January 6 Insurrection Archives - Page 4 of 64

Donald Trump Raises Conflict Concerns about His Mike Flynn Pardon

October 22, 2023/86 Comments/in 2020 Presidential Election, January 6 Insurrection, Mueller Probe /by emptywheel

The data mules for Trump’s latest tirade seem to think his claims that Sidney Powell was never his lawyer are all an attempt to deny he ever took legal advice from Powell in the wake of her plea deal in Georgia.

But the substance of his tirade is far more interesting than that.

Trump doesn’t just claim that Sidney Powell was never his attorney — a claim that conflicts with claims Trump made in real time.

He says she would have been conflicted.

Immediately after Trump claims Sidney Powell would have been conflicted (because of what? Trump doesn’t say), the former President turns to the Thanksgiving pardon he gave to confessed agent of Turkey, Mike Flynn.

Trump implies he gave Flynn a pardon because, “He was an innocent man, much like many other innocent people who are being persecuted by this now Fascist government of ours.” But as we’ve just reviewed thanks to Flynn’s stupid lawsuit against DOJ, the pardon itself did not make that claim. Only a White House press release about the pardon did.

Plus, the pardon couldn’t have been based on innocence, not entirely, anyway, because Flynn made false statements in the process of reneging off his prior guilty plea to making false statements. It is quite literally impossible for Flynn to have been innocent of making any unlawful false statements, because the things he said in the process of reneging on his plea deal completely contradicted things he had said under oath earlier. The Flynn pardon was easily the most expansive of any pardons Trump gave (perhaps save the clemency for Roger Stone found in Trump’s desk drawer, which could pardon Stone for murdering someone on Fifth Avenue for all we know). It had to be written that broadly to prevent Judge Sullivan from referring Flynn for perjury before his court. The pardon covered not just the lies Flynn told the FBI on January 24, 2017, it also covered claims Flynn made before an EDVA grand jury and in plea colloquies before Sullivan.

So here we are, just days after DOJ submitted a response to Trump’s claim of absolute immunity that argued — among other things — that a presidential pardon given as part of a quid pro quo would be unlawful, and Trump is offering up not just that Sidney Powell wasn’t his attorney in November 2020 when he claimed she was, but that she would have been conflicted — apparently because of her representation of Mike Flynn! — from being his attorney.

In real time, I addressed the possibility that Trump’s public claims about whether Sidney Powell was or was not his attorney may have been an attempt to eliminate the conflict problem with Flynn’s pardon.

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

On November 15, Trump explicitly named Powell as part of his team. On November [19], Powell appeared at Rudy the Dripper’s press conference. On November 22, Rudy and Jenna Ellis made a show of cutting ties with her.

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

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

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

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

That was the publicly available timeline (and Maggie Haberman’s public explanation) when I wrote the post on November 27, 2020, just two days after the pardon.

But Trump’s January 6 indictment adds a few details to that timeline in the single solitary paragraph addressing Powell’s overt acts, which happens to be tucked away in the section on Georgia, the state where Powell just pled guilty.

On November 16, 2020, on the Defendant’s behalf, his executive assistant sent CoConspirator 3 and others a document containing bullet points critical of a certain voting machine company, writing, “See attached – Please include as is, or almost as is, in lawsuit.” CoConspirator 3 responded nine minutes later, writing, “IT MUST GO IN ALL SUITS IN GA AND PA IMMEDIATELY WITH A FRAUD CLAIM THAT REQUIRES THE ENTIRE ELECTION TO BE SET ASIDE in those states and machines impounded for non-partisan professional inspection.” On November 25, Co-Conspirator 3 filed a lawsuit against the Governor of Georgia falsely alleging “massive election fraud” accomplished through the voting machine company’s election software and hardware. Before the lawsuit was even filed, the Defendant retweeted a post promoting it. The Defendant did this despite the fact that when he had discussed CoConspirator 3’s far-fetched public claims regarding the voting machine company in private with advisors, the Defendant had conceded that they were unsupported and that Co-Conspirator 3 sounded “crazy.” Co-Conspirator 3’s Georgia lawsuit was dismissed on December 7.

