Robert Hur has released his report, declining charges against Biden but finding he did willfully retain information. He wrote a 388-page report about — by his own description — “a single 8-word utterance.”

I’ll do a running thread here.

[NB: check the byline, thanks. /~Rayne]

Because everyone will likely be restless and itchy about today’s hearing, I’m putting up an open thread.

Feel free to discuss Trump v. Anderson here but bring all your off-topic discussion to this thread, stay on topic in other threads.

Wikipedia page for Trump v. Anderson here, in case you need a primer:

Trump v. Anderson (No. 23-719, filed January 3, 2024)

In a nutshell, Colorado’s state supreme court found Donald J. Trump disqualified from the state’s primary ballot under Section 3 of the 14th Amendment which bars candidates who have participated in insurrection or rebellion against the Constitution in spite of swearing an oath to uphold and defend the Constitution.

Trump appealed the ruling; the U.S. Supreme Court will hear oral arguments today.

The hearing is scheduled to begin at 10:00 a.m. ET.

You can listen to the arguments at https://www.supremecourt.gov/oral_arguments/live.aspx – they are expected to run over the scheduled 80 minutes.

Long-time community member harpie has shared quite a few more resources pertinent to today’s arguments below in comments (thanks, harpie!).

~ ~ ~

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Thank you.

Merrick Garland has informed Congress that Robert Hur, the Special Counsel who spent an entire year confirming that when Joe Biden discovered classified information, he returned it, has finished his investigation and will release it pending a privilege review.

ABC’s report on the release raises cause for concern. Former Inspector General Michael Bromwich, who represented twenty witnesses in the inquiry (and who also has represented Andrew McCabe in avenging his firing), cautions that Hur is refusing to ensure he has the proper context for the interviews he did.

According to attorney Michael Bromwich, for the past month he has repeatedly suggested to Hur’s team that — without such a review — Hur might miss “proper factual context” for the information that each of his clients provided.

But, as Bromwich described it, Hur’s office repeatedly told him that none of the witnesses in the probe would be able to see the report before it became public.

“It’s a huge process foul, and not in the public interest,” Bromwich told ABC News.

An attorney representing other witnesses agreed, saying that his clients should be able to review a draft of Hur’s report before its release.

The ongoing dispute underscores a growing concern among Biden’s closest aides — and the attorneys representing them — that Hur’s report could be substantially critical of Biden, even if it doesn’t recommend charges against him.

ABC News previously reported that Hur’s team had apparently uncovered instances of carelessness related to Biden.

Speaking to ABC News on Wednesday, Bromwich said he expects anecdotes and information provided by many of his clients — ranging from junior staffers to senior advisers — to be included in Hur’s report, but he declined to offer any specifics.

However, Bromwich noted that Hur’s investigation has been so far-reaching that investigators even interviewed waitstaff who had worked an event at Biden’s home in recent years to determine if they might have been exposed to classified documents.

Hur is absolutely right that other Special Counsels have not offered witnesses the ability to review a report before its release.

But his immediate comparison is a tell.

Hur, a close associate of Rod Rosenstein who served as his Principal Associate Deputy Attorney General during (and therefore supervised) the Mueller investigation in its earliest, productive phase, may be thinking of the Mueller Report. In its first 200 pages it laid out how Trump’s willingness to welcome Russian help during an assault on democracy showed evidence for, but not enough to charge, a conspiracy (though the investigation into Roger Stone for such a conspiracy remained ongoing). All of it, though, was tied to a series of prosecutorial decisions. In its second 200 pages, it described obstructive conduct as President that could not be charged.

Rosenstein, after barely keeping his job in the wake of disclosures that he had considered wiretapping the President, participated in a corrupt declination for those actions.

There are key differences between the Mueller Report and what we should expect the scope to be for this report — notably, that much of the conduct pertains to what happened between the time Joe Biden left the Naval Observatory and when he moved into the White House.

And, more importantly, Bromwich advised people to cooperate. And such cooperation no doubt freed Hur to search and search and search in a way that was not possible when key witnesses were lying to obstruct the investigation, as happened with Mueller.

That’s how you spend over a year confirming what was known from the start.

But Hur’s stance also comes in the wake of the Durham Report, which because of a supine press, has never been exposed as the propaganda hit job it is. It is provable that Durham:

• Was appointed without evidence any potential crime had been committed
• Engaged in a review of other investigations taken during an election (and lied about the results), something that is not remotely a prosecutorial function and does not remotely belong in a SCO report
• Fabricated a key claim against Hillary Clinton, one which he pursued for years
• Renewed allegations against defendants who were acquitted at trial
• Made claims about witness cooperation that at least one has disputed publicly
• Failed to make prosecutorial decisions for one crime he investigated (the Italian referral) and the statement for which there was most proof it was a deliberate lie
• Engaged in selective editing to substantiate false claims

Only the last of those — selective editing — was a claim that was credibly made about Mueller (in his editing of an obstructive voice mail John Dowd left for Mike Flynn’s attorney).

And it comes in the wake of David Weiss’ decision — taken in tandem with long-time associates of Rosenstein and Hur, Leo Wise and Derek Hines, and in the wake of pressure from Baltimore-based IRS Agent Gary Shapley — to ask for Special Counsel status because he wants to write a report. (As I have noted, I think that may be one point of Abbe Lowell’s SCO challenge to Weiss’ appointment; to attempt to enjoin a report that is not legally justified.)

Because of the aforementioned supine press, because there is no accountability structure in place for Special Counsels, and because as prosecutors they enjoy broad immunity (though Durham tellingly backed off false claims he made in his report when he testified to Congress), the Special Counsel process was exploited by Bill Barr in retaliation for Rosenstein’s appropriate decision to appoint one.

I don’t expect Hur’s report to be as corrupt as Durham’s. I expect it to overcompensate for claims that Trump was treated differently for intentionally stealing 300 classified records (and hiding still more) than Joe Biden was for negligently taking some home and then giving them back.

Former Bill Barr aide Seth DuCharme did something funny in his two sentencing memos for former FBI counterintelligence professional Charles McGonigal.

Secret meetings

In his SDNY sentencing memo, he redacted a long paragraph which, by context, purported to describe cooperation.

SDNY was having none of that.

They explained that the redacted passage described a single meeting he had in which he shared — per a participant — “insignificant” information, not anything that merited a bonus for cooperation.

McGonigal describes an interview with other government agencies, at which he answered questions about misconduct others may have committed and his own conduct. (Br. 15- 16). The U.S. Attorney’s Office conducting this prosecution did not request that meeting, did not attend that meeting, and has little knowledge of what was said there, beyond a brief summary from one of its participants—who characterized the contents of McGonigal’s statements as, in substance, insignificant. There thus appears to be no basis for McGonigal to “presume” that his statements were “of some assistance.” (Br. 16).11 Nor can McGonigal seek sentencing credit for this meeting by citing United States v. Fernandez, 443 F.3d 19, 33 (2d Cir. 2006), abrogated by Rita v. United States, 551 U.S. 338 (2007). As McGonigal notes, that case states that a sentencing court could consider a defendant’s efforts to cooperate with the Government even if those efforts did not result in a cooperation agreement. (Br. 16). But its holding was that the district court was within its discretion to conclude “that the cooperation was fitful and that it should not be used to lighten [the defendant’s] sentence.” Fernandez, 443 F.3d at 34 (internal quotation marks omitted). This Court should reach the same conclusion with respect to McGonigal’s attempt to obtain a lenient sentence by attending a single meeting.

In a footnote, they tattled on DuCharme for trying to inflate the value of it by unilaterally redacting it.

11 The Court should not infer from McGonigal’s sealing of the corresponding paragraph in his submission that he has provided information of any value. The Government did not ask that this paragraph be sealed. Rather, McGonigal’s attorney informed the undersigned and the Washington, D.C. prosecutors that he intended to seal the paragraph, and neither objected.

DuCharme didn’t even attempt this ploy in DC. This time he left the paragraph unsealed.

When the United States presented him with a reasonable plea offer during the discovery phase of this case, Mr. McGonigal swiftly agreed to accept responsibility for his actions. In addition, he agreed to meet with representatives from seven different DOJ offices after his plea and provided truthful information to the government during a seven-hour interview session.

[snip]

Moreover, after Mr. McGonigal entered his plea, on November 17, 2023, at the request of the United States, Mr. McGonigal met with seven components28 of the Justice Department simultaneously in Manassas, Virginia, where he answered all questions presented to him on a wide variety of topics, including detailed discussions of his understanding of certain events, and his considered assessment of what the FBI can do to improve its compliance policies and practices to detect and deter improper conduct within the organization. We have been informed that the United States found the information that Mr. McGonigal provided during the full-day interview to be truthful and, we presume, of some assistance given the length and detail of the discussions.

