In the last week, the serial revelations that DOJ had interviewed high level Trump associates, served at least two overt subpoenas, and searched the former President’s golf resort have demonstrated that the army of TV lawyers insisting that “we would know” if Merrick Garland’s DOJ was aggressively investigating Trump were utterly wrong, and wrong for reasons that every single one of them is competent to have known.

Even with your garden-variety alleged white collar criminal (like former Congressman TJ Cox, who was indicted yesterday), DOJ prefers to conduct its investigations secretly, because such investigations are more likely to succeed.

All the more so for a guy with an army of heavily-armed supporters and a history of witness tampering. As the motion to continue sealing the Trump search warrant affidavit states explicitly, many Trump associates will only cooperate so long as they can avoid the backlash and real physical peril that testifying overtly will bring.

[I]nformation about witnesses is particularly sensitive given the high-profile nature of this matter and the risk that the revelation of witness identities would impact their willingness to cooperate with the investigation. 5 Disclosure of the government’s affidavit at this stage would also likely chill future cooperation by witnesses whose assistance may be sought as this investigation progresses, as well as in other high-profile investigations.

5 This is not merely a hypothetical concern, given the widely reported threats made against
law enforcement personnel in the wake of the August 8 search. See, e.g., Alan Feuer et al.,
“Armed Man Is Killed After Trying to Breach FBI’s Cincinnati Office,” N.Y. Times (Aug. 11,
2022), available at https://www.nytimes.com/live/2022/08/11/us/fbi-cincinnati-shootingnews; Josh Margolin, “Authorities Monitoring Online Threats Following FBI’s Mar-a-Lago
Raid,” ABC News (Aug. 11, 2022), available at https://abcnews.go.com/US/authoritiesmonitoring-online-threats-fbis-mar-lago-raid/story?id=88199587.

The risk of political violence in response to investigations of Trump has come to a head in the last week. In the Kyle Fitzsimons bench trial yesterday, for example, witnesses leaving the DC courtroom were harassed by supporters of even this low profile assault defendant. And, as the government noted in their motion to oppose unsealing, last week an armed Trump supporter responded to Trump’s incitement by attempting to breach the Cincinnati FBI office, before being killed in a confrontation with cops later that day.

The guy who tried to breach the FBI office was not just any Trump supporter. He’s a Navy veteran who was at the Capitol on January 6.

A man identified by two law enforcement sources as Ricky Shiffer, who died in a confrontation with police after he fired a nail gun at a Cincinnati FBI building, appeared to post online in recent days about his desire to kill FBI agents shortly after former President Donald Trump’s Mar-a-Lago residence was searched.

Two law enforcement officials confirmed Shiffer’s name. Shiffer was at the Capitol riot on Jan. 6, 2021, according to three people aiding law enforcement who saw him in photos taken from the day of the attack; however, it’s unclear whether he went inside the building. Shiffer frequently posted about his attendance at the Capitol on social media.

On Truth Social, a social media platform founded by Trump’s media company, Trump Media & Technology Group, Shiffer appeared to have posted a message detailing his failed attempt to gain entry to the FBI building.

“Well, I thought I had a way through bullet proof glass, and I didn’t. If you don’t hear from me, it is true I tried attacking the F.B.I., and it’ll mean either I was taken off the internet, the F.B.I. got me, or they sent the regular cops while,” the account @RickyWShifferJr wrote at 9:29 a.m. ET, shortly after police allege the shooting occurred.

In fact, the FBI was already investigating him before he launched his attack.

The officials said federal investigators had been looking into whether the man, Ricky Shiffer, 42, of Columbus, had been involved in the Jan. 6 attack on the U.S. Capitol. They also said the F.B.I. had received a tip about Mr. Shiffer in May that was unrelated to Jan. 6, and agents opened a separate inquiry that included conducting interviews in Florida and Ohio.

The F.B.I. acknowledged in a statement that it had received information about Mr. Shiffer before Thursday, but said that the information “did not contain a specific and credible threat.” The bureau said agents from multiple offices had tried to find and interview him, but had not been successful. A neighbor at an apartment complex in Columbus where Mr. Shiffer lived, who declined to give his name, said federal agents had visited the property a few weeks ago and had asked him questions about Mr. Shiffer, including what time he left home most days and when he returned.

Law enforcement officials separately said they were investigating whether Mr. Shiffer appeared in a video posted on Facebook on Jan. 5, 2021, showing him attending a pro-Trump rally at Black Lives Matter Plaza in Washington the night before the Capitol was stormed.

This time around, as people start to ask, “if they FBI knew about this guy why didn’t they do something?” the FBI could (and should, but won’t) simply respond, “because everyone, from Trump opponents, law and order judges, Republicans in Congress, to TV lawyers told us to stop pursuing January 6 trespassers.” While Trevor McFadden and GOP Congresspeople have told DOJ to stop pursuing January 6 trespassers for different reasons, purportedly to protect political speech, Trump’s critics have said, explicitly, repeatedly, ignorantly, that suspected January 6 trespassers like Shiffer are low-level foot soldiers of little import to the country or to holding Trump accountable.

At this point (and, seemingly, for quite some time), DOJ really doesn’t seem to be arresting random trespassers. While the reasons for FBI’s heightened interest in a particular trespasser isn’t always clear (sometimes it is), most misdemeanor arrests these days seem to fit one or another investigative priority. In response to a recent claim DOJ was wasting its time with ongoing arrests of those who breached the Capitol, for example, I noted that recent arrests consisted of:

• Someone described to have stripped a cop of his baton and used a megaphone to rile up other rioters
• The guy with the most striking set of tattoos caught in any January 6 footage which unsurprisingly comes with a felony record
• A woman who wore a pretty red coat and wielded a stick with metal attached
• A Proud Boy who used bear spray and damaged his ear
• A QAnoner with blue hair and a handful of aliases long known to anti-fascist researchers for her extremist views

Compared to those arrests, Shiffer probably looked to the FBI just like another rabid Trump supporters whose uncertain movements around January 6 and transient recent history made him especially difficult to arrest, but whose military background and that recent tip generated active investigative interest. Yes, he was a rabid Trump supporter who, any moment, could turn — could be turned — into an imminent threat.

But at least given what we know thus far, the FBI likely had few clues that he was going to be the one whose online calls for war would turn to action.

That’s because there are 5,000 more like him out there.

I don’t mean, there’s a shit-ton of Trump supporters who could go postal at any moment. There are far more than 5,000 of them.

I mean, there are 5,000 people who participated in January 6 that the FBI might have predicated investigative interest in, but has not yet arrested.

That’s a fairly conservative number. In recent days, DOJ passed the 850 arrest mark for January 6 defendants. There are probably 1,500 to 2,000 more people who entered the Capitol on January 6 whose arrest would be comparatively easy (because their trespass is fairly easy to prove) who have not yet been arrested. There are probably 250 identified suspected assailants still at large (over 530 people, including those who’ve been arrested, are listed on the FBI site). And there were probably 10,000 people who breached the external barricades but did not enter the building that DOJ would only arrest if there were something extra — the political profile of Ryan Kelley or Couy Griffin, the pre-existing Deferred Prosecution Agreement of Owen Shroyer, conspiracy ties like Stewart Rhodes — to justify the arrest. Sure, the people who attended the January 5 rally, as Shiffer did, were more likely to participate in more radicalized online networks; those people weren’t in DC just to hear the loser of an election speak.

But at every moment that DOJ has been investigating the leaders that orchestrated January 6 (which provably started within weeks of the attack) and at every moment that DOJ has been investigating Trump’s other criminal acts, DOJ and FBI have been trying to deal with the growth of political violence that Trump has deliberately fostered. DOJ spent the weeks after January 6 doing triage, trying to arrest enough people to get visibility on the very real plans for follow-on attacks before or at the Inauguration. DOJ spent the year after January 6 trying to incapacitate the militia networks that served as an organizing structure for the attack. And DOJ has spent the last six months, as it turned more overtly to investigate several sets of crimes by the former President, trying to anticipate which of those 5,000 veterans of January 6 would, alone or in concert, attempt to reignite a civil war.

I hope that, given the Shiffer example, impatient people who’ve never bothered to understand the crime scene itself will remember that everyone they’ve dismissed for a year as low-level January 6 trespassers may be the next Ricky Shiffer. It’s easy to imagine that if you just arrest Trump all that political violence will dissipate. But that wouldn’t even have been true in 2019, if Mueller had indicted, and it sure as hell isn’t true now. And every step DOJ takes to get closer to arresting Trump, or even just hold the butchers like Fitzsimons who took up arms on January 6 accountable, the mob of people that Trump radicalized on January 6 remains an urgent threat.

There are two separate receipts for the search of Mar-a-Lago signed, in the same minute, by Trump lawyer Christina Bobb.

There’s the one consisting of five boxes and a separate category, “Documents,” not associated with any boxes, signed by the Supervisory Special Agent. There are no classified documents described. I’ll refer to that as the SSA Receipt in this post.

Then there’s the one that consists of 27 items, mostly boxes, many with sub-items, which are often descriptions of the kinds of classified documents contained in the box or the leather case they were seized in. It was signed by a Special Agent. I’ll refer to that as the CLASS Receipt in this post.

Bobb signed them both at 6:19PM, so unless she’s a shitty lawyer, these receipts were presented to her together as one running receipt.

Whatever else the FBI is, their searches are methodical. They come in, secure the location, serially take pictures of the rooms being searched (so the criminal suspects don’t claim evidence was planted, as criminal suspects are wont to do), label the things to be searched, start sorting through items according to a search protocol to see if they’re covered by the warrant, then inventory the things being seized. In this case, there would have been another part of the process to make sure no attorney-client privileged materials were seized.

In the search of Trump’s house, at least 73 boxes appear to have been labeled (based on the highest box label number), but just 26 boxes were seized.

By all appearances, these two receipts stem from the same methodical search. For example, the documents listed as item 4 on SSA receipt are in the same overall inventory as everything else, but appear out of sequence. They likely bear some proximal relation to low-item numbers in the CLASS receipt — things like the Roger Stone clemency and the binders of photos. Perhaps they were all found in Trump’s office or residence. But they are on the SSA receipt.

The series of box labels crosses both receipts. For example, it appears that boxes A-14 and A-13, which appear in the SSA receipt, were labeled in close proximity and time as boxes A-12 and A-15, which are among the lowest numbered boxes on the CLASS receipt. But they got listed on the SSA receipt, where all boxes appear together as the final five items on the combined inventory, items 29 through 33.

I’d like to talk more about the search, but first let me spoil the punchline: One likely (though not the only) explanation for the two receipts has to do with the venue in which Trump’s suspected crimes were committed and therefore the ultimate destination of the seized materials, with the SSA receipt materials being sent to DC as evidence of 18 USC 1519 and the CLASS receipt materials being kept in Miami as evidence of multiple violations of the Espionage Act that occurred at Mar-a-Lago.

But let’s go back.