Here’s how the timeline looks with the details from the indictment added in:

November 15: Trump says publicly Powell was part of his team
November 16: Nine minutes after Trump demanded lawsuits include attacks on Dominion, Powell orders that all forthcoming lawsuits include it: “IT MUST GO IN ALL SUITS IN GA AND PA IMMEDIATELY WITH A FRAUD CLAIM THAT REQUIRES THE ENTIRE ELECTION TO BE SET ASIDE”
November 19: Powell appears at the Rudy the Dripper press conference, looking far less embarrassing than the President’s lawyer, which didn’t stop Maggie Haberman from claiming that Powell’s appearance was the reason Trump was cutting Powell from his legal team
November 22: Jenna Ellis and Rudy make a big show of cutting ties with Powell
November 25: Having ordered that all lawsuits include the Dominion attack Trump ordered, Sidney Powell then files the first lawsuit including such an attack; on the very same day, Trump pardons her client and then starts disseminating her bullshit attacks on Dominion

At least according to the indictment, it all happens on the same day: The lawsuit attacking Dominion, the pardon, Trump’s celebration of the lawsuit attacking Dominion.

The indictment focuses on Trump’s claims that Powell was crazy — and up until now I have believed that’s in there as a guaranteed way to show that Trump was pushing lies he had disavowed.

But with Trump ranting about cooperating witness Sidney Powell’s conflicts, I’m no longer so sure.

Update: Fixed date of hair dye presser, h/t critter.

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

October 21, 2023/48 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, January 6 Insurrection, Mueller Probe /by emptywheel

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judge Karen Henderson May Not Believe Holding the Presidency Is a Professional Benefit

October 20, 2023/51 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

After much delay, the DC Circuit upheld the conviction of former cop Thomas Robertson, finding that he corruptly obstructed the vote certification on January 6 because he used otherwise unlawful means in obstructing the vote certification.

I won’t spend too much time unpacking it because it will be (and a related opinion already has been) appealed.

Florence Pan, writing the majority opinion for the second straight opinion upholding the application of 18 USC 1512(c)(2) to January 6, found that there was sufficient evidence to find that Robertson had “corruptly” obstructed the vote certification, based on his otherwise felonious conduct.

Karen Henderson ruled that instead, Pan’s earlier opinion upholding 1512(c)(2) — or rather, Justin Walker’s concurrence — is binding as to the standard for “corruptly,” which wasn’t before the court in that ruling.

But then having said Walker was binding, Henderson instead reinterpreted and significantly narrowed his standard requiring personal benefit that Walker espoused.

Here’s how Pan described Henderson’s gymnastics.

The dissent claims that we are bound by Judge Walker’s view that “corruptly” in § 1512(c)(2) requires the defendant to act with the intent of obtaining an unlawful benefit for himself or another. See Dissenting Op. 8–15. But in applying that standard, Judge Walker reasoned that the indictments at issue in Fischer should be upheld, stating that “it might be enough for the Government to prove that a defendant used illegal means (like assaulting police officers) with the intent to procure a benefit (the presidency) for another person (Donald Trump).” Fischer, 64 F.4th at 361 (Walker, J., concurring in part and concurring in the judgment). The dissent does not explain why that reasoning, in an opinion that the dissent believes is binding, does not dictate affirmance in this case.

Instead, the dissent contends that we must overturn the jury’s verdict in this case because “[t]here is no evidence in the record suggesting Robertson obstructed the election certification proceeding in order to obtain an unlawful benefit for himself or someone else.” Dissenting Op. 33. That is incorrect. Robertson believed that the election was “rigged”; announced that he refused to be “disenfranchised”; and declared that he was “prepared to start” an “open armed rebellion.” S.A. 110, 190. That evidence was plainly sufficient to support a finding that Robertson intended to secure the unlawful benefit of installing the loser of the presidential election, Donald J. Trump, as its winner. See Fischer, 64 F.4th at 361 (Walker, J., concurring in part and concurring in the judgment); see also id. at 356 n.5 (reasoning that “the beneficiary of an unlawful benefit need not be the defendant or his friends” and § 1512(c)(2) could apply to a defendant “trying to secure the presidency for Donald Trump”).

To shore up its assessment of the evidence, the dissent states in a footnote that “[t]he ‘unlawful benefit’ the defendant seeks must be financial, professional or exculpatory.” Dissenting Op. 34 n.18. But Judge Walker’s concurring decision in Fischer, which the dissent believes is binding, see id. at 1, did not endorse such a limited definition. See Fischer, 64 F.4th at 356 n.5 (Walker, J., concurring in part and concurring in the judgment). And Judge Walker himself emphasized that, even were the requisite “benefit” so limited, the defendants’ conduct “may have been an attempt to help Donald Trump unlawfully secure a professional advantage — the presidency,” so would likely suffice. Id. The dissent’s position, in any event, ignores the fact that it can be “corrupt” to obstruct an official proceeding for the purpose of gaining a personal, social, or political favor. See United States v. Brenson, 104 F.3d 1267, 1273–81 (11th Cir. 1997) (affirming defendant’s conviction under 18 U.S.C. § 1503 where he disclosed details of a grand jury investigation to its target in order to get a date with the target’s daughter).

