advance a larger investigation.

As Williams said in his presser,

This investigation is very much ongoing. We are not done. And I want to encourage anyone with information to come forward and to come forward quickly.

That’s a version of the statement Williams made (though nowhere near as forceful) in his first presser on the Sam Bankman-Fried arrest — “come see us before we come see you” — which preceded the announcement of cooperation pleas from two key SBF associaties the following week, at which Williams again invited cooperators to come foward: “we are moving quickly and our patience is not eternal.”

I may be alone in this judgement, but I don’t think SDNY has the Daibes side of these alleged corruption — by far the bulk of the money — at all locked down. The Daibes corruption was the topic of Menendez’ taunt about cash; he may be confident that prosecutors won’t succeed in doing so.

But Damian Williams, at least, seems to believe more is coming.

Update: I didn’t see this NBC report on an ongoing counterintelligence investigation until after I posted. Note that statutes of limitation on some of the allegations in the indictment (which started more than five years ago) would have expired.

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