I believe this warrant is the totality of the search on Trump’s mansion. While File411 suspects there’s another warrant (or two), I don’t believe those authorize a search of Trump’s house, not least because Judicial Watch has only asked to unseal one, and Trump’s people will have told them what they wanted unsealed. Merrick Garland referred to unsealing the documents relating to Trump’s house, and I’d be surprised if he played word games to hide further search materials when Trump would literally have receipts to call out any such obfuscation. That doesn’t rule out that the other warrants identified by File411 were related searches, perhaps of locations where Trump’s stolen documents may have been moved, but I believe we’re looking at the totality of the physical search at Mar-a-Lago. Update, August 15: DOJ has now confirmed that this is an entirely separate ongoing investigation. Remember that lots of January 6 suspects live in Florida, so it could be something like that or an entirely different type of crime.

The warrant authorizes the FBI to search Trump’s office (the narcissist appears to have renamed it the 45 Office but it has been referred to as the bridal suite), all storage rooms (the one that Trump’s lawyers showed Jay Bratt when he visited in June is not identified by name), and anywhere else Trump or his staff might have stashed boxes or documents. We know from reports that that included Trump’s personal residence, but the FBI didn’t call it out by name. Curiously, the FBI made clear that when it said the search did not include spaces occupied by guests or other residents, they mean “currently,” as if there’s a room someone recently vacated that is of interest.

Attachment B, which describes the items to be searched for, is one of the things that may explain the two receipts. It starts by listing three crimes: 18 USC 793 (Gathering, transmitting or losing defense information, which is part of the Espionage Act), 18 USC 2071 (Concealment, removal, or mutilation [of official records] generally), and 18 USC 1519 (Destruction, alteration, or falsification of records in Federal investigations).

Despite the fact that every single leak to the press about the scope of the warrant claimed that two crimes were listed, “mishandling classified information” and the Presidential Records Act, those leaks were all false. The former was a transparent attempt to avoid saying the word “Espionage” and the latter is not listed on the warrant as a crime being investigated at all (though I would bet a great deal of money that it features prominently in the affidavit). 18 USC 2071, in this context, may serve as a proxy, criminalizing the removal of records covered by PRA. And one of the four bullets describing materials that can be seized, bullet c,  stems from PRA: “Any government and/or Presidential Record created between January 20, 2017, and January 20, 2021.” Because it would cover items implicated in the two other crimes, National Defense Information and evidence from Federal investigations, that bullet point serves as a larger umbrella in this search. If Trump tries to claim he declassified the items seized in the Espionage Act investigation, for example, the government will be able to say they still seized them lawfully given that bullet point and the inclusion of 18 USC 2071, because to still be at Mar-a-Lago at this point, they would have had to have been removed improperly from government control.

There are two bullet points scoping out materials relating to the Espionage count. Bullet point b authorizes the seizure of information about the storage of NDI or classified information.

Information, including communications in any form, regarding the retrieval, storage, or transmission of national defense information or classified material.

If Trump or his flunkies are charged under the Espionage Act, DOJ will have to rebut the claims being floated by Kash Patel and John Solomon that Trump declassified this material. One way to do that is to show that Trump or his lawyers instructed staffers to treat certain materials as if it was classified. If, for example, Trump put up post-it notes on his storage room saying “Danger: Sekrits. Keep Out,” it would prove that he was telling others to treat the documents with care. I’m only partly joking. We know there were efforts to prevent uncleared staffers from looking at classified information. Obtaining written proof of such instructions is one of the ways DOJ would prove that Trump did know this stuff remained classified. Even if those efforts were only enforced by his lawyers — the same lawyers who failed to turn over these materials in response to subpoena — it will be powerful evidence that those documents were being treated as if they remained classified.

The other bullet point authorizing evidence covered by the Espionage Act reminds me of Borges’s writings on classification.

Any physical documents with classification markings, along with any containers/boxes (including any other contents) in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes.

Effectively, this allows the FBI to seize documents with classification markings and then work out from there, seizing the box containing the document marked as classified, as well as the contents of the closet that a box containing a classified document was in. It’s fairly easy to understand why the FBI wrote it this way (and it may be tailored to overcome the justifications Trump made over the course of 18 months to try to retain certain materials). The President looks at — and in many cases, generates — a whole slew of things that are considered highly classified, but in a form that wouldn’t have classification marks on it, especially if he never shared it with a staffer. If Trump took notes with his Sharpie on a cocktail napkin during a phone call directly with Mohammed bin Salman, for example, it would not include classification marks, but it might be highly classified. So this bullet point allows FBI to seize stuff being treated the same way as documents that do have formal classification markings, which government classification experts can then apply the appropriate classification to.

How this might have worked in practice appears on the CLASS receipt. The second-most interesting item on the list (after the Roger Stone clemency that seems to have some tie to the French President) is the leather box in which the only documents inventoried as TS/SCI were stored.

Not all of these documents are TS/SCI; the inventory even notes that some are just classified. But given the way the warrant is written, the FBI was permitted to seize the entire box, which appears to contain Donald’s precious treasures, even if some of the documents in there are not labeled as classified. It may be that witnesses told the FBI of the existence of this box so the FBI knew to look for it. By seizing the entire box, the FBI would get things that might be even more sensitive than the TS/SCI stuff, but that don’t bear markings, like that hypothetical cocktail napkin with notes of Trump’s secret calls with MbS.

The thing is, these categories overlap. There may have led to some triage onsite about how to classify seized documents. I suggested that item 4 — documents — may have been stored with items 1 through 7 in Trump’s office or residence. If so, they could have been seized by proximal location. But they’re inventoried on the other receipt for some reason, potentially even taken out of a box or that leather case and seized separately as individual documents.

Similarly, boxes A-13 and A-14 were likely stored in close proximity to box A-15, which includes at least some Secret Documents, and box A-16, which includes at least some Top Secret Documents. So they could have been seized under the logic of proximity. But like item 4, they’re on a different receipt.

Which brings me to the final bullet describing the scope of the search (and back to my working hypothesis for the two different receipts, that the SSA receipt covers evidence of obstructive acts committed in DC). It authorizes the seizure of evidence of the destruction of records.

Any evidence of the knowing alteration, destruction, or concealment of any government and/or Presidential Records, or of any documents with classification markings.

This language comes right out of the obstruction statute, though leaves out the reference to “investigation[s] or proper administration:”

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

This part of the warrant, not the reference to the Espionage Act, was the biggest secret of the week. I was not surprised that anonymous sources from the Trump camp soft-pedaled the word “Espionage.” It’s why I was pushing for pressure on Trump to release the warrant. It’s what I believed Trump most wanted to hide.

But remarkably, Trump’s leakers were hiding this part of the warrant even more aggressively. In the entire week of post-search coverage, there was never a hint that obstruction was on the warrant, too. The “Expert Explainers” gaming out what crimes might be on the warrant completely missed obstruction. I did too.

We shouldn’t have. The coverage of the Archives’ referral of Trump to DOJ described his destruction of evidence even more prominently than it did his theft of classified documents.

The National Archives and Records Administration has asked the Justice Department to examine Donald Trump’s handling of White House records, sparking discussions among federal law enforcement officials about whether they should investigate the former president for a possible crime, according to two people familiar with the matter.

The referral from the National Archives came amid recent revelations that officials recovered 15 boxes of materials from the former president’s Mar-a-Lago residence in Florida that were not handed back in to the government as they should have been, and that Trump had turned over other White House records that had been torn up. Archives officials suspected Trump had possibly violated laws concerning the handling of government documents — including those that might be considered classified — and reached out to the Justice Department, the people familiar with the matter said.

[snip]

Trump’s years-long defiance of the Presidential Records Act, which requires the preservation of memos, letters, notes, emails, faxes and other written communications related to a president’s official duties, has long raised concerns among historians and legal observers. His penchant for ripping up official documents was first reported by Politico in 2018, but it has drawn new scrutiny in recent weeks because of a House select committee’s investigation of the Jan. 6, 2021, attack on the U.S. Capitol.

The Washington Post reported late last month that some of the White House records the National Archives turned over to the committee appeared to have been torn apart and then taped back together. The Post later found — and the Archives confirmed — that officials had recovered 15 boxes of presidential records from Mar-a-Lago.

As described, by the time of its criminal referral, the Archives had already found that documents that were responsive to the January 6 Committee’s investigation (and so, derivatively, DOJ’s investigation of Trump personally) had been “altered, destroyed, or mutilated.” DOJ would have started this investigation knowing that Trump had attempted to destroy evidence implicating him in January 6 (though we actually have evidence of him attempting to destroy or alter evidence pertinent to other criminal investigations, too).

By description, when Trump tried to destroy evidence, he did so immediately, in the heat of the moment, in the White House. For that reason, and because the known federal investigations — his attempted coup on January 6, but also his ties to Russia, his coercion of Ukraine, even his inauguration graft — were all predicated in DC, the investigation into Trump’s obstruction of those investigations would be in DC too. That’s why I hypothesize that FBI may have inventoried everything and then, when compiling a final inventory to share with Trump, they distinguished between the suspected crimes that would have been committed in Florida, by storing classified information improperly and refusing to return it to the Federal government, and the suspected crimes that would have been committed in DC when — on January 20 or before, including between January 6 and January 20 — Trump ripped up, flushed, burned, or tried to eat incriminating evidence.

Unless Trump were to waive venue (which he would never do), any prosecution of Trump under the Espionage Act would happen in SDFL, because that’s where he illegally retained classified information after the government asked him to give it back. But any prosecution of Trump for obstruction would happen where the investigations he obstructed were and where he ripped up evidence, in DC.

Item 4, documents, might just be documents that bore visible signs of destruction that had some identifiable tie to January 6 or some other known investigation. They could even be classified! The obstruction bullet point includes classified documents! But they would have been seized, first and foremost, because they were evidence that Trump was trying to impede an investigation or some other government function by destroying evidence.

That has one more big implication, which may be why Trump’s team tried so hard to hide that FBI was looking for evidence of obstruction. There were also leaks (including leaks from the government side) that nothing on this search warrant pertains to January 6. Technically that’s true. Obstruction of the vote certification and conspiracy to defraud the government, the most obvious crimes covering Trump’s conduct leading up to and on January 6, aren’t on the warrant. But as that coverage of the original referral we all forgot to read makes clear, January 6 is at least one of the investigations that Trump is being investigated for obstructing. If the evidence of obstruction is being boxed up and sent back to DC where such an investigation would be predicated, then the evidence would thereby become available to investigators, both for evidence of Trump’s obstruction of an investigation, but also for evidence of Trump’s conduct as well.

Oh. And if Trump were found to have obstructed an investigation into conspiracy by destroying evidence, it might extend the statute of limitations on that conspiracy.