In her opinion, Henderson seems to suggest that securing the presidency corruptly for Trump wouldn’t necessarily be a professional benefit for Trump.

18 The “unlawful benefit” the defendant seeks must be financial, professional or exculpatory. See, e.g., Marinello, 138 S. Ct. at 1105 (avoiding taxes); Aguilar, 515 U.S. at 595 (concealing wrongdoing through illegal disclosure of wiretap); North, 910 F.2d at 851 (fabricating false testimony and destroying documents); see also Corruptly (def. 2), Black’s Law Dictionary (11th ed. 2019) (“corruptly usu[ally] indicates a wrongful desire for pecuniary gain or other advantage”). Acquittal is thus required if, as I view the evidence, Robertson merely intended to protest the outcome of the election or his (perceived) disenfranchisement or to make some other political point. The majority mistakenly insists that my view conflicts with Judge Walker’s Fischer opinion. Maj. Op. 37–38.

On the contrary, Judge Walker did not decide how broadly to construe the “unlawful benefit” requirement. He merely stated that he was “not so sure” that the sought-after benefit must be “financial, professional, or exculpatory.” Fischer, 15 64 F.4th at 356 n.5 (Walker, J., concurring in part) (citation omitted). And even if this panel agreed with Judge Walker’s suggestion that the office of the President “may” qualify as “a professional benefit,” see id., we would remain free to conclude that there was no evidence presented at trial to show that Robertson intended—either alone or collectively—to procure that benefit. [my emphasis]

None of this matters.

The underlying Fischer decision has already been appealed. This will be appealed.

The biggest takeaway is that self-imagined conservatives keep reaching well beyond the decision before them to try to carve up obstruction in such a way that stealing an election is not corrupt.

Fani Willis Serves Up Cheese and Kraken

October 20, 2023/127 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Update: As Harpie and others noted in comments, in the hour since I’ve been taping with Nicole Sandler, Kenneth Chesebro pled guilty to a felony in GA.

Hours after the first 450 jurors appeared at the Fulton County Courthouse to fill out a questionnaire ahead of an expected monthslong trial where he faced seven felony counts, Chesebro and his attorneys pleaded guilty to a single felony charge of conspiracy to commit filing false documents.

Chesebro’s deal includes five years of probation, $5,000 in restitution to the secretary of state’s office, 100 hours of community service, a letter of apology, an agreement to testify in future trials and to hand over remaining documents and text messages to the district attorney’s office.

Here’s the colloquy.

As the news of Sidney Powell’s cooperation plea broke yesterday, there were people asking who could have predicted that Powell — the Kraken! — had turned state’s witness.

I laid out why she might flip back when the Georgia indictment came out.

One way the Georgia and federal indictments will interact is in the relative pressure between already being charged, in a state with strict pardon rules, and being not-yet charged, in a venue where Trump has pardoned his way out of criminal trouble in the past.

Five people are named as co-conspirators in both: Rudy (CC1 in the federal indictment), John Eastman (CC2), Powell (CC3), Jeffrey Clark (CC4) and Ken Chesebro (CC5).

Some of these people, like Sidney Powell, Trump might not consider pardoning in any case. Plus, Trump’s closest associates have spent the last week or so throwing her under the bus. But thus far at least, Powell’s personal legal risk is far greater in Georgia than federally.

Others, though, may think seriously about how much harder it would be to get a pardon for Georgia than a Federal indictment, where the next Republican President, possibly including Donald Trump, would be able to pardon them.

For Powell, more than anyone else, flipping was a wise option. She’s one of the five people charged in Georgia also described as co-conspirators in Jack Smith’s indictment (Boris Epshteyn is believed to be co-conspirator#6 in DC, but is being subpoenaed as a witness in Georgia).

All five are likely aware that loyalty in DC, which might win them a pardon if Trump wins in 2024, won’t save them in Georgia, where pardons are much harder to come by.