Though by feigning coy about which parts of DOJ he met with, he again tried to fluff the import of it.

28 The specific components represented are not listed here, out of respect for sensitivities related to their specific areas of responsibility, but that information is available upon request if it is material to Court’s consideration.

DC USAO, which must have set up the meeting, didn’t mention it. Instead, they described the extensive effort FBI has made to make sure McGonigal didn’t drum up investigations into other people to help friends overseas, as he seems to have done for Albania.

Moreover, given the defendant’s senior and sensitive role in the organization, the FBI has been forced to undertake substantial reviews of numerous other investigations to insure that none were compromised during the defendant’s tenure as an FBI special agent and supervisory special agent. The defendant worked on some of the most sensitive and significant matters handled by the FBI. PSR ¶¶ 98-101. His lack of credibility, as revealed by his conduct underlying his offense of conviction, could jeopardize them all. The resulting internal review has been a large undertaking, requiring an unnecessary expenditure of substantial governmental resources.

This may be the only passage, in either DOJ sentencing memo, that discussed what a lasting harm having a top spymaster team up with foreigners seeking favors is for the FBI.

It suggests that DOJ might trust McGonigal to discuss “compliance policies,” but no longer the counterintelligence investigations in which he played a role.

Non-spy charges against the spy chief

I thought DuCharme’s ploy to provide the appearance of cooperation via evasion and redaction made an amusing introduction to something else I’ve been meaning to write, as part of my Ball of Thread series.

There was some consternation when McGonigal got sentenced in December to (just) 50 months for working for Oleg Deripaska. The complaint was, I think, that McGonigal hadn’t been labeled a spy, with some belief that would have changed the outcome.

I’d like to explain why, I suspect, DOJ did what they did.

I think they got a similar outcome as they would have had they called what he did “spying,” but deprived McGonigal — and just as importantly, DuCharme, who tried to pitch the “insignificant” information he shared as some great cooperation — from conducting an information operation to undercut the prosecution.

McGonigal was prosecuted for two schemes.

In DC, he was charged for secretly getting paid by, and traveling with, top Albanians, and ultimately predicating a FARA investigation into a Republican lobbyist with ties to a rival Albanian faction. For that, McGonigal was charged with a bunch of disclosure violations, making the secrecy the crime, not the scheming with Albania. The government is asking Judge Colleen Kollar-Kotelly to sentence him on February 16 to 30 months; they have not explicitly asked her to impose the sentence consecutively, which is the only way this sentence would extend his detention.

In NY, he was charged for secretly working with Oleg Deripaska. For that, he was charged with sanctions violations and money laundering. After he pled to conspiracy, the government had asked Judge Jennifer Rearden to sentence him to the max 60 months; she gave him the aforementioned 50 month sentence.

The government has not claimed to have proof that McGonigal shared any sensitive information with Deripaska or the Albanians, whether they have it and aren’t telling, or whether there is none. Without it, you would not expand McGonigal’s potential sentence by charging him with the crimes that might label him a spy: Foreign Agent crimes in DC, since he was working for a foreign state, or FARA in NY, since Deripaska is not quite the same thing as the Russian state. By larding on the disclosure violations in DC and asking for an obstruction enhancement, DOJ has raised total possible exposure there. And no FARA charges would carry a tougher sentence than the potential 20 year money laundering sentence that McGonigal avoided by pleading out in SDNY.

That is, DOJ charged McGonigal in such a way that the punishment would be the same, the 20 years on the money laundering charge or five-plus on disclosure violations, without giving McGonigal a cause to demand information exposing his operations at FBI.

But he did try.

Deripaska’s visit

Before I explain how, let’s situate things a bit.

According to Business Insider, a tip from the UK is one of the things that led to the investigation into McGonigal. They picked him up via the surveillance of a Russian in London they were tracking.

In 2018, Charles McGonigal, the FBI’s former New York spy chief, traveled to London where he met with a Russian contact who was under surveillance by British authorities, two US intelligence sources told Insider.

The British were alarmed enough by the meeting to alert the FBI’s legal attaché, who was stationed at the US Embassy. The FBI then used the surreptitious meeting as part of their basis to open an investigation into McGonigal, one of the two sources said.

Whether the UK picked him up in 2018 or 2019, according to the indictment his meetings with Deripaska — including in London — were in 2019.

In or about 2019, after McGONIGAL had retired from the FBI, SHESTAKOV and McGONIGAL introduced [Evgeny Fokin] to an international law firm [Kobre & Kim] with an office in Manhattan, New York (the “Law Firm”). [Fokin] sought to retain the Law Firm to work in having the OFAC Sanctions against Deripaska removed, a process often referred to as “delisting.”

During negotiations to retain the Law Firm, McGONIGAL traveled to meet Deripaska and others at Deripaska’s residence in London, and in Vienna. In electronic communications exchanged as part of these negotiations, McGONIGAL, SHESTAKOV, [Fokin] and others did not refer to Deripaska by his surname, but rather used labels such as “the individual,” “our friend from Vienna,” and “the Vienna client.”

DuCharme asserted at McGonigal’s SDNY sentencing that working with a law firm on delisting Deripaska in 2019, “would have been legal.”

After Charlie left the FBI, he met Oleg Deripaska. He met him in London in a prestigious international law firm with a lawyer. But I think the government agrees that that part would have been legal, because there is the carve-out for certain legal representations.

That didn’t go through.

It’s true that there’s a carve out for legal services that would make that, in general, legal. Probably far less so if you know that the guy you’re working with is a Russian spy.

DuCharme claims McGonigal did not, at least with regards to Fokin.

So this person, Fokin, reaches out to Charlie after that at some point. And just to be clear, as far as Mr. McGonigal knows, Fokin is not, as I guess is rumored in the media, to be a Russian intelligence officer. That’s not his understanding. But he certainly knows him to be associated with Oleg Deripaska; and he certainly knows that Deripaska is on the sanctions list.

The indictment and government sentencing memo, however, describe that McGonigal told a subordinate that Fokin was a spy.

McGonigal also told a subordinate that he wanted to recruit Fokin, who was, according to McGonigal, a Russian intelligence officer.

Let’s situate where things were in 2019. McGonigal was, without question, retired from the FBI. But at the time, DuCharme was working for Bill Barr, among other things, setting up an investigation to undermine the Russian investigation that disclosed how a close Deripaska associate, Konstantin Kilimnik, used Paul Manafort’s debt to Deripaska as leverage to learn how Trump planned to beat Hillary Clinton and also discuss carving up Ukraine to Russia’s liking. DuCharme would go on from there to set up a back channel via which Rudy Giuliani could channel dirt, including from a known Russian spy, into the Hunter Biden investigation.

A meeting with a law firm would have been legal. And also, DuCharme and his boss were working hard to blame the 2016 Russian operation on Hillary rather than Deripaska, recklessly chasing leads to those involved all over the world.

In fact, among the leads that DuCharme was chasing in 2019 as he and John Durham (he of the studied ignorance about what really happened) dreamt up ways to undermine results showing Trump welcomed help from Russia — along with the Russian-backed Ukrainians and Joseph Mifsud — involved Deripaska.

On July 3, 2019, DuCharme emailed Durham about a Fox News report that FBI had worked with Oleg Deripaska in an attempt to get Robert Levinson released and returned by Iran.

To be sure, unlike Mifsud and the Ukrainians, there’s no record DuCharme and Durham and Barr did chase the possibility that Deripaska would have damning information on Andy McCabe.

Though two months before DuCharme sent Durham a lead on Deripaska, on May 1, 2019, Bill Barr’s face melted when Ben Sasse asserted that Deripaska was a “bottom-feeding scum-sucker.”

Anyway, back to McGonigal and his charges for secretly working for Deripaska.

The investigation into McGonigal went overt in November 2021 and after that point, DuCharme described, McGonigal’s counsel, presumably DuCharme himself, remained in contact with the government.

More than a year before his arrest, on November 21, 2021, FBI agents conducted a recorded, voluntary interview of Mr. McGonigal at Newark airport when he returned home from an overseas business trip. While he was speaking to agents at the airport, another team of agents visited Mr. McGonigal’s home in lower Manhattan and met with his wife. Over the following year, Mr. McGonigal was aware of the ongoing investigation into his business dealings and remained in communication with the United States through his counsel.