I wrote a long thread yesterday about how Trump epically fucked up by giving DOJ grave reasons to come search his home. DOJ would never have searched Mar-a-Lago for materials Trump withheld in violation of the PRA. They probably would never have searched MAL for evidence he withheld regarding January 6. But Trump kept refusing to turn over classified information DOJ knew he had, some of it reportedly incredibly sensitive. Trump dared Merrick Garland to come get those classified documents. And in so doing, Donald J. Trump gave the FBI urgent reason to come into his home to seize — along with at least 11 boxes containing classified documents — the evidence about January 6 and other investigations that is so sensitive Trump tried to destroy it before refusing to turn it over to the Archives.

Less than an hour ago, a local Florida reporter, Peter Schorsch reported that FBI Agents had just left Mar-a-Lago.

Scoop — The Federal Bureau of Investigation @FBI today executed a search warrant at Mar-a-Lago, two sources confirm to @Fla_Pol. “They just left,” one source said. Not sure what the search warrant was about. TBH, Im not a strong enough reporter to hunt this down, but its real.

Scott Stedman, virtually alone of everyone hearing this, got confirmation that the FBI had conducted “court-authorized law enforcement activity” at 1100 S Ocean Blvd, Palm Beach, FL 33480.

Virtually everyone else — starting with Maggie Haberman — cited the resident’s inflammatory press release.

You’re all competent enough to find that yourselves.

Shit’s about to get real, because in a matter of minutes, virtually every reporter in the country subjugated themselves to Trump propaganda.

Update: Several outlets are reporting that this pertains to Trump’s suspected theft of classified information.

Per multiple sources speaking with CBS News, the search at Mar-a-Lago is related to the missing White House documents

I first published this post on the revelations about Brandon Straka’s misdemeanor plea on August 5 at 2:10PM ET.

I posted it about 29 hours after Judge Dabney Friedrich ordered the Probation Office to provide a report by September 30 about Straka’s compliance with probation; during a status hearing a day earlier, Friedrich admonished Straka about saying things publicly that conflicted with what he had said to the FBI in interviews and said to her at his plea colloquy.

I posted it about 28 hours after FBI Director Christopher Wray responded to one of the only questions raised in an SJC oversight hearing about January 6 that, “And then, of course, I have to be a little bit careful about what I say here but we are continuing to develop some of the more complicated parts of the investigation in terms of conspiracy charges and that sort of thing.”

I posted it minutes before a CPAC panel (sponsored, in part, by a Viktor Orbán-tied NGO) featuring Andy Biggs, Straka, and Kash Patel warning that  “Soros prosecutors” were instituting a “Democrat Gulag.”

Straka spent most of the rest of that day, Friday — the day after the judge overseeing his probation ordered more scrutiny into the sincerity of claims he made under oath and to the FBI — in a cage, performing the role of a jailed January 6 defendant counting the days until his release, crying.

Some spectators wept. Some threw money into the cage. Others came up close to mutter words of comfort and support to the emotionally distraught man inside, who was alternating sitting on a bare cot with his head in his hands, and writing sad slogans on a blackboard like “Where is Everyone?” Among those in the audience was Zuny Duarte, mother of Enrique Tarrio, the jailed ex-chairman of the Proud Boys facing seditious conspiracy charges for his role in the Capitol. One man, wearing a T-shirt saying “Correctional Officers for Trump 2020” pointed at his chest, making sure the “jailed” activist saw, and said “”I know how it works, man.”

During Thursday’s performance in the J6 cage, the man in the prison had been an actor. But on Friday, the man was none other than Brandon Straka, a self-proclaimed former liberal who founded #WalkAway, a social media campaign encouraging Democrats to ditch their party for the GOP. Straka was a vocal Stop the Steal proponent and activist, and landed in hot water with the feds when he filmed himself from the steps of the Capitol building on Jan. 6.

All of which makes me really glad that, in that post, I reiterated all the concerns I’ve raised in the past about Straka’s treatment, including that the deal given to Straka would backfire.

Plus, it’s not entirely clear whether such pleas will backfire down the road, given that prosecutors have little ongoing means to ensure cooperation, as they would with felony cooperators hoping to benefit from 5K letters supporting leniency at sentencing.

[snip]

At the time, it looked like a shitty deal by the government, and multiple researchers I know grumbled that the government simply didn’t know what a central role Straka had when they interviewed him just weeks after the riot.

Even in December, there was good reason to question whether DOJ had made a decent deal when it traded information about Stop the Steal organizers in exchange for a misdemeanor plea, rather than building their case, including Straka in a conspiracy to obstruct the vote certification, and then flipping him.

Now, with Straka openly mocking the entire DOJ investigation, there should be real questions at DOJ whether Straka is replaying the Mike Flynn or Jerome Corsi play, reneging on purported cooperation to sabotage the investigation into Trump and his associates.

As a reminder, in Corsi’s case, in an initial interview with Mueller’s prosecutors, they caught him making claims that conflicted with communications records DOJ already obtained. Then, they got him to admit to a grand jury that Stone had asked him to establish a cover story for his “Podesta time in a barrel” tweet in real time, just days after Stone tweeted it. But then — at a time when, Corsi claimed, he was in communication with Trump’s attorney Jay Sekulow, Corsi went on his podcast and amid a dramatic meltdown not dissimilar from the drama we’ve seen from Straka, revealed that prosecutors were trying to force him into a cooperation plea deal with the government. After that point, his interviews with Mueller were a conflicting mishmash that, whatever else they were, made his prior testimony largely useless in any prosecution. It’s likely that an investigation against him was among those referred by Mueller. But he’s also such a batshit crazy person, it’d be hard to hold him accountable for deliberately blowing up interviews with the government.

In Mike Flynn’s case, his competent Covington lawyers negotiated a ridiculously lenient plea deal (in my opinion, one of Mueller’s three greatest mistakes), one that would have gotten the retired General no jail time. During the period he was supposed to be cooperating, he remained in touch with SJC staffer Barbara Ledeen and her husband Michael and Nunes aide Derek Harvey, all of whom kept him apprised of Sara Carter-backed propaganda efforts and Republican Congressional efforts to discredit the investigation. In 2018, Flynn even sent Matt Gaetz a text pushing for more pressure on Mueller. Then, once Bill Barr was confirmed, Flynn fired his competent lawyers and replaced them with Sidney Powell, who with Barr’s collusion, invented a slew of reasons that undermined the investigation against Flynn (in the process, protecting Trump from any Flynn-related obstruction charges). The outcome for Flynn was probably worse. But in the process, Flynn convinced a lot of people who only too late came to understand that both he and Sidney Powell are completely unhinged when they claim that the investigation against him was not a sweetheart deal, but instead a gross abuse of prosecutorial authority.

In both cases, Trump associates or movement operatives identified a cooperating witness and instead turned them into a chaos agent undermining an ongoing investigation. Here, Straka is appearing on a panel with suspected participants in the coup attempt, Andy Biggs and Kash Patel, and cozying up with someone who called for “Marshall Law,” all at a time when DOJ seems to be working on charges arising out of his so-called cooperation.

Given Straka’s recent trajectory, two details of his case from after the time his limited cooperation was made public are noteworthy. First, while Stuart Dornan, a former FBI Agent located (like Straka) in Nebraska remains on Straka’s team, in January, Straka added Bilal Essayli to his legal team, who appears to have taken the lead since, with it striking a far more confrontational tone.

Additionally, Straka’s team specifically — and successfully — objected to the Probation Office’s recommendation that Straka’s social media be monitored.

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

Thus, while Dabney Friedrich ordered the Probation Office to conduct a review of what Straka has been up to while he has been engaging in deceitful performance art attacking the case, when she sentenced Straka, she specifically declined to include review of Straka’s social media. Straka has spent the last six months making a mockery of what he said to Friedrich back in January, most often on social media.

Mike Flynn, especially, has become a movement hero for tanking his own case to create havoc for any case against Trump. And Straka seems intent on pursuing just that kind of notoriety.

And it’s not clear what tools DOJ has retained to prevent that from happening.

I’ve written a fair amount about the way DOJ is using misdemeanor cooperation deals with the January 6 defendants. The vast majority of misdemeanor plea deals, most often for parading, require the defendant to share their social media and sit down for an interview with the FBI. To the extent such interviews get described in sentencing documents, some result in the defendant lying more (DOJ has yet to charge anyone for doing so), some seem to provide the FBI a deeper sense of the organizing networks that contributed to convincing people to travel to DC and participate in a riot, and some seem to provide insight about what transpired in offices or other locations that weren’t well-surveilled. Every defendant was also a firsthand witness, and so some of these interviews appear to have been really important for a larger understanding of the event.

There’s another kind of misdemeanor plea offered to key defendants who could be charged with a felony (usually obstruction or civil disorder), but who instead get charged with one of the misdemeanor charges, often after a long delay. The understanding is that such defendants offer some cooperation on the front end, effectively working their way into a misdemeanor plea. There are two people who we can say, with high confidence, have received one: Brandon Straka and Anthime “Baked Alaska” Gionet. Some Proud Boys appear to have either received one or be working on them, with Zach Rehl co-traveler Jeff Finley the most prominent. I’ve got suspicions that maybe ten other defendants got such pleas. But beyond that, it is virtually impossible to distinguish someone who benefitted from really good lawyering from someone who got such a plea.

I’m sure the government loves that part of such plea deals: it accords their investigation extra secrecy and may provide cooperation sooner rather than later.

However, particularly given that there are just a handful of people tracking the cases who have a sense of the relative importance of some of these defendants, such plea deals likely add to the distrust of DOJ’s investigation. To those who know about important movement operatives getting misdemeanors, it looks like conspirators in a larger plot aren’t getting charged; to those who have no clue that movement operatives were arrested for their role in the attack, it feeds the mistaken belief that DOJ isn’t investigating anyone but trespassers. Plus, it’s not entirely clear whether such pleas will backfire down the road, given that prosecutors have little ongoing means to ensure cooperation, as they would with felony cooperators hoping to benefit from 5K letters supporting leniency at sentencing.

That’s why I’m interested in what transpired with Brandon Straka’s cooperation in recent weeks.

Straka, as I’ve covered in the past, was a key player in the Stop the Steal movement, most famously in his role riling up the crowd outside the Wayne County vote count in Michigan. He was a speaker at one the January 5 events, got stripped of his January 6 speaking spot as Katrina Pierson tried to cut out the crazies, and then watched Trump’s speech from his VIP seat right next to Mike Flynn. Straka stopped off at the Willard Hotel on his way to what he claims to have believed was another speaking slot on the East side of the Capitol, where he joined in the mob. He was originally charged with civil disorder for his role in encouraging others to steal a shield. But by the time he was first formally charged in September, he was charged just with the less serious parading count. His plea agreement — the standard misdemeanor one — lacked the standard cooperation paragraph (which has at times reflected such an interview already took place), though that in no way confirmed that his was a cooperation misdemeanor. It wasn’t until December, with a joint motion to continue the sentencing citing new information provided by Straka, that it was clear something more was going on.

On December 8, 2021, the defendant provided counsel for the government with information that may impact the government’s sentencing recommendation. Additionally, the government is requesting additional time to investigate information provided in the Final PreSentence Report.