After Judge Scott McAfee rejected a Powell bid to dismiss the non-RICO charges against her, the decision to flip likely became a lot easier. The hacking charges with which she was charged were the most serious free-standing charges in the Georgia indictment.

Irrespective of what happens in DC, Powell traded cooperation and six years of probation — with the possibility of having the charges expunged — to avoid the possibility of serious state prison time that Trump couldn’t pardon away.

In any case, Powell is not among the insiders Trump would be quickest to pardon.

One thing about the decision: in spite of all the TV lawyers claiming she’ll make a terrible witness because she’s so batshit, this was an eminently rational decision. She sounded absolutely sane in yesterday’s plea hearing, as I imagine she did when he provided her videotaped testimony before pleading.

As to the question of whether that means Powell would cooperate in DC, it’s worth noting that we can’t even be sure we would know if she were cooperating. After all, few people covering the case account for the part of the investigation into Sidney Powell — for fundraising only tangentially related to any conspiracy with Trump — that was overt over two years ago, or the fact that Michael Flynn and Patrick Byrne had already underbussed her at that point. No one knows the full details about why she spent money raised in that fundraiser to fund the defense of people on the Oath Keepers (and probably others).

More importantly, those trying to imagine how her cooperation would impact Trump seem to imagine that we understand the entire nature of any such cooperation. As I noted in August, the indictment actually includes Powell for just one purpose: to prove that Trump took advice from someone he was publicly identifying as crazy.

[H]er role — as described — is actually very limited. Just one paragraph describes her actions:

20. On November 16, 2020, on the Defendant’s behalf, his executive assistant sent Co-Conspirator 3 and others a document containing bullet points critical of a certain voting machine company, writing, “See attached – Please include as is, or almost as is, in lawsuit.” Co-Conspirator 3 responded nine minutes later, writing, “IT MUST GO IN ALL SUITS IN GA AND PA IMMEDIATELY WITH A FRAUD CLAIM THAT REQUIRES THE ENTIRE ELECTION TO BE SET ASIDE in those states and machines impounded for non-partisan professional inspection.” On November 25, Co-Conspirator 3 filed a lawsuit against the Governor of Georgia falsely alleging “massive election fraud” accomplished through the voting machine company’s election software and hardware. Before the lawsuit was even filed, the Defendant retweeted a post promoting it. The Defendant did this despite the fact that when he had discussed Co-Conspirator 3’s far-fetched public claims regarding the voting machine company in private with advisors, the Defendant had conceded that they were unsupported and that Co-Conspirator 3 sounded “crazy.” Co-Conspirator 3’s Georgia lawsuit was dismissed on December 7.

Go back and look! Her most famous role — when she got cleared into the White House and told Trump he should make her Special Counsel and seize the voting machines — doesn’t appear at all. Indeed, my greatest disappointment with the indictment is that it doesn’t explain one of the enduring mysteries of January 6: what led Trump to adopt January 6 as his plan shortly after that meeting.

It describes Trump’s December 19 tweet — the tweet that triggered thousands of MAGAts to start planning a trip to DC — but not what led up to it.

Curse you, Jack Smith!!!

Aside from proving he knowingly lied, the indictment doesn’t really tell us why Powell plays such a central part of the case against Trump.

There are, however, two details that I think are being missed: First, Powell played a key role in Fox’s platforming of propaganda, as laid out in the Dominion lawsuit (after the Fox settlement, Dominion’s lawsuit against Powell moved into a more active phase).

Fox brought her on and off the campaign, and had a role in her conspiracy theories.

And while Powell appeared on Fox only four times when she was even arguably part of the President’s team, and six times when Fox was clearly aware that she was not. As important, Fox was instrumental in maneuvering Powell both into the Trump campaign and then out of it.

Third, Fox ignores its own role in developing the conspiracy theories it then aired See Dom. MSJ pp.39-44

These two claims — that Fox “maneuvered Powell … out of” the Trump campaign and that they played a role in developing these conspiracy theories, are discussed in heavily redacted passages of the earlier filing (probably redacted because Fox has claimed it pertains to internal business deliberations).

The first — describing how Fox “maneuvered Powell … out of” the Trump campaign after Tucker came under fire for questioning Powell — consists of almost four full paragraphs introduced with a description that Fox, including Tucker and Raj Shah, “mobilized.”

“We won the battle with Powell. Thank god,” the passage quotes a Tucker text later. Dominion is now explaining that that “battle” pertained to getting Powell ousted from Trump’s orbit.