So as SDNY and DC USAO were contemplating how to charge their former spymaster leading up to his January 2023 indictments, they knew that they would have to contend not just with McGonigal’s former Top Secret clearance, but also that of his attorney, the guy who in at least two cases facilitated the intake of spy dirt for partisan purposes on behalf of the former Attorney General.

Graymail

DuCharme was well aware of that.

In his DC sentencing memo, for example, he described how, by pleading guilty relatively quickly, McGonigal saved the government from engaging in the Classified Information Procedures Act process, the process by which the judge acts as an intermediary to make sure that defendants can get classified information that would be helpful to a defense without unnecessarily compromising information that would be of no help.

In contrast to Mr. Saffarinia, Mr. McGonigal quickly accepted responsibility for a single count of false statements through his guilty plea, avoiding any further expenditure of government resources, including potential Classified Information Procedures Act (“CIPA”) litigation.

It’s not true, however, that McGonigal spared SDNY of using the CIPA process. Though something very funky happened in that process in SDNY, which I believe is a big testament to the reason why they treated McGonigal’s exposure there the way they did, by charging him with crimes that would carry the same punishment without charging with a foreign agent crime. I first wrote about this funkiness here.

It seems like SDNY pre-empted a full-blown CIPA practice by having select documents, dating to well before McGonigal got into discussions with Deripaska’s people, that made clear that Deripaska was, “associated with a Russian intelligence agency” that must be GRU, which meant nothing that happened downstream of that knowledge would be all that helpful to McGonigal’s defense. That is, DuCharme may claim, evidence to the contrary, that McGonigal didn’t believe Fokin is a spy, but SDNY declassified a very small subset of documents making it clear McGonigal had to have known Deripaska was associated with GRU.

That’s part of the story that would have been told had this gone to trial: that when McGonigal secretly went to work for Deripaska, he knew of his ties to Russian intelligence.

SDNY must have planned this from the start.

It started on February 8, 2023, shortly after his indictment, when SDNY filed a CIPA letter, requesting a CIPA 2 conference.

Often, these CIPA letters review the entire CIPA process. The one Jay Bratt submitted in the Trump stolen documents case, for example, went through Section 1, Section 2, Section 3, Section 4, Section 5, Section 6 (broken down by sub-section), Section 7, Section 8, Section 9, and Section 10.

Not the SDNY one in the McGonigal case. It went through Section 2 — asking for a conference — and then stopped.

The Government expects to provide the Court with further information about whether there will be any need for CIPA practice in this case, and to answer any questions the Court may have, at the CIPA Section 2 conference.

In response, on March 1, DuCharme submitted his own CIPA letter, laying out Sections 1 through 8. Along the way, DuCharme promised that as part of CIPA 4, he would submit a memo telling Judge Jennifer Rearden what kind of information would be helpful to Charlie McGonigal’s defense, much later describing surveillance that must exist.

Under Section 4, upon a “sufficient showing” by the government, the Court may authorize the government to “delete specified items of classified information from documents to be made available to the defendant . . . , to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove.” 18 U.S.C. § App. III § 4. The government makes a sufficient showing that such alternatives are warranted through an ex parte submission to the Court. See id; see also United States v. Muhanad Mahmoud Al-Farekh, 956 F.3d 99, 109 (2d Cir. 2020). Of critical importance to the fairness of the process, the Court may review, ex parte and in camera, the classified information at issue to determine whether and in what form the information must be disclosed to the defendant, and whether the government has truly satisfied its discovery obligations. See, e.g., United States v. Aref, No. 04 CR 402, 2006 WL 1877142, at *1 (N.D.N.Y. July 6, 2006). To assist the Court in this analysis, the defense will provide the Court with its initial view of the scope of material that will be relevant and helpful in the preparation of the defense at the upcoming conference and will supplement that information as appropriate.

[snip]

In the present case, there is far more than a trivial prospect, and in fact there is a high likelihood if not certainty, that the IC possesses information that is relevant and helpful to the preparation of the defense. The indictment charges violations of IEEPA based on an alleged agreement to provide services on behalf of Oleg Deripaska, a foreign national with allegedly close ties to a foreign government, who, it is reasonable to assume, may have been a target of surveillance by the United States during the relevant time frame. Moreover, the indictment makes specific references to previously-classified information that was in the possession of the IC, to which Mr. McGonigal had access by virtue of his position as Special Agent in Charge of the Counterintelligence Division of the New York Field Office. [my emphasis]

Seth DuCharme set out to know, among other things, what kind of surveillance FBI obtained on McGonigal, including whatever surveillance the Brits picked up when they first grew concerned about McGonigal meeting certain Russians in London.

Things never got to CIPA 4.

On March 3, Judge Rearden confirmed she would hold two separate CIPA conferences. The SDNY conference was held on March 6. On March 7, the day after SDNY’s CIPA conference and the day before McGonigal’s, SDNY responded to McGonigal’s CIPA letter. It suggested that any investigation the Intelligence Community did of McGonigal’s “corruption” by Deripaska would not be helpful to his defense. But if McGonigal wanted to make a list of things he specifically wanted, he should put that in writing.

McGonigal’s letter repeatedly asserts that the intelligence community must possess information that is helpful to his defense, without specifying what that information must be or what agencies must possess it. (See, e.g.¸ Dkt. 30 at 6 (claiming that the intelligence community writ large “may be presumed to have been involved” in the investigation of this matter); id. at 7 (asserting that “in fact there is a high likelihood if not certainty, that the IC possesses information that is relevant and helpful to the defense”)). At best, he has suggested that the general subject of this case—a recently retired FBI intelligence official being corrupted by a Russian oligarch—is of the type that might be of interest to intelligence agencies.2 Even if that claim is true, however, it is a far cry from suggesting that those agencies possess anything helpful to the defense.

[snip]

Finally, McGonigal suggests that he will “identify categories of classified information that will be material to his defense at the defendant’s ex parte Section 2 conference.” (Dkt. 30 at 7). But it is unclear why he needs to do this in an ex parte conference. As he elsewhere acknowledges, CIPA establishes procedures for the defense to identify classified information it wishes to offer, and those procedures are not ex parte.

[snip]

The Government thus trusts that McGonigal will identify any classified information he claims is relevant to the Government, as CIPA elsewhere expressly provides. See id. § 5 (“If a defendant reasonably expects to disclose or to cause the disclosure of classified information in any manner in connection with any trial or pretrial proceeding involving the criminal prosecution of such defendant, the defendant shall, within the time specified by the court or, where no time is specified, within thirty days prior to trial, notify the attorney for the United States and the court in writing.” (emphasis added)).3

On May 8, SDNY filed a short letter informing Judge Rearden that they had declassified the material they had told her they would in their own CIPA 2 hearing and provided it to the defense.

At the March 6, 2023 ex parte conference held pursuant to Section 2 of the Classified Information Procedures Act (“CIPA”) in the above-referenced case, the Government described to the Court certain materials that the Government was seeking to declassify. The Government writes to confirm that those materials have been declassified and produced to the defendants. At this time, the Government does not anticipate making a filing pursuant to Section 4 of CIPA and believes it has met its discovery obligations with respect to classified information.

It seems likely that this declassified material includes the document, which McGonigal received in May 2017, identifying Deripaska’s ties to (what must be) GRU disclosed in the government’s sentencing memorandum. Effectively, SDNY was saying that, once you understand Deripaska was GRU (and whatever else also got declassified), anything that came after that would not be helpful to your defense.

DuCharme was not yet done. On June 23, he submitted another letter describing that it was perplexing and puzzling and concerning and hard to imagine that there wasn’t more.

With respect to the way forward as it pertains to classified discovery, as we noted at our last court appearance, the government has indicated that it “does not anticipate making a filing pursuant to Section 4 of CIPA and believes it has met its discovery obligations with respect to classified information.” See ECF No. 44 at 1. In a subsequent series of conversations, the government informed us, in a general way, that it has satisfied its discovery obligations relating to classified information. The government’s position is perplexing. While it is not surprising that the government does not wish to account for its each and every step in satisfying its constitutional obligations, it is puzzling and concerning that the government would, at this stage, determine that no CIPA Section 4 presentation to the Court is appropriate, when we are a year away from trial and the government’s discovery obligations with respect to Rule 16, the Jencks Act, Brady and Giglio are ongoing. The indictment and the U.S. Attorney’s press release include accusations that foreseeably implicate classified information within each of the four categories of discoverable information. With respect to the category of impeachment material alone, it is hard to imagine a world in which there are no classified materials that touch on the credibility of the government’s trial witnesses (or alleged unindicted coconspirator hearsay declarants), and which would require treatment under Section 4 of CIPA.