That was the first mistake; a recently unsealed filing revealed a belated request to put the filing under seal. After Judge Dabney Friedrich denied that request, the government tried again, citing contacts Straka had gotten in response to reports of his cooperation and concerns about his safety.

The government respectfully requests sealing because the motion to continue referenced the fact that the government was requesting a continuance of the sentence to evaluate newly discovered information provided by the defendant. Since the filing of the joint motion to continue, the defendant has been contacted by individuals who believe that he is cooperating with the government. Additionally, media outlets have also reported that the defendant is indeed cooperating with the government. The government has attached exhibits that have been provided to the government by defense counsel.

The United States respectfully submits that filing this pleading under seal is necessary because it references sensitive information related to sentencing. The request for sealing is based on the government’s desire to maintain the integrity of this investigation and protect the safety of the defendant.

The court filings associated with the delayed sentencing, in January, similarly requested sealing. The government’s public sentencing memo described three cooperative interviews — with the initial ones on February 17 and March 25, 2021 — and cited a sealed cooperation memo.

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

Straka described seeing people “clustered” and “packed in” near the entrance to the U.S. Capitol. He admitted to video recording the event and later posting and removing the videos from Twitter. He also admitted knowing that the rioters were entering the U.S. Capitol without authorization and with the intent to interfere with Congress. Straka provided additional information to the FBI regarding the events leading up to and during January 6.

After this initial interview, the FBI met with Straka a second time on March 25, 2021 with follow-up questions. Straka was cooperative during the interviews.

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

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

At the time, it looked like a shitty deal by the government, and multiple researchers I know grumbled that the government simply didn’t know what a central role Straka had when they interviewed him just weeks after the riot.

On July 26, the press coalition that does these things moved to have Straka’s sentencing records unsealed. That day, Judge Friedrich issued an order to unseal the motions to seal, but (we subsequently learned) an error in the clerk’s office led Straka’s memo supporting substantial cooperation to be filed briefly in unsealed form.

At first, Judge Friedrich set a hearing to further unseal the docket, but what must be further sealed filings informed her the parties need to further delay any unsealing — the kind of thing that reflects ongoing cooperation or upcoming charges. At a hearing on Wednesday, Judge Friedrich (having already ceded to the request to delay further discussions of unsealing) worked out that the Straka filing had been released accidentally, then she basically blamed all parties — the government, Straka, herself, the clerks — for not taking better care of sensitive records describing cooperation.

She did, however, read Straka the riot act for comments he continues to make publicly that directly conflict with his comments to her at sentencing; she ordered semiannual reports from the Probation office on whether Straka continues to say things that might merit a False Statements charge.

In short, even a judge who presided over one of the most obvious of these pleas was pretty oblivious to the difference between the normal misdemeanor cooperation and this “substantial cooperation” one. And all the people complaining that DOJ wasn’t investigating organizers — they would know, the TV lawyers said — had absolutely no idea that FBI was getting information on key organizers with advance knowledge of Trump’s plans within weeks of the riot.

The one person who caught and wrote about the accidentally unsealed cooperation memo, Jordan Fischer, described what it said here (wayback version for those behind the GDPR wall).

In the memo, Dornan said Straka provided “significant information” to federal investigators over three interviews with the FBI following his arrest. In one interview on March 5, 2021, Straka, according to Dornan, provided information about “individuals who were inside of Nancy Pelosi’s office; individuals who were inciters at the Capitol; and organizers of the Stop the Steal movement.” He also listed the names of individuals Straka spoke to the FBI about. Those names include rally organizers Amy and Kylie Kremer, Cindy Chafian and Ali Alexander — who Dornan described as the “preeminent leader of the Stop the Steal movement.”

[snip]

Straka also gave contact information and other details about members of a “Stop the Steal” text thread that included, according to Dornan’s memo, Alexander and other right-wing personalities with large social media followings. As well, Dornan said, Straka provided unspecified information about Tea Party Patriots co-founder Jenny Beth Martin and anti-vax Dr. Simone Gold, who are both affiliated with America’s Frontline Doctors. Gold, like Straka, was charged in connection with the riot and pleaded guilty to a misdemeanor count of entering and remaining in a restricted building. She was sentenced in June to 60 days in jail and a $9,500 fine. Martin posted a picture of herself on social media in the audience of the “Save America March” on Jan. 6 and public video shows her using a megaphone on the west lawn of the Capitol later in the day urging protestors not to climb on scaffolding. She has not been charged in connection with the riot.

As Fischer noted, the Kremers, Alexander, and Chafian were the key organizers for the parts of the rally that fostered violence; the January 6 Committee has quoted especially the Kremers for their foreknowledge of Trump’s plans to march to the Capitol.

In short, Straka’s attorneys at least claimed that he offered details — in March 2021 — about precisely the Stop the Steal and rally organizers and other influencers whom virtually all TV commentators claim DOJ hadn’t been investigating.

While we know that Baked Alaska got one of these deals because he blathered his mouth, from the outside, these deals are presumably supposed to look like just another trespasser plea.

One more comment about this: Perhaps a quarter of the overt cooperating plea deals came with witness protection language. The concerns about Straka’s safety are not hypothetical. The riot was created by people who already had threatened violence, including the militias Roger Stone cooperated with and QAnoners like the Mike Flynn fan who threatened DC judges presiding over earlier Trump-related cases.

Consider, Randy Credico’s first contact with the FBI in 2018, before he was interviewed by agents, was a Duty to Warn contact because they had learned the militias associated with Roger Stone — the same ones that have both been charged with seditious conspiracy in relation to January 6 — were discussing action against him.

Here, someone closely networked into the same crowd like Straka threatened to expose the literal overlap between those militias and some of the most powerful people in the country.

I’m still not sure whether Straka is a liar who provided limited cooperation to avoid prison time or whether his information was as useful as the government claimed at sentencing.

What I am sure is that my assertions that such misdemeanor plea deals exist has been confirmed, even if the government has learned how costly sealing mistakes can be for the secrecy of such cooperation.

Update: As Sandwichman suggests, there are reports that Straka is doing a performance of being a Jan6er in jail. This feels a lot like Jerome Corsi’s apparently successful efforts during the Mueller investigation to make his testimony useless.

Yesterday, DOJ filed suit against Peter Navarro for violating the Presidential Records Act by failing to provide the National Archives with the contents of his personal ProtonMail account on which he did official business.

It’s a nifty lawsuit. After laying out that he’s a Covered Person under the Presidential Records Act for the entirety of the Trump Administration, then laying out the requirement that copies of any presidential business conducted on non-official accounts be shared with the Archives, it then describes how Navarro didn’t comply with the PRA specifically as regards (at least) a ProtonMail account he used.

6. While serving in the White House, Mr. Navarro used at least one non-official email account—an account hosted by the non-official service ProtonMail—to send and receive messages constituting Presidential records.

7. Mr. Navarro did not copy each email or message constituting Presidential records that was sent or received on his non-official account or accounts to his official government email account.

8. Following the end of the Trump Administration, the Archivist, through the General Counsel of the NARA, attempted to contact Mr. Navarro to secure the Presidential records that Mr. Navarro had not copied to his government email account. Mr. Navarro did not respond to NARA’s communications.

9. Prior to filing this suit, in an effort to avoid litigation, Department of Justice counsel contacted Mr. Navarro by email and United States mail to secure the Presidential records that Mr. Navarro had not copied to his government email account. Discussions with Mr. Navarro’s counsel to secure the return of Presidential records ultimately proved unsuccessful. Mr. Navarro has refused to return any Presidential records that he retained absent a grant of immunity for the act of returning such documents.

DOJ is very coy about the timing of all this. Possibly, when they asked Navarro to comply, they didn’t know about the ProtonMail account. But since then — and since the time Navarro very loudly lawyered up after being charged in contempt — DOJ asked Navarro for the material he hadn’t shared.

And Navarro, now represented by counsel, responded that he wouldn’t share the emails unless DOJ immunized him for any criming he did on ProtonMail. In response to which, DOJ very politely informed Navarro that by law, those ProtonMails, including any evidence of criming he did on them, are the property of the Federal Government.

The PRA is notoriously toothless for forcing your Navarro or Ivanka or Jared or Meadows types who refuse to use official accounts for Federal business. (Though Andrew McCabe made sure to apply some teeth to the PRA with Jared and Dan Scavino within days after the Biden inauguration; records were not archived properly for others, including Kellyanne Conway and Kayleigh McEnany.) It is toothless, that is, until such time as the affirmative refusal to comply with it could be deemed obstruction of a criminal investigation, the kind of criminal investigation that Navarro may have specifically in mind when he demanded immunity for giving what DOJ maintains is Federal property to the people who own it.

Maybe Navarro, now represented by counsel, thinks that whatever criming he did on his ProtonMail account carries a greater criminal penalty than obstruction would.

This lawsuit is similar to a lawsuit against Steve Wynn to get him to register under FARA, but one on which the legal issues are likely to be much clearer. If and when DOJ wins the lawsuit, they can then charge the person with violating the underlying law, which in the Wynn case might have real teeth.

But they may not have to wait that long with Navarro. They’ve laid a case that Navarro is withholding materials in an effort to withhold evidence of criming from NARA. Who knows? Perhaps his new lawyer will rethink the wisdom of demanding immunity.

As interesting as the fact that DOJ sued Navarro is, it is just as interesting that they have not, yet, sued Ivanka and Mark Meadows, both of whom had similarly failed to turn over the contents of their personal accounts to NARA by the time the January 6 Committee came looking for them. Unlike Navarro, though, both showed signs of trying to comply last year.

The fact that DOJ hasn’t sued Ivanka and Meadows may suggest that a great deal of incriminating data for DOJ’s investigation of January 6 has now been delivered to NARA, where DOJ can obtain it with covert warrants that shield its investigation.

Since April, the SDNY investigation into whether Rudy Giuliani worked as an unregistered foreign agent for Yuri Lutsenko has gone dark. I thought it possible that it had reached a dead end, but figured we’d learn if that were true when Rudy’s lawyer, Robert Costello, noisily announced that prosecutors told Rudy he was no longer a subject of the investigation.

Costello gave a version of that announcement yesterday to the NYT and at least one other outlet.

Only, he didn’t announce that prosecutors had told him Rudy was no longer a subject. On the contrary, Costello appears to confirm that Rudy remains a subject of investigation at SDNY. Costello used a different event — the return of Rudy’s seized devices — as his basis for saying he probably won’t be charged in the Lutsenko inquiry.

Because a broad swath of people routinely misrepresent what I have or am saying about Rudy, let me be very clear: I have no reason to doubt the NYT reporting or Costello’s claim that the investigation that Jeffrey Rosen intentionally circumscribed in 2020 into whether Rudy failed to register for his work for Ukrainian official Yuri Lutsenko will likely not result in charges.

But the specifics of what Costello said and did not say are of interest.