The second claim — that Fox was the source of some of these conspiracy theories — incorporates the description of how Fox got Powell ousted from the campaign, but also includes redacted passages describing Lou Dobbs’ role in “promoting the narrative,” another making a redacted reference to Hannity, as well as the unredacted reference to Bartiromo chasing an email from Sidney Powell that Powell herself said relied on a “wackadoodle” source. The later filing suggests the earlier filing goes as far as saying that Fox played part in developing the conspiracy theories.

That includes a December 10 Lou Dobbs appearance in which Powell claimed there had been a cyber Pearl Harbor that undermined the vote.

Nonetheless, on the next day, December 10, Dobbs had Powell on again, where she repeated the false (and repeatedly debunked) story about the Smartmatic and Dominion machines being designed to flip votes to rig elections for Hugo Chavez,and allowing people to login and manipulate votes . See ¶179(q );Appendix D. But rather than questioning Powell’s claims, Dobbs attacked Attorney General Barr for saying he’d seen no sign of any significant fraud that would overturn the election and told Powell “We will gladly put forward your evidence that supports your claim that this was a Cyber Pearl Harbor,” noting “we have tremendous evidence already,” id. which he now admits was not true. See Ex.111,Dobbs 46:25-47:10,86:20-24 . Dobbs had seen no evidence from Powell, nor has he since. Id.

Powell had sent her claims about a “Cyber Pearl Harbor” to Dobbs (who forwarded to his team) in advance of the show. Ex.450;Ex.451. Prior to the show, Dobbs published a tweet to the @loudobbs Twitter account with the claim that “The 2020 Election is a cyber Pearl Harbor,” and embedding the very document Powell had sent to him just hours before which stated that Dominion was one off our entities that had “executed an electoral 9-11 against the United States” and “a cyber Pearl Harbor,” that “there is an embedded controller in every Dominion machine,” and that they had “contracts ,program details, incriminating information ,and history” proving these claims.¶179(p); Appendix D.

Later the same day, after Powell appeared on the 5pm broadcast and before the 7pm unedited rebroadcast of the show, Dobbs again tweeted “Cyber Pearl Harbor @SidneyPowell reveals groundbreaking new evidence indicating our Presidential election came under massive cyber-attack orchestrated with the help of Dominion, Smartmatic, and foreign adversaries.” ¶179(r); Appendix D. Dobbs conceded at his deposition that this tweet was false Powell had not presented any such evidence on his program that day. Ex.111,Dobbs 269 :2-271:5.

Claims like that were the basis not just of Powell’s lawsuits that provided Trump cover that the election remained undecided, but also of Powell’s sustained effort to obtain Dominion data from swing states, the crime to which she just pled guilty. It was tied to a bid for Trump to use Commander-in-Chief authorities to steal the election.

The Georgia indictment claims that crime started on December 1, 2020 and lasted at least through April 2021.

Indeed, the way in which this pursuit of data was a continuation of and continued after January 6 is one of the most chilling parts of Anna Bower’s account of it. Bower first lays out good reason to suspect that Cathy Latham — another of the charged co-conspirators in the Georgia indictment — was in the Willard Hotel consulting with people like Bernie Kerik.

On Dec. 17, Marilyn Marks, the executive director of Coalition for Good Governance—the election security organization that initiated the Curling suit—texted Latham. Through the election activism grapevine, Marks had heard about the supposed problems with Dominion machines in Coffee, she said in an interview with Lawfare. Something sounded “suspicious” about it all, she said, but she wanted to learn more. She spoke with elections board member Chaney, who suggested that she get in touch with Latham.

Marks texted the GOP chairwoman, explaining that her organization was involved in litigation to move away from the use of Dominion systems in Georgia. Marks asked when Latham might be available to chat. Latham replied: “I am in D.C. right now and am about to meet with IT guys.”

Latham would later admit under oath that she visited D.C. for an unspecified period sometime in December. But she did not confirm the reason she gave at the time. In her deposition, rather, she claimed that she traveled to the capital city because she had been invited to go on a “tour” by a woman named Juliana Thompson, because Latham hadn’t been able to go the previous year.

“We [got] to see the Christmas trees, and I got to go to the Bible Museum,” she explained.

When asked if she met with anyone who was not with the D.C. tour group, Latham replied, “I’m going to plead the Fifth on that.”