DuCharme suggested that maybe the problem was that the information helpful to McGonigal’s defense was simply super duper classified, but that it still had to be turned over.

As an initial matter, the classification level of information in the possession of the United States is wholly irrelevant as to whether or not it is discoverable. Classification rules appropriately exist to safeguard the national defense of the United States by limiting the dissemination of such information in the normal course. See Exec. Order No. 13526, 75 Fed. Reg. 707, (2009) (prescribing a uniformed system for classifying national security information). But once a defendant is indicted, the government is obligated to consider whether information within its holdings is discoverable under the applicable rules, statutes and constitutional caselaw

The letter explained that both McGonigal and Seth DuCharme could be trusted with the government’s classified information — after all, McGonigal was only indicted for cozying up to the Russian oligarch he had hunted for years, not mishandling classified information. And Seth DuCharme was, until recently, trusted with Bill Barr’s most sensitive secrets, including about the side channels ingesting dirt from known Russian agents.

Further, it is hard to understand why the government is so reluctant to be more transparent in explaining its discovery practices to the defense in this case. While many national security cases involve defendants with no prior clearances or experience with the U.S. Intelligence Community, and may involve only recently-cleared defense counsel who may be new to navigating the burdens and responsibilities of handling classified information, here, those concerns do not apply. Mr. McGonigal was one of the most senior and experienced national security investigators in the FBI with significant direct professional experience in the areas germane to his requests for assurances about the thoroughness of the government’s discovery analysis. In addition, before moving to private practice, the undersigned counsel served as the Chief of the National Security Section, the Chief of the Criminal Division and the Acting United States Attorney in the U.S. Attorney’s Office in the Eastern District of New York as well as the Senior Counselor to the Attorney General of the United States for National Security and Criminal matters, and has responsibly held TS/SCI clearances with respect to some of the United States government’s most sensitive programs. As the Department of Justice has concluded in re-instating defense counsel’s clearances for the purpose of this case, we are trustworthy. So, here, we have a defendant and defense counsel who are highly respectful and experienced with regard to the protocols for handling and compartmentalizing sensitive classified information, and simply request comfort that the government has indeed done everything it would normally do in a case such as this, with sufficient detail to assess the credibility of the government’s position.

Notably, Mr. McGonigal has not been accused of mishandling classified information in the cases brought against him, and he maintains respect for the national security interests of the United States, as of course do we. In addition, we are not asking the government to disclose to the defense any sensitive sources and methods by which discoverable information was collected—only to provide greater transparency to us, and to the Court, as to how it views its procedural obligations, so that we may consider the fairness and reasonableness of the government’s approach. Mr. McGonigal is personally familiar with this process from his time at the FBI, and it is reasonable for him to expect to be treated no worse than the other defendants who have come before him. To adequately represent Mr. McGonigal, it seems only fair that we be allowed to hold the United States government to the same standards that the defendant upheld as a national security and law enforcement professional, and to make a record of the government’s position.

Then DuCharme made a helpful offer to meet in a secure hearing or to submit a more highly classified brief — perhaps taking SDNY up on their instruction to put it in writing — again suggesting he had something specific in mind.

In sum, if the government could explain, in an appropriate setting, how it determined that it had obviated the need for a CIPA Section 4 proceeding, we likely can avoid speculative motion practice, and the parties and this Court may be assured that we can continue to litigate this case fairly and with the level of confidence to which we are entitled.

[snip]

To the extent the Court would like more detailed briefing on these issues prior to the conference, the CISO has provided to cleared defense counsel access to facilities that would allow us to draft a supplemental submission at a higher classification level.

I don’t want to minimize the problem CIPA presents for defendants, nor the kind of prosecutorial dickishness that can roil discovery discussions. But this entire exchange was, in my experience, pretty remarkable. The arguments, for example, are little different from ones Trump is making in the stolen documents case, but McGonigal’s arguments always seemed more targeted than Trump’s, which are a mad splay attempting to review the entire Intelligence Community.

Then it was over.

On June 23, DuCharme doubled down on his certainty there were secrets that would help McGonigal. On July 10, Judge Rearden scheduled a hearing for updates on classified discovery. That same day, the government described making a discovery production four days after DuCharme’s letter, then said it planned to file a response to the letter before the hearing, which it said was scheduled for July 18. Judge Rearden gave them four days to file the response, until July 14. That day, July 14, the day SDNY would otherwise have filed another public letter about classified discovery, McGonigal withdrew his request for a status hearing. A month later McGonigal pled guilty to the one count of conspiracy.

To be sure, the deal was pretty sweet, given that it took the onerous money laundering exposure off the table. But the 50 months is the kind of sentence he might have faced for Foreign Agent charges — anything that stopped short of alleging that McGonigal had shared FBI secrets with Oleg Deripaska, of which, again, there is no hint in any of the charging documents.

Yet SDNY successfully prosecuted the former FBI spymaster for working for Oleg Deripaska without (apparently) sharing anything more than the first notices McGonigal got of the spook ties the Intelligence Community found Oleg Deripaska to have.

 

 

• DC McGonigal sentencing memo
  • FBI records on case McGonigal had opened
  • McGonigal emails
• McGonigal DC sentencing memo
  • McGonigal statement
  • McGonigal SDNY sentencing hearing transcript

 

• SDNY McGonigal sentencing memo
  • WhatsApp texts
  • Parking permit
• McGonigal SDNY sentencing memo
  • McGonigal statement
  • McGonigal plea deal

The day the entire GOP refuses to pursue really draconian immigration legislation because Donald Trump has demanded they not do so — and especially not pass any more funding for Ukraine — seems like a good day to resume my effort to roll out a Ball of Thread in advance of explaining how Trump trained Republicans to hate rule of law.

This post is very simple. Under grilling from Adam Schiff during his House Judiciary Committee testimony last summer, John Durham played dumb — really, really dumb — about what Trump actually did in 2016 (there were a few more examples during the hearing, usually in exchange with Schiff).

It’s not surprising. But it is very similar to the way Scott Brady played dumb when quizzed (in a deposition, by House Judiciary Committee staffers) about what really happened in 2016. Again, not surprising. Just another example where key sycophants who played a central role in this process rigidly parroted the false cover story even when confronted with the truth.

 

Mr. Schiff. I thank you for yielding. One of my colleagues in the Republican side of the aisle took issue with my saying that the Trump Campaign invited Russian help, received Russian help, made use of it, and then lied about it. So, let’s break this down.

Let’s go to invited Russian help. Mr. Durham, you’re aware of Donald Trump’s public statements along the lines of, hey, Russia, if you’re listening, hack Hillary’s emails. You’ll be richly awarded by the press. Are you aware of that?

Mr. Durham. I’m aware of that.

Mr. Schiff. You’re aware that Mueller found that hours after he made that plea for Russian help, the Russians, in fact, tried to hack one of the email servers affiliated with the Clinton Campaign or family.

Mr. Durham. If that happened, I’m not aware of that.

Mr. Schiff. You’re not–

Mr. Durham. It could very well. I just don’t know.

Mr. Schiff. –aware of that in the Mueller Report? When you’re saying you’re not aware of evidence of collusion in the Mueller Report, it’s because apparently you haven’t read the Mueller Report every well if you’re not aware of that fact. Let me ask you about something else.

Mr. Durham. Sure.

Mr. Schiff. Don Jr. when offered dirt as part of what was described as Russian government effort to help the Trump Campaign said, “if it’s what you say, I love it;” Would you call that an invitation to get Russian help with dirt on Hillary Clinton?

Mr. Durham. The words speak for themselves, I supposed.

Mr. Schiff. I think they do. In fact, he said, especially late in summer. Late in summer was around when the Russians started to dump the stolen emails, wasn’t it?

Mr. Durham. Late in the summer, there was information that was disclosed by WikiLeaks in mid to late July. I think there had been some in June, and then there was maybe some later in October was it, I think. Don’t hold me to those dates.

Mr. Schiff. This gets to the receipt of help, second thing I mentioned, receiving Russian help. The dumping of those emails by the way just as forecast by what Papadopoulos told
the Australian diplomat. That is that the Russians would help by leaking dirt anonymously through cutouts like WikiLeaks and DCLeaks.

Mr. Durham. I don’t think that’s exactly what he told the Australians.

Mr. Schiff. Well, he said that he was informed that the Russians could anonymously release this information, right?

Mr. Durham. Release what?

Mr. Schiff. By anonymously releasing information damaging to Hillary Clinton, right?

Mr. Durham. I think if you read what’s in the cable and what’s in the report as to what the diplomats reported there was a suggestion of a suggestion that the Russians could help. They have damaging information as to Ms. Clinton.