Before I look at what Costello said, a reminder that SDNY seized Rudy’s devices in April 2021. In September, they got Judge Paul Oetken to approve their preferred scope for a Special Master review of Rudy’s phones to include for review everything, regardless of subject, after January 1, 2018. In November and January, Special Master Barbara Jones turned over materials to the government. Half of the devices she reviewed covered just a focused period specific to the Ukraine investigation December 1, 2018 through May 31, 2019; the rest covered the entire period of review, January 1, 2018 through the April 2021 seizure. After Jones finished her privilege review, the material she turned over would be scoped (meaning, sorted for the material that matched the warrant(s) against Rudy) by the FBI. Jones’ last publicly posted report actually showed that the review of the single phone seized from Victoria Toensing’s phone was ongoing, with the involvement of Dmitry Firtash. Firtash had been represented by Toensing when the phone was seized but is now represented (again) by Lanny Davis. The last we heard from Jones in this case on January 21, she said, “I will confer with the Government and counsel for Mr. Giuliani and Ms. Toensing regarding additional review assignments.”

In March, in the related SDNY counts, Lev Parnas filed to change his plea on the remaining charge against him and pled guilty on March 29. At a sentencing hearing on June 29 where the government scoffed at Parnas’ claims of cooperation and associated media blitzes, Judge Oetken sentenced Rudy’s former associate to 20 months in prison. That’s relevant because one identifiable source for yesterday’s NYT story was Parnas, who in fact telegraphed something was coming the day before. Parnas, it seems, has reason to believe Rudy and he won’t be charged for his Lutsenko work (this work was actually included in Parnas’ original 2019 indictment, but was removed in 2020).

The day before Parnas telegraphed such a story was coming, DOJ asked to unseal a July 29, 2021 Oetken opinion finding that a communication describing efforts that Alexander Mikhalev was making to hide his role in influence-peddling relating to some cannabis businesses in the US was crime-fraud excepted.

I believe what’s left was for Igor and Lev to establish who is going to be shareholder(s) of the NewCo and could we all use LLC’s as our proxy’s in it. I am just trying to establish core structure and how transparent should Andrey be exposed for the benefits of NewCo Transparency, his Russian roots and current political paranoia about it.

My wildarse guess is DOJ wants this unsealed so a different Federal entity can use the email to sanction Mikhalev for foreign influence peddling, but that’s just a WAG. SDNY’s letter asking for the unsealing reflects having obtained permission from Parnas’ attorney before the unsealing, so even though SDNY believes Parnas unreliable for the way he blabs to the press, there was recent communication with him on this point.

Back to Rudy. When last we heard, in April, CNN reported that SDNY might soon reach a charging decision on Rudy’s case because he provided investigators some possible passwords for several (the numbers here are inconsistent with the Special Master’s numbers) of the phones FBI couldn’t unlock.

Federal prosecutors may soon reach a charging decision regarding Rudy Giuliani’s foreign lobbying efforts involving Ukraine, after he helped investigators unlock several electronic devices that were seized by the FBI, according to multiple sources familiar with the probe.

Giuliani has also offered to appear for a separate interview to prove he has nothing to hide, his lawyer told CNN, renewing a proposal that federal prosecutors have previously rebuffed.

That, CNN’s sources claimed three months ago, could lead to a quick decision.

In recent weeks, Giuliani met with prosecutors and during the meeting he assisted them in unlocking three devices that investigators had been unable to open, according to people familiar with the investigation. It is unclear if Giuliani also answered questions from investigators during this meeting.

Giuliani provided a list of possible passwords to two other locked devices, the people said. Is it unknown if those passwords successfully unlocked those devices and how much relevant material is on the recently unlocked devices.

Now that several more devices are unlocked, that could speed up the review and ultimately lead to a quick decision over whether the former mayor of New York will face criminal charges. Unless new information comes to light that leads to new routes for authorities to pursue, federal prosecutors at the US Attorney’s Office in the Southern District of New York — which Giuliani led in the 1980s — are likely to decide whether to bring charges soon after the review, people familiar with the matter told CNN.

Even then, the anonymous sources talking about Rudy’s case suggested he would only be charged if new information came to light.

That claim showed up in yesterday’s NYT story, as well: DOJ had enough to seize Rudy’s devices, but found no smoking gun. Yesterday’s piece even linked the CNN story from April, which had suggested Rudy had met with prosecutors “in recent weeks,” but this time dating the meeting to February, so months before CNN reported that a recent event meant a decision was imminent and at least five months ago from today, and clarifying that Rudy had answered prosecutors’ questions.

One key new piece of news, however, was that DOJ had recently returned Rudy’s devices.

While prosecutors had enough evidence last year to persuade a judge to order the seizure of Mr. Giuliani’s electronic devices, they did not uncover a smoking gun in the records, said the people, who spoke on the condition of anonymity to discuss a federal investigation.

The prosecutors have not closed the investigation, and if new evidence were to emerge, they could still pursue Mr. Giuliani. But in a telling sign that the inquiry is close to wrapping up without an indictment, investigators recently returned the electronic devices to Mr. Giuliani, the people said. Mr. Giuliani also met with prosecutors and agents in February and answered their questions, a signal that his lawyers were confident he would not be charged.

We can assume that detail — that DOJ returned Rudy’s devices — likely came from Robert Costello because (as happens increasingly these days), another outlet — Reuters — quoted Costello on the record saying what NYT had granted someone anonymity to share.

FBI agents recently returned the cell phones and other electronic devices they had seized from Donald Trump’s former attorney Rudy Giuliani, in a possible sign the investigation into whether he failed to register as a foreign agent of Ukraine could be winding down, his attorney said on Wednesday.

Robert Costello, Giuliani’s lawyer, told Reuters he has not been officially notified yet whether federal prosecutors in Manhattan are closing the investigation.

But he said the return of the devices is a positive sign for his client.

“I have not been officially told that its [sic] over,” Costello said. “It is possible they could make some startling new discovery…but we have always been confident that he didn’t do anything wrong.”

The primary other new piece of news in the NYT story describes documents and texts — the likes of which have recently been returned to Robert Costello — detailing a purported review of Rudy’s contacts with Dmitry Firtash that started in June 2019.

Mr. Giuliani began contacting Mr. Firtash’s lawyers in June 2019 seeking information about corruption in Ukraine, around the time Mr. Trump was pressing Ukraine’s president, Volodymyr Zelensky, to investigate the Bidens. Mr. Firtash’s lawyers told Mr. Giuliani they did not know of anything relevant.

There is no indication Mr. Firtash assisted Mr. Giuliani in his attacks on the Bidens, and Mr. Davis said the oligarch “categorically denies ever helping Giuliani or anyone else in any effort to dig up dirt.”

Even so, in the summer of 2019, an associate of Mr. Giuliani, Lev Parnas, met with the oligarch and recommended he add new lawyers to his team, the husband and wife, who were helping Mr. Giuliani dig into the Bidens. Mr. Parnas was paid to serve as their interpreter, and Mr. Firtash agreed to pay for some of Mr. Parnas’s travel expenses.

The offer seemed ideal. Around this time, Mr. Giuliani was preparing to go to London, and wanted to determine who would cover his travel. “Running into money difficulties on trip to London,” Mr. Giuliani wrote to Mr. Parnas in a text message.

During the trip in late June, Mr. Giuliani met in a hotel conference room with some Firtash associates, including a banker whose cousin was a Burisma executive.

Mr. Davis said the purpose of the meeting was to discuss Mr. Firtash’s contention that his extradition was politically motivated, and his associates did not talk about Burisma. The oligarch’s associates did not seek Mr. Giuliani’s help, Mr. Davis added.

That day, Mr. Giuliani upgraded hotels to the Ritz London. Mr. Firtash’s company, Group DF, later covered the roughly $8,000 stay, interviews and records show. The next month, the company paid $36,000 for a private flight Mr. Giuliani took from the Dominican Republic to Washington. And that August, Mr. Giuliani traveled with a friend and a bodyguard to Spain at a cost of more than $30,000, an expense that was listed on an invoice to a Group DF assistant and a longtime adviser to Mr. Firtash.

Mr. Costello said that Mr. Giuliani “doesn’t know how it came about.”

Note: Much if not all of this activity pertaining to Firtash post-dates the temporal scope, which ended on May 31, 2019, of Jones’ prioritized reviews. For eight of Rudy’s phones, the privilege review would not (based on public records, anyway) have been complete on materials after that period when Rudy met with prosecutors in February. The material would be in the temporal scope of the known warrants, which extend through December 2019, but not the Special Master review of eight devices.

Firtash’s name also didn’t appear in Parnas’ description of the scope of the inquiry that he released via redaction fail last year.

In a chart, the Government identified that it had sought and seized a variety of undisclosed materials from multiple individuals, including: the iCloud and e-mail accounts of Rudolph Giuliani (11/04/19); the iCloud account of Victoria Toensing (11/04/19); an email account believed to belong to former Prosecutor General of Ukraine, Yuriy Lutsenko (11/6/19); an e-mail account believed to belong to the former head of the Ukrainian Fiscal Service, Roman Nasirov (12/10/19); the e-mail account of Victoria Toensing (12/13/19); the iPhone and iPad of pro-Trump Ukrainian businessman Alexander Levin (02/28/2020 and 3/02/2020); an iCloud account believed to belong to Roman Nasirov (03/03/2020); historical and prospective cell site information related to Rudolph Giuliani and Victoria Toensing (04/13/2021); electronic devices of Rudolph Giuliani and Giuliani Partners LLC (04/21/2021); and the iPhone of Victoria Toensing.

If there were any SDNY investigation into Firtash, you would expect to see warrants targeting his cloud content as well. It wasn’t in the warrants that Parnas had seen at the time of seizure.

So one thing this story (which also relies on Firtash lawyer Lanny Davis as a source) does is compare notes between suspects about the scope of SDNY’s interest in Rudy’s contact with Firtash. As NYT notes, it actually reveals that the investigation into Rudy was  broader than previously known, and broader than the scope of the known warrants as described by Parnas.

In any case, what Costello told Reuters and presumably told NYT is that 1) he recently got these phones (content from which likely contributed to this story) back and 2) SDNY has not told him that Rudy is no longer a subject.

Generally, if DOJ seizes items as part of a grand jury investigation, they can keep them:

• So long as the grand jury investigation in which the property was seized is ongoing
• Until such time as FBI fully exploits the devices (that is, until they crack passwords and identify deleted content)
• During the pendency of a Special Master review
• For use in a charged prosecution if the validity of an extraction might otherwise be challenged

This response to Project Veritas’ efforts to get their phones back in a different SDNY investigation lays out the precedents in the District.  If the grand jury investigation is closed, the subject of the investigation gets their property back, and Rudy has gotten his property back. So Costello fairly concludes that the known grand jury investigation into Rudy has been closed.

The thing is, if those materials are used for any other investigation — particularly now that they’ve been reviewed for privilege with kind of involvement from Costello that would amount to stipulation about the accuracy of the exploitation — would not be shared around DOJ as actual devices, some imaginary bag of Rudy Giuliani’s many phones passed from FBI agent to FBI agent. They’d be shared, via separate warrant from separate grand jury investigations, on hard drives of the post-privilege review content.