But if Latham was in D.C. only to tour the Museum of the Bible and see Christmas trees, why did she tell Marks that she was “about to meet with IT guys”?

And Latham did admit in her deposition that she stayed at the Willard Hotel during her trip.

“That’s where I slept,” she said.

If the Willard Hotel rings a Jan. 6 bell, that’s because it served as the “command center” for the legal arm of the Trump campaign led by Giuliani in this period of time. The rooms were organized and paid for by Bernie Kerik, the former police commissioner of New York City, who worked for the Giuliani legal team as an investigator. Kerik later sought reimbursement for the rooms from the Trump campaign.

According to his testimony before the select committee, Kerik paid for the room of an unnamed “whistleblower” from Georgia who traveled to the Willard to meet with Giuliani sometime during the post-election period. The “whistleblower,” he said, had been brought to the hotel by William Ligon, a Georgia state senator, and an Atlanta-area attorney named Preston Haliburton. He did not specifically identify the whistleblower by name.

That said, later that month, on Dec. 30, Latham appeared alongside Giuliani and other Trump surrogates at a legislative hearing chaired by Ligon. At that hearing, Latham claimed “whistleblower” status as she testified about the alleged “problems” with Dominion Voting Systems machines that led Coffee County to refuse to certify its machine recount results. Haliburton, who was listed as “counsel of record for the Giuliani legal team,” also represented Latham at the hearing.

Latham, in her Curling deposition, denied that she had ever visited the Willard with Haliburton.

As Bower lays out, minutes after Trump called off the riot on January 6, the Coffee County caper — the crime to which both Powell and bail bondsman and David Bossie brother-in-law Scott Hall have already pled guilty — went into motion.

At 4:17 p.m. on Jan. 6, 2021, the president of the United States belatedly tweeted out his video message to the mob that had forcibly disrupted the counting of electoral votes. “You have to go home now,” he finally said.

But even as Giuliani was keeping up pressure on senators to “slow it down,” Coffee County officials were undeterred.

Nine minutes after the president’s tweet, at 4:26 p.m. that afternoon, Hampton sent a text to Chaney: “Scott Hall is on the phone with Cathy about wanting to come scan our ballots from the general election like we talked about the other day,” she wrote.

The next morning, on Jan. 7, Latham texted Hampton to tell her that the SullivanStrickler forensics team had departed Atlanta and were on their way to Coffee County. Hall, she added, was flying in, too. “Yay!!!!” Hampton responded. These events are also mentioned in Acts 142-143 of Count 1 of the Fulton County indictment.

Several minutes later, Paul Maggio, the chief operations officer of SullivanStrickler, sent an email to Powell, Logan, Penrose, and others. “We are on our way to Coffee County Georgia to collect what we can from the Election / Voting machines and systems,” he wrote, attaching an invoice for SullivanStrickler’s $26,000 retainer fee. The invoice billed Powell’s PAC, Defending the Republic.

This may be what Rudy was pointing to when he was pleading with Members of Congress to just buy some days.

It may also be why people like Kerik have been underbussing Powell: because they want to blame her for the plans that continued even after the attack on the Capitol.

I don’t know whether Powell will or even if she already has flipped federally.

What I’m more confident about, though, is that if she did, she’d offer testimony about things that are not widely understood, if at all.

Release the Kraken: Sidney Powell Pleading Guilty

October 19, 2023/287 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

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

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

Douglass Mackey Sentenced to 7 Months for Conspiring to Violate 18 USC 241

October 18, 2023/10 Comments/in 2016 Presidential Election, 2020 Presidential Election, January 6 Insurrection /by emptywheel

Douglass Mackey, the right wing troll prosecuted early this year for conspiring to trick Hillary voters into throwing away their votes, was just sentenced to 7 months in prison (the government had asked for 6-12 months).

Minute Entry for proceedings held before Judge Ann M. Donnelly: Sentencing held on 10/18/2023 for Douglass Mackey (1). Appearances by AUSA Erik Paulsen, AUSA Frank Turner Buford, and AUSA William Gullotta. Andrew Frisch counsel for defendant Mackey (present on bond). Probation Officer Erica Vest, present. Case called. Statement from defense counsel, and the government heard. The defendant is sentence on the sole count of the indictment to seven months imprisonment, two years supervised release, $100 special assessment, and a $15,000 fine. Defendant informed of right to appeal. For the reasons stated on the record the defendants request to stay sentencing pending appeal is denied. (Court Reporter Sophie Nolan.) (DG) (Entered: 10/18/2023)

Yesterday, Judge Ann Donnelly denied Mackey’s bid for acquittal or a new trial and today, she denied his request for a stay pending appeal. This post describes how Mackey and his co-conspirator Microchip set out to “infect everything” during the 2016 election.