Mr. Schiff. By releasing it anonymously, right? That’s exactly what happened, isn’t it?

Mr. Durham. I don’t–

Mr. Schiff. You really don’t know?

Mr. Durham. I’m not sure–when you say exactly what happened–

Mr. Schiff. Well, the Russians released stolen emails through cutouts, did they not?

Mr. Durham. There were emails that were released by WikiLeaks.

Mr. Schiff. It’s a very simple question. Did they release information, stolen information, through cutouts, yes or no?

Mr. Durham. I’m not sure that–

Mr. Schiff. You really don’t know the answer to that? The answer is yes, they did. Through DCLeaks–

Mr. Durham. In your mind, it’s yes.

Mr. Schiff. Well, Mueller’s answer is yes. More important than mine, Mueller’s answer was yes. Now, that information, of course, was helpful to the Trump Campaign, wasn’t it?

Mr. Durham. I don’t think there’s any question that Russians intruded into hacked into the systems.

Mr. Schiff. Well, I just want to get–

Mr. Durham. They released information.

Mr. Schiff. That was helpful to Trump Campaign, right?

Mr. Durham. The conclusion in the ICA and in the Mueller investigation was that the Russians intended to assist–

Mr. Schiff. Can you answer my question, Mr. Durham? That was helpful to Trump Campaign, right?

[Crosstalk.]

Mr. Schiff. Trump made use of that, as I said, didn’t he, by touting those stolen documents on the campaign trail over 100 times?
Mr. Durham. Like I said, I don’t really read the newspapers or listen to the news.

Mr. Schiff. You were totally–

Mr. Durham. I don’t find them reliable, so I don’t know that.

Mr. Schiff. Mr. Durham, you were totally oblivious to Donald Trump’s use of the stolen emails on the campaign trail more than 100 times?

Mr. Durham. I’m not aware of that.

Mr. Schiff. Did that escape your attention?

Mr. Durham. I am not aware of that.

Mr. Schiff. Are you aware of the final prong that I mentioned, that he lied about it, that the Trump Campaign covered it up? It’s the whole second volume of the Mueller Report. I hope you’re familiar with that.

Mr. Durham. Yes, that’s a section of the report, the second volume relating to their obstruction of justice.

Mr. Schiff. Well, thank you for confirming what my Republican colleague attacked me about. He also criticized the use of the word collusion. Apparently giving private polling data to the Russians while the Russians are helping your campaign, they don’t want to call it collusion.

Maybe there’s a better name for it. Maybe they would prefer we just call it good old fashioned GOP cheating with the enemy. Maybe that would be a little bit more accurate description.

Mr. Durham. Yes.

Note: Our discussion of the decision starts after 10 minutes.

During the entire month we’ve been waiting for a DC Circuit ruling on Trump’s immunity claim, I have argued we’d be better off with an opinion for which SCOTUS was likely to deny cert than a decision in which a — say — Judge Karen Henderson concurrence offered surface area for Justices to claw out review.

Before I explain why there’s a good shot that this opinion was worth the wait, let me review how SCOTUS came to uphold a Judge Chutkan opinion chipping away at Trump’s Executive Privilege claims for January 6. In that case, Trump was trying to prevent the Archives from sharing presidential documents with the January 6 Committee; because he was seeking to prevent something, it was actually easier to make appeals go faster. The appeals were resolved in 74 days:

• On November 9, 2021, Judge Chutkan rejected Trump’s attempt to enjoin the Archives from sharing his papers
• On November 30, a DC Circuit panel of three Democratic appointees heard his case; on December 9, the Circuit issued an opinion from Patricia Millet upholding Judge Chutkan
• On January 22, 2022, with only a dissent from Clarence Thomas, SCOTUS upheld the DC Circuit opinion; Justice Kavanaugh noted that, even if a more stringent standard were applied, Trump’s claim would still fail

This appeal has taken 67 days thus far:

• On December 1, Judge Chutkan, waiting less than 12 hours after the long-delayed issuance of an opinion in Blassingame holding that former Presidents are not immune from lawsuit when in the role of office-seeker, issued her ruling rejecting Trump’s immunity claim
• A bipartisan panel — Karen Henderson, Florence Pan, and Michelle Childs — heard Trump’s appeal on January 9
• The panel issued a strong per curiam opinion on February 6

In recent weeks, I had shown where there seemed to be disagreement on that panel, disagreements that are all resolved in the opinion.

Posture

Let’s start with the last one, what I called posture. Judge Henderson had originally not favored an expedited review. This order forces Trump into an expedited appeals process.

The Clerk is directed to withhold issuance of the mandate through February 12, 2024. If, within that period, Appellant notifies the Clerk in writing that he has filed an application with the Supreme Court for a stay of the mandate pending the filing of a petition for a writ of certiorari, the Clerk is directed to withhold issuance of the mandate pending the Supreme Court’s final disposition of the application. The filing of a petition for rehearing or rehearing en banc will not result in any withholding of the mandate, although the grant of rehearing or rehearing en banc would result in a recall of the mandate if the mandate has already issued.

The only way he can stop Judge Chutkan from issuing opinions on the remaining motions to dismiss filed last fall is if he immediately appeals to SCOTUS for a stay pending appeal, which he has already said he’d done. The only way he can get that stay is if five Justices say they think Trump will succeed on the merits and vote to grant the stay.

Steve Vladeck says that SCOTUS has a lot of options, but the two most likely are to deny the stay or to grant an appeal in this term, committing to an opinion by June.

Jurisdiction

At least by my read in the table, the one reason Pan and Childs couldn’t write their own opinion without Henderson was because Childs was much more cautious about whether the Circuit even had jurisdiction.

Nine pages of the opinion treat that question. It adopts two suggestions from Jack Smith’s prosecutor James Pearce. Most notably, it notes that SCOTUS has repeatedly given [former] Presidents get immediate appeals.

Nor was the question presented in Midland Asphalt anything like the one before us. Procedural rules are worlds different from a former President’s asserted immunity from federal criminal liability. The Supreme Court has repeatedly emphasized that the President is sui generis. In the civil context, the Court has held that the denial of the President’s assertion of absolute immunity is immediately appealable “[i]n light of the special solicitude due to claims alleging a threatened breach of essential Presidential prerogatives under the separation of powers.” Fitzgerald, 457 U.S. at 743. And in United States v. Nixon, the Court waived the typical requirement that the President risk contempt before appealing because it would be “unseemly” to require the President to do so “merely to trigger the procedural mechanism for review of the ruling.” 418 U.S. 683, 691–92 (1974). It would be equally “unseemly” for us to require that former President Trump first be tried in order to secure review of his immunity claim after final judgment.

Trump did not contest jurisdiction here, so it’s unlikely to be something that SCOTUS pursues (and if they did, then it would get bumped back to Chutkan for trial).

Go Big and [in a Footnote] Go Blassingame

Finally, I noted that Judge Henderson seemed to have concerns about the scope of their decision — what she described “floodgates” of follow-on charges. She at least considered the wisdom of limiting this opinion to a former President’s unofficial acts — in this case, defined as those of an office-seeker under Blassingame.

Rather than going Blassingame, though, the panel’s top line holding went Big.

The operative language in this opinion rejects the notion of Presidential immunity categorically as a violation of separation of powers.

At bottom, former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches. Presidential immunity against federal indictment would mean that, as to the President, the Congress could not legislate, the Executive could not prosecute and the Judiciary could not review. We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter. Careful evaluation of these concerns leads us to conclude that there is no functional justification for immunizing former Presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the Indictment. In so holding, we act, “not in derogation of the separation of powers, but to maintain their proper balance.” See Fitzgerald, 457 U.S. at 754. [my emphasis]

Even in that sweeping language, though, the opinion addresses the question of presidential immunity generally and specifically, as to the charges in the indictment.

The import of this move in resolving any disagreement on the panel is more clear elsewhere.

Perhaps most importantly, footnote 14, does something that Judge Chutkan also did. It said that because they reject the notion of categorical immunity, they don’t have to review whether the alleged crimes are official acts.