Costello can say with some confidence the grand jury investigation opened in 2019 won’t result in charges. But he doesn’t have a good explanation for why even SDNY has not told him Rudy is no longer a subject.

A more interesting part of the timing, to me, is that before Rudy got his devices back, a different part of DOJ obtained two rounds of subpoena returns from at least a dozen people asking (among other things) for all their post-October 1, 2020 communications to, from, or involving Rudy Giuliani or Victoria Toensing. Some of the people receiving those subpoenas would be hostile witnesses, themselves possible suspects of a crime. DOJ started, though, with people who had refused to take part of the fake elector scheme, who presumably could be expected to fully comply with the subpoena, including providing any Signal, WhatsApp, ProtonMail, or Telegram communications that might otherwise be unavailable.

The FBI likely has enough sets of subpoena returns including Rudy’s comms to know what content should be on his phones from when he was helping to plot a coup.

That’s the kind of thing FBI might have wanted to check before they released Rudy’s phones, to know how aggressively they had to look for potentially deleted content on the devices.

It was a remarkable day in the Alex Jones trial.

After getting Jones to repeat claims he made under oath about not using email and never texting about Sandy Hook, Plaintiff’s lawyer Mark Bankston told Jones he knew he wasn’t telling the truth.

Do you know where I got this. Mr. Jones, did you know 12 days ago your attorneys messed up and sent me an entire digital copy of your entire cell phone, with every text message you’ve sent for the past two years? And when informed, did not take any steps to identify it as privileged, or protected in any way? And as of two days ago, it fell free and clear into my possession. And that is how I know you lied to me when you said you didn’t have text messages about Sandy Hook. Did you know that?

Jones bullshitted for a while. Bankston got Jones to agree he knew what perjury was. Judge Maya Guerra Gamble clarified that these materials had not been shared in discovery (Bankston made sure to get Jones to agree the emails he was asking about had no Bates stamp).

Effectively, Jones not only got exposed in the Sandy Hook lawsuit as lying.

But at a break, one of the plaintiff’s lawyers suggested they were going to share the phone with prosecutors.

You know what nobody’s thought about yet? What happens when that phone goes to law enforcement.

Obviously, given the timing, Jones’ exposure for January 6 would be the most obvious interest (DOJ already has Owen Shroyer’s phone, but Jones would have direct contacts that Shroyer would not).

But during discovery in this case, Jones sent child porn to lawyers for Sandy Hook.

Update: According to Dan Solomon, a journalist covering the trial live, the phone got put into a Dropbox folder both sides were using to share files.

Also here is what happened with Alex Jones’s cell phone, according to Mark Bankston: the phone’s contents were put in a Dropbox folder the two parties had been to using to exchange materials roughly ten days ago.

ABC got the scoop yesterday that Pat Cipollone has been subpoenaed in the January 6 investigation. Remember: under grand jury secrecy rules, only the recipient can share details of a subpoena (or, if the FBI delivers it, their neighbors).

Which is why I’m interested that the ABC story makes it clear that Cipollone’s lawyers “are expected to engage in negotiations around any appearance.”

A federal grand jury has subpoenaed former Trump White House counsel Pat Cipollone in its investigation into the Jan. 6 assault on the U.S. Capitol and efforts to overturn the 2020 election, sources with direct knowledge of the matter told ABC News.

The sources told ABC News that attorneys for Cipollone — like they did with the House select committee investigating the Jan. 6 attack on the Capitol — are expected to engage in negotiations around any appearance, while weighing concerns regarding potential claims of executive privilege.

This confirms a point I made yesterday: Cipollone is no more a reliable witness than nutjob Sidney Powell or nutjob Rudy Giuliani.

That’s because he is using frivolous Executive Privilege claims — made even after the Supreme Court ruled that Trump doesn’t have privilege here, and made by the White House Counsel, not the President’s own lawyer — to avoid disclosing the content of things he said directly to the President.

And there’s no reason for a buttoned down lawyer like Cipollone to reveal his grand jury testimony, along with claims he’s going to sustain his frivolous privilege claims, unless he wants to reassure Trump.

I keep suggesting that Cipollone may know he has his own exposure. He would have been involved in all the pardons Trump gave save, perhaps, Steve Bannon’s last minute one. And there’s good reason to believe those pardons included quid pro quos that bought cooperation in the insurrection.

Fresh off giving Andrew Weissmann a platform to complain that DOJ’s multi-spoked investigation into January 6 should be multi-spoked, fresh off giving Adam Schiff an opportunity to make the (still-uncorrected) false claim that Congress never gets ahead of DOJ on parts of investigations they’re conducting in parallel, Ari Melber rolled out a schema (one, two) about his understanding of Trump’s corrupt acts that others have found really helpful.

It came with a nifty, mostly-accurate graphic that shows how multiple attempts to stay in power worked in parallel.

That graphic is helpful for those trying to keep track of all the efforts Trump pursued.

But Ari’s “special report,” which he claims is “built on evidence, not anything but evidence,” is most useful for demonstrating the evidentiary hole in the middle of his understanding of events leading up to January 6. And not just his understanding: also my own, and (at least based off their hearings) even the January 6 Committee’s. Neither Ari, the Committee, nor I, nor anyone I know to be investigating — save possibly DOJ and one or two really well sourced journalists — knows for certain what happened between the end of the December 18, 2020 meeting where Sidney Powell pitched Trump on a plan to seize voting machines and Trump’s December 19 tweet that led Stop the Steal plotters to start taking steps that led to a violent attack on the Capitol.

Before I lay out how well Ari illustrates that evidentiary hole, there are multiple things that Ari gets wrong (I’ve put my transcription of the most important parts of his presentation below). Most have to do with Ari’s apparent misunderstanding of how the blue collar violent attack on the Capitol related to the white collar parts of the coup attempt he has familiarity with.

For example, he claims, without evidence, that Rudy Giuliani, Mark Meadows, and John Eastman wanted pardons, “totally separate from the January 6 violence.” But according to Cassidy Hutchinson, both Rudy and Meadows knew by January 2 that Trump planned to go to the Capitol and it might get “real, real bad.”

CASSIDY HUTCHINSON: As Mr. Giuliani and I were walking to his vehicles that evening, he looked at me and said something to the effect of, Cass, are you excited for the 6th? It’s going to be a great day. I remember looking at him saying, Rudy, could you explain what’s happening on the 6th? He had responded something to the effect of, we’re going to the Capitol.

It’s going to be great. The President’s going to be there. He’s going to look powerful. He’s — he’s going to be with the members. He’s going to be with the Senators. Talk to the chief about it, talk to the chief about it. He knows about it.

LIZ CHENEY: And did you go back then up to the West Wing and tell Mr. Meadows about your conversation with Mr. Giuliani?

CASSIDY HUTCHINSON: I did. After Mr. Giuliani had left the campus that evening, I went back up to our office and I found Mr. Meadows in his office on the couch. He was scrolling through his phone. I remember leaning against the doorway and saying, I just had an interesting conversation with Rudy, Mark. It sounds like we’re going to go to the Capitol.

He didn’t look up from his phone and said something to the effect of, there’s a lot going on, Cass, but I don’t know. Things might get real, real bad on January 6th.

Hutchinson also tied White House awareness of the militias now charged with seditious conspiracy with Rudy’s presence.

CASSIDY HUTCHINSON: I recall hearing the word Oath Keeper and hearing the word Proud Boys closer to the planning of the January 6th rally when Mr. Giuliani would be around.

As for Eastman, Mike Pence’s Counsel, Greg Jacob, accused Eastman in real time, as his family was worried whether Jacob would get out alive, of causing the “siege” on the Capitol by “whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law.”

[T]hanks to your bullshit, we are now under siege.

[snip]

[I]t was gravely, gravely irresponsible of you to entice the President of with an academic theory that had no legal viability, and that you well know we would lose before any judge who heard and decided the case. And if the courts declined to hear it, I suppose it could only be decided in the streets. The knowing amplification of that theory through numerous surrogates, whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law, has led us to where we are.

Judge David Carter’s opinion finding it likely Eastman and Trump conspired to obstruct the vote count included Trump’s effort to send the mob, which we now know he knew to be armed, to the Capitol.

President Trump ended his speech by galvanizing the crowd to join him in enacting the plan: “[L]et’s walk down Pennsylvania Avenue” to give Vice President Pence and Congress “the kind of pride and boldness that they need to take back our country.”218

So all of these three men, per key witnesses and one judge, have legal exposure that is directly tied to the violence at the Capitol. Maybe they only wanted pardons for their white collar crimes, but — according to the evidence — all are implicated in the blue collar crimes.

Ari also treats the consideration of a plan to have DOD seize the voting machines as “the military plot,” one that ended on December 18. There are two problems with this. First, Ari ignores that this plan was revised to put DHS in charge of seizing the machines, which is how the plan resurfaced on December 31, when Trump serially tried to get DOJ and DHS to seize the machines.

ADAM KINZINGER: Mr. Rosen, the President asked you to seize voting machines from state governments. What was your response to that request?

JEFFREY A. ROSEN: That we had — we had seen nothing improper with regard to the voting machines. And I told him that the — the real experts that had been at DHS and they had briefed us, that they had looked at it and that there was nothing wrong with the — the voting machines. And so that was not something that was appropriate to do.

ADAM KINZINGER: There would be no factual basis to seize machines. Mr. Donoghue —

JEFFREY A. ROSEN: — I — I don’t think there was legal authority either.

ADAM KINZINGER: Yeah. Mr. Donohue can you explain what the President did after he was told that the Justice Department would not seize voting machines?

RICHARD DONOGHUE: The President was very agitated by the Acting Attorney General’s response. And to the extent that machines and — and the technology was being discussed, the Acting Attorney General said that the DHS, Department of Homeland Security, has expertise in machines and certifying them and making sure that the states are operating them properly.

And since DHS had been mentioned, the President yelled out to his Secretary get Ken Cuccinelli on the phone. And she did in very short order. Mr. Cuccinelli was on the phone. He was the number two at DHS at the time. It was on the speakerphone, and the President essentially said, Ken, I’m sitting here with the Acting Attorney General.

He just told me it’s your job to seize machines and you’re not doing your job. And Mr. Cuccinelli responded.

More importantly, Ari ignores that both militias charged with sedition and a goodly number of other armed rioters believed that larger scale violence would break out (possibly via clashes with counter-protestors, possibly in response to the GOP attempt to steal votes at the Capitol) on January 6, which would create the excuse for Trump to invoke the Insurrection Act to accord legal authority to the mob to act on his behalf. That will literally be Stewart Rhodes’ defense against a sedition charge, that he expected his attack on the US to come with Trump’s legal sanction.

And the plan may have gone further than that. To the extent that Trump asked the National Guard to be prepared for January 6, it was to protect his supporters, not to protect the Capitol.

Mr. Meadows sent an email to an individual about the events on January 6 and said that the National Guard would be present to ‘‘protect pro Trump people’’ and that many more would be available on standby.