This is charge, 18 USC 241, is the third charge with which Trump was charged in his January 6 indictment, so Donnelly’s ruling and any appeal Mackey makes may serve as important precedent in that case too.

The Holding Pattern on the Non-Trump January 6 Charges

October 18, 2023/59 Comments/in 2020 Presidential Election, 2024 Presidential Election, January 6 Insurrection /by emptywheel

There were two reports yesterday that relate to something I’ve been thinking about: The likelihood that most, if not all, of any more Trump-related January 6 charges will be delayed, at least until after his trial next year.

The first is a WaPo report that Jack Smith’s office withdrew a subpoena for records and testimony relating to Save America PAC — the fundraising Trump did off of false claims about voter fraud, which he has since used to pay lawyers and other things unrelated to the claims he made in raising the money.

The withdrawal of the subpoena earlier this month indicates Smith is scaling back at least part of his inquiry into the political fundraising work that fed and benefited from unfounded claims that the election was stolen, said the people, who spoke on the condition of anonymity to discuss an ongoing criminal investigation.

Save America was still working to gather all of the records sought in the subpoena when it was notified by Smith’s office that the demand for information had been withdrawn, two of the people familiar with the matter said.

[snip]

Broadly, the subpoenas and related interviews by Smith’s investigators sought information about the post-election, pro-Trump fundraising, and what people inside Save America and other groups knew about the veracity of the claims they were making to raise money, the people familiar with the matter said.

[snip]

While interviewing potential witnesses associated with Trump, Smith’s prosecutors have asked pointed questions about who is paying for their lawyers and why, people familiar with the questions have said. Trump advisers have said the Save America PAC, which raises most of its money through small-dollar contributions by Trump supporters across the country, is footing the legal bills for almost anyone drawn into the Trump investigations who requests help from the former president and his advisers.

[snip]

Four people with knowledge of the investigation said prosecutors had not asked questions about fundraising in recent months, after several subpoenas and witness interviews on that topic earlier in 2023.

Relatedly, while Jack Smith’s team had raised Stan Woodward’s payment arrangement when they first raised his conflicts with Chief Judge James Boasberg in June, it has not come up in the conflict review before Judge Cannon in Florida (the follow-up hearing to which is scheduled for Friday).

It’s certainly possible that something about the stage of the election has led DOJ to back off this focus. It’s equally possible DOJ has reviewed the advice given by Trump’s campaign finance lawyers, Jones Day, in 2020 and decided that advice of counsel would make charges unsustainable.

Then there’s this fascinating Bloomberg discussion, featuring abundant quotes from Zach Terwilliger, the son of George Terwilliger, Mark Meadows’ lawyer, about frustration among defense attorneys in the case regarding Smith’s uncertain instructions regarding whether witnesses are just that — witnesses — or also subjects of the investigation.

Three defense lawyers representing people sought for voluntary interviews say they’re frustrated that special counsel Jack Smith’s team insists on labeling their clients subjects without providing additional detail as to where they fit in the case or whether they could become a target. They’ve asked to remain anonymous to discuss sensitive matters.

Justice Department guidance doesn’t define what a witness is and prosecutors prefer the flexibility of the broad subject label, which covers anyone within the scope of a grand jury investigation.

Yet Smith’s search for corroborating witnesses aimed at proving the 2020 election case against the former president pressures prosecutors to incentivize people to talk, but without exposing themselves to counterattacks from defense lawyers and Trump supporters. How they navigate that balancing act could help shape the legal fate of Trump and his allies.

“It is an exercise in understandable murkiness. And it’s more complicated here,” said Jim Walden, a former federal prosecutor who’s now a criminal defense attorney. “Anyone in the Trump administration has at least potential liability if they helped him form strategy about his election loss.”