14 Because we conclude that former President Trump is not entitled to categorical immunity from criminal liability for assertedly “official” acts, it is unnecessary to explore whether executive immunity, if it applied here, would encompass his expansive definition of “official acts.” Nevertheless, we observe that his position appears to conflict with our recent decision in Blassingame, 87 F.4th at 1. According to the former President, any actions he took in his role as President should be considered “official,” including all the conduct alleged in the Indictment. Appellant’s Br. 41–42. But in Blassingame, taking the plaintiff’s allegations as true, we held that a President’s “actions constituting re-election campaign activity” are not “official” and can form the basis for civil liability. 87 F.4th at 17. In other words, if a President who is running for re-election acts “as office-seeker, not office-holder,” he is not immune even from civil suits. Id. at 4 (emphasis in original). Because the President has no official role in the certification of the Electoral College vote, much of the misconduct alleged in the Indictment reasonably can be viewed as that of an office-seeker — including allegedly organizing alternative slates of electors and attempting to pressure the Vice President and Members of the Congress to accept those electors in the certification proceeding. It is thus doubtful that “all five types of conduct alleged in the indictment constitute official acts.” Appellant’s Br. 42. [my empahsis]

But they say if they did have to review whether the indictment charged Trump for official acts, the fact that so many of the alleged acts in the indictment pertain to Trump’s role as an office-seeker, and because Presidents have no role in election certifications, the indictment would survive that more particular review anyway.

This is the kind of out that Justice Kavanaugh took on a related issue, whether the interests of Congress in reviewing an attack on the election certification preempted any Executive Privilege claims.

That is, both the District and Circuit have already said that, if they were asked to consider whether this indictment withstands an immunity claim, it substantially would.

I have no idea what SCOTUS will do. But by producing a unanimous opinion with little surface area for Justices to grab hold, Judges Henderson, Pan, and Childs may have ended up producing the most expeditious result.

The opinion is here. They’ve also issued the mandate on a tight clock.

Today, we affirm the denial. For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.

They did use collateral order doctrine to establish jurisdiction.

Although both parties agree that the Court has jurisdiction over former President Trump’s appeal, amicus curiae American Oversight raises a threshold question about our collateral-order jurisdiction. In every case, “we must assure ourselves of our jurisdiction.” In re Brewer, 863 F.3d 861, 868 (D.C. Cir. 2017). Under 28 U.S.C. § 1291, which grants us jurisdiction over “final decisions of the district courts,” id., “we ordinarily do not have jurisdiction to hear a defendant’s appeal in a criminal case prior to conviction and sentencing,” United States v. Andrews, 146 F.3d 933, 936 (D.C. Cir. 1998). The collateral-order doctrine, however, treats as final and thus allows us to exercise appellate jurisdiction over “a small class of [interlocutory] decisions that conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and are effectively unreviewable on appeal from a final judgment.” Citizens for Resp. & Ethics in Wash. v. Dep’t of Homeland Sec., 532 F.3d 860, 864 (D.C. Cir. 2008) (cleaned up). The district court’s denial of former President Trump’s immunity defense unquestionably satisfies the first two requirements and thus we focus our analysis on the third: whether the denial of immunity is effectively unreviewable on appeal from a final judgment.

Here’s how the opinion dealt with Trump’s Marbury argument. This language would have come from Judge Henderson (the opinion clearly has a lot of input from all three).

We therefore conclude that Article III courts may hear the charges alleged in the Indictment under the separation of powers doctrine, as explained in Marbury and its progeny and applied in the analogous contexts of legislative and judicial immunity. The Indictment charges that former President Trump violated criminal laws of general applicability. Acting against laws enacted by the Congress, he exercised power that was at its “lowest ebb.” Youngstown, 343 U.S. at 637 (Jackson, J., concurring). Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.

This part of the ruling could be seen as limiting it to Blassingame.

We note at the outset that our analysis is specific to the case before us, in which a former President has been indicted on federal criminal charges arising from his alleged conspiracy to overturn federal election results and unlawfully overstay his Presidential term.8

8 We do not address policy considerations implicated in the prosecution of a sitting President or in a state prosecution of a President, sitting or former.

The opinion straight up says Trump’s Take Care Clause argument is bunk.

The President, of course, also has a duty under the Take Care Clause to faithfully enforce the laws. This duty encompasses following the legal procedures for determining election results and ensuring that executive power vests in the new President at the constitutionally appointed time. To the extent former President Trump maintains that the post-2020 election litigation that his campaign and supporters unsuccessfully pursued implemented his Take Care duty, he is in error. See infra n.14. Former President Trump’s alleged conduct conflicts with his constitutional mandate to enforce the laws governing the process of electing the new President.

This is an argument that I thought Jack Smith didn’t push enough.

Former President Trump’s alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government. He allegedly injected himself into a process in which the President has no role — the counting and certifying of the Electoral College votes — thereby undermining constitutionally established procedures and the will of the Congress. To immunize former President Trump’s actions would “further . . . aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress.” Youngstown, 343 U.S. at 654 (Jackson, J., concurring) (footnote omitted). As Justice Jackson warned:

Executive power has the advantage of concentration in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear. No other personality in public life can begin to compete with him in access to the public mind through modern methods of communications. By his prestige as head of state and his influence upon public opinion he exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness.

Id. at 653–54 (Jackson, J., concurring).

We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results. Nor can we sanction his apparent contention that the Executive has carte blan che to violate the rights of individual citizens to vote and to have their votes count.

* * *

At bottom, former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches. Presidential immunity against federal indictment would mean that, as to the President, the Congress could not legislate, the Executive could not prosecute and the Judiciary could not review. We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter. Careful evaluation of these concerns leads us to conclude that there is no functional justification for immunizing former Presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the Indictment. In so holding, we act, “not in derogation of the separation of powers, but to maintain their proper balance.” See Fitzgerald, 457 U.S. at 754.

This section, turning Trump’s impeachment argument on its head, is the fruit of Florence Pan’s work in the hearing, surgically narrowing and then narrowing still further the issues.

Former President Trump agrees that the Impeachment Judgment Clause contemplates and permits the prosecution of a former President on criminal charges — he argues only that such a former President first must be impeached by the House and “convicted” by the Senate. Appellant’s Br. 12–14, 31. In other words, he asserts that, under the Clause, a former President enjoys immunity for any criminal acts committed while in office unless he is first impeached and convicted by the Congress. Under that theory, he claims that he is immune from prosecution because he was impeached and acquitted. By taking that position, former President Trump potentially narrows the parties’ dispute to whether he may face criminal charges in this case consistent with the Impeachment Judgment Clause: If the Clause requires an impeachment conviction first, he may not be prosecuted; but if it contains no such requirement, the Clause presents no impediment to his prosecution.

Former President Trump also implicitly concedes that there is no absolute bar to prosecuting assertedly “official” actions. He argues elsewhere in his brief that his impeachment on the charge of inciting insurrection was based on conduct that was the “same and closely related” to the “official acts” charged in the Indictment. Appellant’s Br. 46 (“President Trump was impeached and acquitted by the Senate for the same and closely related conduct to that alleged in the indictment.” (emphasis omitted)); id. at 42 (“[A]ll five types of conduct alleged in the indictment constitute official acts.”). And he agrees that if he had been convicted by the Senate in that impeachment trial, he would not be immune from prosecution for the “official acts” at issue here. See id. at 31. Thus, he concedes that a President can be prosecuted for broadly defined “official acts,” such as the ones alleged in the Indictment, under some circumstances, i.e., following an impeachment conviction. [my emphasis]

They note that Trump’s argument about Alexander Hamilton is followed immediately by Hamilton saying that Presidents must be unlike Kings.

To counter the historical evidence that explains the purpose of the Impeachment Judgment Clause, former President Trump turns to one sentence written by Alexander Hamilton in the Federalist 69: “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” The Federalist No. 69, at 337 (Alexander Hamilton) (Coventry House Publishing, 2015). He focuses on the word “afterwards” and suggests that a President is not “liable to prosecution and punishment” until “after[]” he has been impeached and convicted by the Senate. See Appellant’s Br. 14–15. But we think the more significant word in Hamilton’s statement is “liable,” which means “subject to.” Liable, 1 John Ash, New and Complete Dictionary of the English Language (1795). Hamilton specifies that a President would be subject to impeachment, trial, conviction and removal from office; and “afterwards” would be subject to prosecution and punishment, without regard to the verdict in the impeachment proceeding. 10 Moreover, in the very next sentence of the same essay, Hamilton stresses that the President must be unlike the “king of Great Britain,” who was “sacred and inviolable.” The Federalist No. 69, at 337–38. It strains credulity that Hamilton would have endorsed a reading of the Impeachment Judgment Clause that shields Presidents from all criminal accountability unless they are first impeached and convicted by the Congress.

The opinion names all the Senators who said they voted against impeachment because Trump was out of office.