When reports that the Guard would deploy first started to come out on January 6, Proud Boy Charles Donohoe [now a cooperating witness] reacted with surprise that the Guard would attack, rather than protect, Trump supporters.

That is, the actual plans for a military coup, rather than a Sidney Powell plan that Trump rejected then revisited, envisioned having armed Trump supporters and the National Guard holding the Capitol together. It was a plan that multiple militia members — most notably Rhodes, which forms a key part of the sedition evidence against him — but even joined by some members of Congress continued to pursue after January 6. There was a military plot that was far worse than the one that Ari labels as “that very bad red illegal plan,” but to understand it, you need to understand what happened at the Capitol, and what plans continued for weeks — still continue!! — after, per Ari, the violence “ended within one day.”

On top of a lack of understanding of what actually happened at the Capitol, Ari’s scheme includes conflicting claims. Ari claims that after Trump chose not to pursue Sidney Powell’s plan on December 18, he turned to “muscle.” “So that’s when I bring muscle to January 6.” His nifty graphic shows the plans to “sabotage Jan. 6” (adopting an utterly bizarre word, “sabotage,” which whitewashes both the violence planned and the legal crime, obstruction, committed) started right then, on December 19. But then, after claiming that Trump turned to “muscle” starting on December 19, Ari suggests that Trump’s only agency in the violence that ensued was the speech he gave on January 6. “The law makes it hard to pin an insurrection on one speech.”

In his presentation, at least, Ari ignores that “muscle” had been a part of the plan from the start, with operatives forming mobs at counting locations in the swing states that in turn created the cover for the fake electors plot and elicited threats against election officials, and it continued through to January 6 and beyond.

This may stem from an unfortunate unevenness on the part of the January 6 Committee.

The seventh hearing — the one purportedly focused on the rioters — depicted the actions of Ali Alexander and Alex Jones as an organic response to Trump’s December 19 tweet.

Donald Trump issued a tweet that would galvanize his followers, unleash a political firestorm, and change the course of our history as a country. Trump’s purpose was to mobilize a crowd. And how do you mobilize a crowd in 2020? With millions of followers on Twitter, President Trump knew exactly how to do it. At 1:42 AM on December 19, 2020, shortly after the last participants left the unhinged meeting, Trump sent out the tweet with his explosive invitation.

Trump repeated his big lie and claimed it was “statistically impossible to have lost the 2020 election” before calling for a big protest in DC on January 6th, be there, will be wild. Trump supporters responded immediately. Women for America First, a pro-Trump organizing group, had previously applied for a rally permit for January 22nd and 23rd in Washington, DC, several days after Joe Biden was to be inaugurated.

But in the hours after the tweet, they moved their permit to January 6th, two weeks before. This rescheduling created the rally where Trump would eventually speak. The next day, Ali Alexander, leader of the Stop the Steal organization and a key mobilizer of Trump supporters, registered Wildprotest.com, named after Trump’s tweet.

Wildprotest.com provided comprehensive information about numerous newly organized protest events in Washington. It included event times, places, speakers, and details on transportation to Washington DC. Meanwhile, other key Trump supporters, including far right media personalities, began promoting the wild protest on January 6th. [Begin videotape]

ALEX JONES: It’s Saturday, December 19th. The year is 2020, and one of the most historic events in American history has just taken place. President Trump, in the early morning hours today, tweeted that he wants the American people to march on Washington DC on January 6th, 2021.

That hearing similarly implied that Oath Keeper Kelly Meggs’ efforts to set up an alliance between the militias, which undoubtedly started at least days earlier, was a response to Trump’s tweet.

On December 19th at 10:22 a.m., just hours after President Trump’s tweet, Kelly Meggs, the head of the Florida Oath Keepers, declared an alliance among the Oath Keepers, the Proud Boys and the Florida Three Percenters, another militia group.

He wrote, we have decided to work together and shut this shit down. Phone records obtained by the Select Committee show that later that afternoon, Mr. Meggs called Proud Boys leader Enrique Tarrio, and they spoke for several minutes. The very next day, the Proud Boys got to work. The Proud Boys launched an encrypted chat called the Ministry of Self-defense.

That is, in places, the Committee encouraged this notion that everything pivoted on December 19 after that tweet.

But elsewhere, the Committee made it clear that the “muscle” and the militia were part of the plan from the start. Its fourth hearing on the Big Lie, for example, made clear that the earlier mobs were led by the very same people who seemingly sprung to action in response to Trump’s December 19 tweet.

[Ali Alexander]:

Let us in. Let us in. Let us in. Special session. Special session. Special session. We’ll light the whole shit on fire.

NICK FUENTES:

What are we going to do? What can you and I do to a state legislator besides kill him? Although, we should not do that. I’m not advising that, but I mean what else can you do? Right?

UNKNOWN:

The punishment for treason is death.

[End Videotape]

ADAM SCHIFF:

The state pressure campaign and the danger it posed to state officials and to State Capitols around the nation was a dangerous precursor to the violence we saw on January 6th at the US Capitol.

[snip]

The Select Committee has uncovered evidence in the course of our investigation that at stop the steal protests at state capitols across the country, there were individuals with ties to the groups or parties involved in the January 6th attack on the US Capitol. One of those incursions took place in the Arizona House of Representatives building, as you can see in this footage.

This is previously undisclosed video of protesters illegally entering and refusing to leave the building. One of the individuals prominently shown in this video is Jacob Chansley, perhaps better known as the QAnon Shaman. This rioter entered the Capitol on January 6th, was photographed leaving a threatening note on the dais in the US Senate chamber, and was ultimately sentenced to 41 months in prison after pleading guilty to obstruction of an official proceeding. Other protesters who occupied the Arizona House of Representatives building included — included Proud Boys, while men armed with rifles stood just outside the entrance.

And different parts of the seventh hearing showed that these ties are much better established, including through Roger Stone’s Friends of Stone listserv that started plotting immediately after the election.

Raskin: In the same time frame, Stone communicated with both the Proud Boys and the Oath Keepers regularly. The committee obtained encrypted content from a group – – from a group chat called Friends of Stone, FOS, which included Stone, Rhodes, Tarrio and Ali Alexander.

The chat focused on various pro-Trump events in November and December of 2020, as well as January 6th. As you can see here, Stewart Rhodes himself urged the Friends of Stone to have people go to their state capitols if they could not make it to Washington for the first million MAGA March on November 14th. These friends of Roger Stone had a significant presence at multiple pro-Trump events after the election, including in Washington on December the 12th. On that day, Stewart Rhodes called for Donald Trump to invoke martial law, promising bloodshed if he did not.

[snip]

JAMIE RASKIN: Encrypted chats obtained by the Select Committee show that Kelly Meggs, the indicted leader of the Florida Oath Keepers, spoke directly with Roger Stone about security on January 5th and 6th. In fact, on January 6th, Stone was guarded by two Oath Keepers who have since been criminally indicted for seditious conspiracy.

One of them later pleaded guilty and, according to the Department of Justice, admitted that the Oath Keepers were ready to use, quote, lethal force if necessary against anyone who tried to remove President Trump from the White House, including the National Guard. As we’ve seen, the Proud Boys were also part of the Friends of Stone Network.

Stone’s ties to the Proud Boys go back many years. He’s even taken their so-called fraternity creed required for the first level of initiation to the group.

[snip]

Katrina Pierson, one of the organizers of January 6th rally and a former campaign spokeswoman for President Trump, grew increasingly apprehensive after learning that multiple activists had been proposed as speakers for the January 6th rally. These included some of the people we discussed earlier in this hearing.

Roger Stone, a longtime outside advisor to President Trump; Alex Jones, the founder of the conspiracy theory website Infowars; and Ali Alexander, an activist known for his violent political rhetoric. On December 30th, Miss Pierson exchanged text messages with another key rally organizer about why people like Mr. Alexander and Mr. Jones were being suggested as speakers at the President’s rally on January 6th. Ms. Pierson’s explanation was POTUS, and she remarks that the President likes the crazies.

Remember that the Committee cut a good deal of their presentation focused on the militia in that seventh hearing to integrate more of Pat Cipollone’s testimony, which I think was one of the more unsuccessful planning decisions the Committee made.

Even still, taken as a whole, the Committee shows that the network around Roger Stone, which linked Ali Alexander, Alex Jones, and other movement activists to the militias (Jones had his own long-standing ties to the militias, including his former employee Joe Biggs), was riling up crowds starting immediately after the election, took concrete steps seemingly in response to Trump’s December 19 tweet, and continued to do so on January 6.

I mean, Roger Stone has been doing this since 2000.

In his most recent schema at least, Ari ignores all of that. Stone, Alexander, the militias, go unmentioned, and Trump’s role in the violence is limited to a single speech.

Which brings me back to the evidentiary gap that Ari and I share, seemingly in conjunction with the Committee.

In Ari’s telling, Donald Trump and Peter Navarro (with whom Ari has had a series of interviews) are the agents of this timeline. In his telling, Trump made an effort to “find a coup plotter” who would go further than his personal lawyer Rudy, who at least according to Hutchinson, had ties to the militias (though Powell is currently funding the legal defense of several Oath Keepers). Ari claimed that Powell was still on the campaign team, even though Rudy had explicitly and publicly stated she had no role on the campaign as early as November 22.

And Ari suggested that Trump adopted Powell’s plan, then either “back[ed] down” or “quit” it.

But as the January 6 Committee described it, it’s not really clear what happened; Pat Cipollone couldn’t even say whether Powell was appointed Special Counsel.

PAT CIPOLLONE: I don’t know what her understanding of whether she had been appointed, what she had been appointed to, Ok? In my view, she hadn’t been appointed to anything and ultimately wasn’t appointed to anything, because there had to be other steps taken. And that was my view when I left the meeting. But she may have a different view, and others may have a different view, and — and the president may have a different view.

To make matters worse, there are few if any credible witnesses here. Sidney Powell and her entourage (including Patrick Byrne, Mike Flynn, and an unnamed attorney) are batshit insane. So is Rudy. Cipollone, who gets treated as a grown-up, seems to be protecting Trump with his privilege claims. Meadows showed up later, but he’s a liar. Cassidy Hutchinson was texting details about the screaming and took a picture of Meadows escorting Rudy from the premises, but she is not known to have been in the meeting.

What seems common to all descriptions is that the Powell entourage showed up without an appointment and were let in by (as Ari notes) Peter Navarro aide Garrett Ziegler, though Patrick Byrne’s account describes two others being involved in their unplanned entry as well. That’s not a plan, it’s a pitch.

During the course of the meeting, Trump entertained the Powell plan because, he complained, Rudy and others were offering him nothing better.

UNKNOWN: So one of the other things that’s been reported that was said during this meeting was that President Trump told White House lawyers Mr. Herschmann and Mr. Cipollone that they weren’t offering him any solutions, but Ms. Powell and others were. So why not try what Ms. Powell and others were proposing? Do you remember anything along those lines being said by President Trump?