By sticking strictly to the subject designation, Smith’s team retains the ability to charge individuals who appear innocent but later turn out to have liability, while protecting itself from accusations they baited people into talking. At the same time, they’d risk undercutting their mission of expediting the Trump trial, as defense lawyers insist on negotiating drawn-out immunity deals before an interview. [my emphasis]

While the Bloomberg piece referes to a “mission of expediting the Trump trial,” neither of these articles mentions something that, to me at least, seems obvious: Whether or not a jury convicts Trump next spring, if Trump wins the presidential election, none of this may matter. The criminal exposure of Trump’s associates won’t matter, because any that remained loyal would just be pardoned, as Paul Manafort and Roger Stone and Mike Flynn and George Papadopoulos and Steve Bannon were pardoned during Trump’s first term.

While I could imagine DOJ charging a handful of people who linked the crime scene to Trump before the election, most everything else would simply expose parts of the investigation that would otherwise be better kept quiet.

Which adds yet another reason why we can’t expect to understand the steps Jack Smith may still be taking: because on top of all the other reasons prosecuting a former and potentially future President is unprecedented, the likelihood that he would just pardon himself out of any further mess is part of it.

No one seems to care anymore: but there are a good many Trump associates — not just his unindicted co-conspirators — who bear some responsibility for what happened on January 6, 2021. But DOJ may have decided it makes not sense to prosecute any of them until there’s certainty, at the very least, about Trump’s fate.

Steve Scalise Calls Out Donald Trump

October 11, 2023/46 Comments/in 2020 Presidential Election, January 6 Insurrection /by Peterr

Donald Trump and Steve Scalise on better days . . .

Some things age well, like fine wine, George Clooney, Halle Berry, and Robin Wright.

Some things do not.

Back on January 6, 2021, when certain GOP senators and representatives objected to the certification of the Arizona results and the two houses went into separate sessions, Steve Scalise was the first member recognized to speak in the House. Here is part of what he said, taken from the Congressional Record, after some preliminary remarks about the Founders. Note, please, the three parts I put in bold:

. . . We have to follow the constitutional process. Now, there might be reasons why some people don’t like the process laid out by a legislative body. Madam Speaker, I served on one of those legislative bodies when I was in the State legislature for 12 years. I served on the House and Governmental Affairs Committee, where we wrote the laws for our State’s elections. And I can tell you, when we had to make changes, those were extensively negotiated. We would have people on both sides come.

Republicans and Democrats, Madam Speaker, would get together to work through those changes, any minute change to how a precinct would function, to how a change would be made in the time of an election, signature requirements, all the many things that involve a clerk carrying out the duties in each parish, in our case.

You would see people come and give testimony, Madam Speaker. Both sides could come. Clerks of court were there in the hearing rooms.

It was an open process, by the way, not behind closed doors in a smoke-filled room where somebody might want to bully a secretary of state to get a different version that might benefit them or their party or their candidate. That is not what our Founding Fathers said is the process. Maybe it is how some people wanted to carry it out. But they laid out that process.

So when we would have to make those changes, they were in public view; they were heavily debated; and then, ultimately, those laws were changed in advance of the election so everybody knew what the rules were.

People on both sides knew how to play by the rules before the game started, not getting somewhere in the process and saying, well, you don’t think it is going to benefit you, so you try to go around the Constitution. That is not how our system works. It has gotten out of hand. So President Trump has called this out, and President Trump has stood up to it. So many of us have stood up to it.

[snip]

It is time we get back to what our Founding Fathers said is the process for selecting electors: that is the legislatures in public view, not behind closed doors, not smoke-filled rooms, not bullying somebody that might give you a better ruling. Let’s get back to rule of law and follow the Constitution, Madam Speaker.

[end of remarks]

[C-Span video of Scalise’s remarks here.]

Scalise is worried that “somebody might want to bully a secretary of state”? Horrors!

Scalise is concerned that “some people” want a different process that allows for bullying a secretary of state? Say it ain’t so!

Scalise is bothered by the notion that somebody might put pressure on an elections official so that they “might give you a better ruling”? Inconceivable!

. . . pause . . .

. . . deep breath . . .

. . . looking around nervously . . .

. . . checking the skies to see if lightning is about to strike . . .

Waiting for Donald Trump to come down *hard* on Scalise in three . . . two . . . one . . .

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

October 11, 2023/63 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

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

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

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

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

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

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

And charge Trump alone.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

October 10, 2023/120 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection, Leak Investigations /by emptywheel

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

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

January 6 Election Intelligence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

Ms. Cheney. Uh-huh.

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

Ms. Cheney. Yeah.

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

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

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

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

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

Ms. Cheney. Yeah.

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

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

[Redacted] That would be great.

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

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

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

Stolen Documents

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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