Former President Trump’s interpretation also would permit the commission of crimes not readily categorized as impeachable (i.e., as “Treason, Bribery, or other high Crimes and Misdemeanors”) and, if thirty Senators are correct, crimes not discovered until after a President leaves office. See U.S. CONST. art. II, § 4; see also, e.g., 167 CONG. REC. S736 (daily ed. Feb. 13, 2021) (statement of Senate Minority Leader McConnell) (“We have no power to convict and disqualify a former office holder who is now a private citizen.”). 13

13 See also statements of Senators Barrasso, Blunt, Braun, Capito, Cornyn, Cramer, Crapo, Daines, Ernst, Fischer, Grassley, Hoeven, Hyde-Smith, Inhofe, Kennedy, Lankford, Lee, Lummis, Moran, Portman, Risch, Rounds, Rubio, Shelby, Sullivan, Thune, Tillis, Tuberville and Wicker.

Here’s another section on the import of Blassingame. They’re saying this decision is categorical — that is, there’s no need for analysis of whether these were official acts or not. But because Blassingame already ruled they were not, there’s no need to here.

14 Because we conclude that former President Trump is not entitled to categorical immunity from criminal liability for assertedly “official” acts, it is unnecessary to explore whether executive immunity, if it applied here, would encompass his expansive definition of “official acts.” Nevertheless, we observe that his position appears to conflict with our recent decision in Blassingame, 87 F.4th at 1. According to the former President, any actions he took in his role as President should be considered “official,” including all the conduct alleged in the Indictment. Appellant’s Br. 41–42. But in Blassingame, taking the plaintiff’s allegations as true, we held that a President’s “actions constituting re-election campaign activity” are not “official” and can form the basis for civil liability. 87 F.4th at 17. In other words, if a President who is running for re-election acts “as office-seeker, not office-holder,” he is not immune even from civil suits. Id. at 4 (emphasis in original). Because the President has no official role in the certification of the Electoral College vote, much of the misconduct alleged in the Indictment reasonably can be viewed as that of an office-seeker — including allegedly organizing alternative slates of electors and attempting to pressure the Vice President and Members of the Congress to accept those electors in the certification proceeding. It is thus doubtful that “all five types of conduct alleged in the indictment constitute official acts.” Appellant’s Br. 42.

The opinion does rely, in part, on the fact that Jack Smith didn’t charge incitement to insurrection to dismiss Trump’s double jeopardy claim (I had wondered if Smith would add that charge based on the outcome here).

To the extent former President Trump relies on “double jeopardy principles” beyond the text of the Impeachment Judgment Clause, those principles cut against him. The Double Jeopardy Clause provides: “No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. CONST. amend. V. It has been interpreted to prohibit “imposition of multiple criminal punishments for the same offense.” Hudson v. United States, 522 U.S. 93, 99 (1997) (citation omitted). Under precedent interpreting the Double Jeopardy Clause, former President Trump’s impeachment acquittal does not bar his subsequent criminal prosecution for two reasons: (1) An impeachment does not result in criminal punishments; and (2) the Indictment does not charge the same offense as the single count in the Impeachment Resolution.

[snip]

Even if we assume that an impeachment trial is criminal under the Double Jeopardy Clause, the crimes alleged in the Indictment differ from the offense for which President Trump was impeached. In determining whether two charges are the “same” for double-jeopardy purposes, courts apply “the sameelements test” (also known as the “Blockburger test”): If “each offense contains an element not contained in the other,” the offenses are different. United States v. Dixon, 509 U.S. 688, 696 (1993) (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)) (cleaned up). If the charges at issue are not the “same offense” under that test, double jeopardy does not bar prosecution. Id. at 696–97.

Under the Blockburger test, none of the four offenses alleged in the Indictment is the same as the sole offense charged in the article of impeachment. The indicted criminal counts include conspiracy to defraud the United States under 18 U.S.C. § 371; conspiracy to obstruct and obstructing an official proceeding under 18 U.S.C. §§ 1512(c)(2), (k); and conspiracy to deprive one or more individuals of the right to vote under 18 U.S.C. § 241. See Indictment ¶¶ 6, 126, 128, 130. By contrast, the article of impeachment charged former President Trump with incitement of insurrection. See H.R. Res. 24, 117th Cong. (2021). Each of the indicted charges requires proof of an element other than those required for incitement. And the offense of incitement of insurrection requires proof of incitement — an element that is distinct from those associated with each of the crimes of indictment. In other words, the charges are not the same under a straightforward application of the Blockburger test.

[my emphasis]

Like everyone else, I anxiously await the DC Circuit decision on Trump’s immunity bid.

Unlike most people, I’m not yet convinced that the delay so far stems from Judge Karen Henderson deliberately stalling the decision.

To be sure, I identified Henderson as the key target for persuasion before the hearing. I even suggested she might happily join an opinion holding that unofficial acts may be charged criminally, without ruling regarding official acts.

Her statements at the hearing on immunity were a pleasant surprise; it seems she’ll easily reach that position, adopting at least the Blassingame standard that former Presidents can be charged for unofficial acts, like starting a coup to try to stay in office.

So, as I said, I’m still not convinced she’s stalling.

That’s because the decision is more complicated than most commentators appreciate.

There are three decisions in front of these judges. First, whether or not the court has jurisdiction to rule at all. Then, whether they should just rule for unofficial acts, like launching a coup to get reelected, or whether they should rule, generally, that Presidents can even be prosecuted for their official acts, like pardoning Roger Stone to buy his silence. Finally, they need to decide how to release the opinion, possibly in a way to give Trump fewer options to stall further.

Because the American Oversight amicus — a pretty convincing one! — raised a question about whether the DC Circuit had jurisdiction, it caused a potential split between Florence Pan and Michelle Childs, both Biden appointees, who otherwise seemed to agree on the scope of their ruling. Childs seemed very persuaded by the AO brief, and so very cautious about their basis to rule at all.

As a result, there’s no natural majority, meaning whatever opinion(s) get written will be far harder to map out. It is simply a far harder opinion than most people think, and if they get this wrong, it’s going to lead to far longer delays at both the en banc and SCOTUS level.

Talk to me in two weeks. If we’ve got no ruling then, I’m happy to start entertaining theories about deliberate delay.

What I don’t understand, however, is how the visible panic of a few TV lawyers who’ve been wrong every step of the way on the January 6 investigation has led to an all-out panic among Democrats.

The result has been self-inflicted impotence.

No judicial outcome will ever be sufficient, by itself, to beat Trump. No realistic Democrat should be staking their electoral hopes on one or some guilty verdicts — not because they wouldn’t help, but because you can’t control that.

Every single person reading this has in their power the ability to do something — whether it’s local electoral work, repeating discussions of Trump’s corruption so much that it begins to drown out stories about Hunter Biden, or educating your neighbors about Trump’s central role in rolling back reproductive choice — to help defeat Trump. Every second you spend worrying about Karen Henderson is time you’re not doing whatever it is that will be most useful in defeating Trump.

Stop making yourself impotent by worrying about the court cases. Stop hoping that any court case is going to be the Magical Sparkle Pony that makes this easy. Stop wallowing in provably false conspiracy theories about the January 6 investigation that ignore a bunch of public things the TV lawyers don’t talk about.

This is not going to be easy, I promise you. Find some way to make yourself useful to make it, at least, easier.

In both a footnote of his reply motion for discovery …

1 The prosecution’s opposition briefs reveal some new evidentiary issues (e.g., seizing electronic evidence for the gun charges for the first time pursuant to a December 4, 2023 warrant; using a grand jury in California in connection with the tax case to elicit evidence for already-indicted gun charges in Delaware; seeking a search warrant in December 2023 to search for evidence in support of its charges three months after having charged; testing a leather pouch for cocaine residue in October 2023 that it had in its possession for five years; denying there was Probation’s approval for the diversion agreement) in addition to those raised in Mr. Biden’s motions to dismiss themselves (e.g., how a Delaware agreement for a diverted gun charge and two tax misdemeanors turned into multiple felonies in two jurisdictions following massive political pressure to do just that). Based on the prosecution’s admissions made only recently in its filings, Mr. Biden will expeditiously file a motion to suppress improperly gathered evidence. [my emphasis]

And two footnotes in his motion to compel …

3 The search warrant on December 4, 2023, which post-dates the firearm indictment by almost three months, is the first time in the course of this five-year investigation that DOJ obtained a warrant to search the alleged laptop (and iCloud account and backup data) for evidence of federal firearms violations. The prosecution then used that warrant to purportedly review and seize, for the first time, text messages, photos, and other evidence in support of its felony charges, several of which the prosecution cited in its pleadings on January 16, 2024. (See DE 68 at 8–9.) Moreover, that warrant contained testimony (in support of finding probable cause) about the firearm obtained from a witness in a grand jury empaneled in the Central District of California in November 2023 after this indictment had already been brought. Accordingly, the issue raised—as a result of the prosecution’s recent filings—is one to explore at the evidentiary hearing Mr. Biden requested (DE 64) and a motion to suppress which will be filed promptly.