DEREK LYONS: I do. That sounds right.

ERIC HERSCHMANN: I think that it got to the point where the screaming was completely, completely out there. I mean, you got people walk in, it was late at night, had been a long day. And what they were proposing I thought was nuts.

RUDY GIULIANI: I’m gonna — I’m gonna categorically describe it as you guys are not tough enough. Or maybe I put it another way. You’re a bunch of pussies. Excuse the expression, but that — that’s I — I’m almost certain the word was used.

But the impression given by virtually all versions of this story (key versions linked below) is that by the end of the night, the White House lawyers and Rudy had mostly convinced Trump not to adopt this plan.

• December 19, 2021: NYT, Trump Weighed Naming Election Conspiracy Theorist as Special Counsel
• December 21, 2021: CNN, Heated Oval Office meeting included talk of special counsel, martial law as Trump advisers clash
• January 31, 2021: NYT, Trump Had Role in Weighing Proposals to Seize Voting Machines
• February 1, 2021: Patrick Byrne, How DJT Lost the White House, Chapter 3: Crashing the White House (December 18-22)
• February 1, 2021: Exclusive: Trump advisers drafted more than one executive order to seize voting machines, sources tell CNN
• February 2, 2021: Jonathan Swan, Bonus episode: Inside the craziest meeting of the Trump presidency
• July 12, 2022: January 6 Committee hearing

If that’s the case (and several people have backed that story under oath), this will be exculpatory if and when Trump ever goes to trial, not inculpatory. Entertaining a suspect idea — even the arguably legal one of appointing Jeffrey Clark to more aggressively pursue voter fraud claims, and especially a plan to seize the poll machines — but rejecting it on the advice of lawyers, even if Trump was persuaded to do so largely out of self-interest, is evidence someone is trying to stay inside the law, not break it. To be sure, there’s plenty of other evidence that Trump knowingly broke the law, but some of the most contentious meetings will actually be used in his defense. That just means prosecutors will find their proof of motive in places more directly tied to the crimes.

But the meeting accounts showing lawyers at least stalling on any decision about seizing the machines is where the trail goes dark.

No one has yet explained what happened between the time everyone left and the moment Trump’s tweet went out, and the understanding with which key planners adjusted their own timelines. Instead, we get narratives like Ari’s, or Jamie Raskin’s, that present the timing as proof that Trump took a third alternative — a pretty strong inference, undoubtedly — without an explanation of how the tweet got sent out or whether those involved knew where things would lead or who pitched Trump.

Not long after Sidney Powell, General Flynn, and Rudy Giuliani — Giuliani left the White House in the early hours of the morning, President Trump turned away from both his outside advisers’ most outlandish and unworkable schemes and his White House counsel’s advice to swallow hard and accept the reality of his loss.

Instead, Donald Trump issued a tweet that would galvanize his followers, unleash a political firestorm, and change the course of our history as a country. Trump’s purpose was to mobilize a crowd. And how do you mobilize a crowd in 2020? With millions of followers on Twitter, President Trump knew exactly how to do it. At 1:42 AM on December 19, 2020, shortly after the last participants left the unhinged meeting, Trump sent out the tweet with his explosive invitation.

Trump repeated his big lie and claimed it was “statistically impossible to have lost the 2020 election” before calling for a big protest in DC on January 6th, be there, will be wild. Trump supporters responded immediately. Women for America First, a pro-Trump organizing group, had previously applied for a rally permit for January 22nd and 23rd in Washington, DC, several days after Joe Biden was to be inaugurated.

But in the hours after the tweet, they moved their permit to January 6th, two weeks before. This rescheduling created the rally where Trump would eventually speak. The next day, Ali Alexander, leader of the Stop the Steal organization and a key mobilizer of Trump supporters, registered Wildprotest.com, named after Trump’s tweet.

Wildprotest.com provided comprehensive information about numerous newly organized protest events in Washington. It included event times, places, speakers, and details on transportation to Washington DC. Meanwhile, other key Trump supporters, including far right media personalities, began promoting the wild protest on January 6th. [Begin videotape]

It appears that both Powell’s contingent and Rudy left after midnight, with Meadows and Rudy together alone as Rudy left. Less than two hours later, that tweet went out, a tweet that was demonstrably central to both the organized and disorganized mobilization of the mob, one that has long been a focus of DOJ’s prosecutions (proof, among other proof, that Ari’s claim that DOJ has only focused on January 6 and the days immediately before it is false).

It’s certainly possible that after everyone left Peter Navarro came in, or maybe just Ziegler, and presented an alternative plan, a mob, but Ari presents no evidence that happened and it’s unlikely either Ziegler or Navarro would have been silent about their role in it. It’s more likely that Rudy and Meadows agreed they had to offer Trump another alternative, and they settled on January 6 (certainly, Meadows had advanced knowledge of Rudy’s plans for January 6). It’s possible that Trump had a late night call with someone else — Roger Stone or Bannon, maybe — who operationalized what came next. Maybe the dim-witted Meadows came up with the plan by himself.

Meadows, who refused to cooperate with the Committee, surely knows. Dan Scavino, who refused to cooperate, spent four years knowing what led up to most every tweet that Trump sent out. He also must know.

And while Ari doesn’t appear to know and I don’t either and the Committee doesn’t explain it if they know the answer, the one other place one might learn the answer is from those who turned existing infrastructure — the Stop the Steal effort, the permits — towards planning for January 6 (both of which DOJ has issued grand jury subpoenas to learn).

DOJ has been a bit coy about whether they know. That’s why I pointed to the remarkable use of the passive voice in Donohoe’s statement of offense in April, which virtually alone among January 6 filings obscures Trump’s role in announcing the riot on December 19, then turns immediately to Enrique Tarrio’s very hierarchical plan to instill discipline in the Proud Boys that didn’t exist at the December 12 MAGA March (the same trip to DC where Tarrio visited the White House as part of a Latinos for Trump visit).

On December 19, 2020, plans were announced for a protest event in Washington, D.C., on January 6, 2021, which protest would coincide with Congress’s certification of the Electoral College vote.

On or before December 20, 2020, Tarrio approached Donohoe and solicited his interest in joining the leadership of a new chapter of the Proud Boys, called the Ministry of Self Defense (“MOSD”). Donohoe understood from Tarrio that the new chapter would be focused on the planning and execution of national rallies and would consist of hand-selected “rally” boys. Donohoe felt privileged to be included and agreed to participate.

That happened “on or before” December 20, allowing for the possibility that the Proud Boys started to plan before Trump publicly announced the rally. Among other communications that DOJ likely has that the Committee has more limited access to are at least three versions of the Friends of Stone listserv (from Tarrio, Rhodes, and Owen Shroyer’s phones).

My instinct — based on all the evidence that these same people had been the muscle going back to the election — is that that’s where one could find the answer: Meadows, Scavino, Trump, Rudy, but also those who directed existing infrastructure towards January 6. But that’s just instinct. We still really don’t know for sure.

Presidents often adopt the plans of the last person in the room, and that’s probably more true with Trump than many of his predecessors. We know — or believe — that Sidney Powell and Rudy both left. Which means we don’t know who pitched Trump on the plan he ultimately adopted, the one that led directly to an attack on the Capitol.

There absolutely is a slew of evidence that that tweet made the difference, not just with the militias, but with disorganized conspirators and individuals who took Trump’s tweet as an order to make travel plans. It is absolutely the case that after that meeting, Trump took a fateful step (though that has been clear for at least a year). We just don’t know what led him to post that tweet.

Many of those people [Rudy, Meadows, Eastman] wanted pardons totally separate from the January 6 violence and that is important as we look at a different plot Trump’s effort to find a coup plotter would who go farther than Giuliani, his lawyer, Sidney Powell. She would go even farther. So the plan was to take her off the campaign team and try to install her inside the government to get the military to seize voting machines.

[snip]

Trump did back down on that very bad red illegal plan. And by the way, quitting an illegal coup would be a good thing, but this was the military plot: another conspiracy’s prong that hits a dead end. And this is key, because facing that dead end, late that same night of December 18th, Trump turned to the other plot pushed by Eastman and Navarro, posting what is by now an infamous tweet that announces the January 6 rally, beginning, quote, Peter Navarro releases 36-page report alleging election fraud ‘more than sufficient’ to swing victory to Trump. That was the lie Trump needed to build on when he summons the people to DC for the first time. Quote, big protest in DC on January 6th. Will be wild. Now that’s the first time Trump ever told supporters there was a place to come join this fight. And none of this happened in isolation. The evidence of Trump’s criminal intent is worse when all the facts are shown about the plot. Trump began the public operation to sabotage January 6 as a certified vote which was criminal, only after hitting this dead end in the failed plot to have the military help a coup. Now his lawyers warned him of the criminal issues here. Of the criminal intent and actions of that military plot. And he still moved, continuously, from that conspiracy to this one. Now, that’s damning evidence if prosecutors are indicting a broader conspiracy. And the White House aide connecting both plots is Navarro whose aide helped sneak in the military plotters there, then, he’s part of Trump’s January 6th announcement.

[A quote about seizing machines, ignores DHS]

This is something that Rudy Giuliani said would land them all in prison. Rudy Giuliani. He’s already lost his law license. We’ll see what else happens to him. But that is the context as we showed tonight: That when that fails, is the same time, the same night, that Donald Trump comes in and says, alright, I can’t abuse military power. I’m even being told by my most aggressive, lawless lawyers — the kind that he apparently prefers — that that’s not gonna work. So that’s when I bring muscle to January 6. But we have had, in this country, in our minds and apparently at the Justice Department as we reported tonight, a fixation on only looking here [post December 19]. On basically the 6th, or the lead-up to the 6th, or a few days out. And that’s understandable, given what we lived through. We’re human beings and the 6th was one of the worst attacks and one of the worst national security crises America has ever faced, from a domestic threat, let alone an incumbent outgoing President. The point tonight, which we’ve built on evidence, not anything but evidence, is that when you actually go all the way back, when you actually understand how this started, and how many different plots were pursued, thwarted, warned about, and then desperately doubled down upon, that goes to the criminal intent. Let me put it simply. Taken separately, some of these plots can be viewed like a gray area, clumsy plans that didn’t occur or the insurrection that exploded but also ended within one day. I’ll tell you something. The law makes it hard to pin an insurrection on one speech. As it should. But taken together, you have the evidence of this wider criminal conspiracy with criminal intent running across weeks if not more. Remember, in court, prosecutors have to prove criminal intent in a moment, just that you meant to do it. This is weeks of that with lawyers warning these were crimes, especially after the legal door was closed in mid-December when the Electoral College voted — everything after that, when it comes to overturning votes and installing fraudulent electors, that’s that illegal red zone. That’s where you see the evidence of several crimes. And taken together? Well, this evidence suggests the question is no longer whether there are any indictable election offenses here, but how prosecutors would explain a failure to indict and enforce the law and how that does risk letting the close call of this documented and attempted multi-prong coup conspiracy turn into a training exercise that American democracy may not survive.