[snip]

18 Citing District of Delaware Search Warrant No. 23-507M. Unlike the Office’s prior search warrants during the five-year investigation that were for tax, financial, or foreign-business related offenses, this warrant was specifically for offenses pertaining to 18 U.S.C. §§ 922, 924 (firearms offenses). See supra n.3, and a further motion to suppress concerning this December 4, 2023 search will be forthcoming. [my emphasis]

Hunter Biden attorney Abbe Lowell said he would soon be filing a motion to suppress “improperly gathered evidence.”

Part of this will likely be a challenge to the belated pretextual testing of the gun for cocaine residue without also testing for fingerprints and dating of the residue to the time period immediately after Hunter purchased a gun.

But in all three footnotes, he promises to challenge the December 4, 2023 warrant, which would implicate the original search warrant to Apple, the exploitation of the laptop, and follow-on searches for four devices backed up to his iCloud:

• iPhone X (Apple Backup 1)
• iPhone 6S (Apple Backup 3)
• iPad Pro (Apple Backup 4)
• iPhone XR (Apple Backup 11)

After over three years of controversy about the laptop attributed to Hunter Biden, this challenge may finally unpack the reliability of the device that has driven right wing frothers nuts ever since.

Game on!

There’s a variety of things that Lowell might rely on to challenge the use of the laptop — and possibly, the four backed up devices, as fruits of the laptop — some sound and some less so. They include:

• A complaint that David Weiss used testimony obtained from a Los Angeles grand jury focused on tax crimes to obtain the December 2023 warrant, which will almost certainly be dismissed as normal prosecutorial dickishness.
• If any of the devices entirely predate 2018, there should be no probable cause to search them for the 2018 charges. Based on emails available at BidenLaptopEmails dot com, Hunter Biden started using at least three different iPhone Xes in 2018 (but at least one of those was likely lost to hostile people). He had an iPhone 6S with the droidhunter account he used to access adult entertainment in early 2019, though the only known iPhone XR may have been tied to that account, rather than his Rosemont Seneca account (or there could be a later one). Otherwise, his iPhone 6S use appears to have significantly predated 2018. An iPad backed up to the laptop is an iPad Pro, which itself dates to 2016, and much of Hunter Biden’s known iPad Pro use was also in 2016 and earlier, which is the time frame investigators were most interested when they obtained those warrants.
• The fact that, per Gary Shapley’s notes, the FBI never validated when the files loaded onto the laptop were added to it in the first 10 months they used it (which also means they did not do so before obtaining four backup devices partly relying on it).
• John Paul Mac Isaac’s acknowledgment that when his father first went to the FBI, the FBI agent with whom he spoke advised, “you should get a lawyer [because] You may be in possession of something you don’t own.”
• JPMI’s description that the FBI was trying to boot up the laptop on December 9, 2019, before the FBI had the December 13, 2019 warrant.
• The fact that the Attorney General’s Chief of Staff texted the Attorney General that he was sending him a laptop the day after the FBI obtained the known December 13, 2019 warrant, suggesting the laptop may have been used for something else, like potential impeachment defense.
• Also per Shapley’s notes, that some of the means FBI used to determine the laptop was once associated with Hunter’s iCloud account — including call and email traffic with John Paul Mac Isaac and a cigar purchase made locally the day of the drop-off — could easily be spoofed by anyone in possession of the laptop.
• The fact that, for two and a half months by the time the FBI claimed to have validated that the laptop was Hunter Biden’s, they had had full access for Hunter’s iCloud (and almost certainly had access to Hunter Biden’s Rosemont Seneca Google account for at least that long), which would have given them full access to a bunch of metadata that very much should have raised concerns about who had control of Hunter’s devices at any given time.

Those are just some of the potential bases for a Fourth Amendment challenge to using the laptop as evidence. There may be more.

It’s the last bullet that I want to focus on here. Shapley’s notes show that on November 6, 2019 — over a month after obtaining Hunter’s full iCloud account on September 25, 2019 — Josh Wilson used the serial number provided by JPMI and “determined that device was registered to [Hunter Biden] via apple ID account/iCloud account.”

It is absolutely the case that at 8:50AM Delaware time on October 21, 2018 — nine days after Hunter bought a gun and two days before he no longer possessed it — the laptop that would eventually end up at the FBI logged into Hunter’s iCloud account, though unlike some devices before and after, there’s no public confirmation of a tie to Apple directly, such as Apple welcoming him to a new computer or a receipt.

But there’s something unusual about what came next.

Normally, when Hunter Biden started using one of the new devices that can be clearly tied to his account, he would log into iCloud, then shortly thereafter log into one or another of his two Google accounts, Rosemont Seneca and/or droidhunter. As a result, Google would send security alerts to both the Gmail account and a whichever of the iCloud emails were set as backup.

For example, after Hunter bought a new laptop (possibly the laptop found at Keith Ablow’s in March 2019) on August 31, 2018, he signed into his iCloud account the next day, then, also on September 1, signed into his droidhunter Gmail account, then into his Rosemont Seneca account on September 2.

Someone signed into one of his new replacement iPhones, ordered through Asurion, on October 14 and then, on October 17, signed into his Rosemont Seneca Gmail account.

Someone signed into a new iPhone 8 Plus on October 23, 2018 — possibly the other replacement phone from Asurion — and then signed into his Rosemont Seneca Gmail account that same day.

Things are a bit fuzzier with some phones replaced through Apple the next spring, after his life was packed up on a laptop for delivery to John Paul Mac Isaac.

On February 21, 2019, he got a new iPhone, associated with his droidhunter account, and signed in on his droidhunter Gmail right away.

On March 1, 2019, he got a new iPhone XR — possibly the one obtained with the 2020 warrant. Then bought an adult themed App on March 7, then signed into his droidhunter email on March 9.

There are an astounding number of other devices used to log into one or another account associated with Hunter Biden’s digital life. But for recognizable device replacements, the pattern generally holds: Sign into Apple, then sign into Google.

But based on what is available on the public emails, after someone logged into Hunter’s iCloud account with a new laptop on October 21, 2018, it was weeks before a new Mac device logged into his Gmail accounts, starting with a November 16 attempt to log into Rosemont Seneca that was rejected by Google, followed by a reset of the droidhunter account and a login into that on November 20, followed by a login into Rosemont Seneca on November 24. Not only did those attempts come in the midst of a bunch of attempts to get into Hunter Biden’s Twitter account from a Mac. But on November 27, someone appears to have gotten into his iCloud account from Troutdale, OR.

New Mac devices also accessed Hunter’s Rosemont Seneca account on February 9 and February 20, 2019.

As I’ve already described, a great deal of Hunter Biden’s “normal” activity on his devices in this period looked like he was hacking himself. For example, on at least 36 occasions in 2017 and 2018, Wells Fargo shut down Hunter’s online access because of activity that looked, to it, like a hack. Many if not most of that was probably, instead, just Hunter Biden doing erratic things. In other cases, it’s impossible without more data to show whether a particular access or expenditure was Hunter himself, someone who had acquired one of his devices, or someone more malicious.

But there is a pattern, and the laptop ultimately shared with the FBI, he deviated from that pattern.

Certainly, David Weiss might argue that the FBI just hadn’t looked at Hunter Biden’s digital fingerprints that closely when they got a warrant on December 13, 2019.

But they’ve had five years to look at it in the interim period, and might have a harder time arguing that this pattern was normal.

Update: Just catching up to the Delaware docket (JPMI’s suit and Hunter’s countersuit). Judge Robert Robinson will hold hearings in everyone’s motions on February 22.

Update: Abbe Lowell has amended his lawsuit against the IRS, tweaking it to make statements that lawyers for Joseph Ziegler and Gary Shapley made. He told Mark Scarsi had had some motion regarding the disgruntled agents, so I expect this filing will be cited in that motion.

There was something subtle but potentially important in Abbe Lowell’s motion to compel discovery in Hunter Biden’s gun case.

First, after discussing the discovery requests he sent in October and November, he described reminding prosecutors (this is actually in the October letter) that Leo Wise had assured Judge Maryellen Noreika on July 26 that prosecutors had provided all Brady materials.

Mr. Biden reminded the prosecution that this Court ordered the production of Brady materials on July 26 and October 3 and asked the prosecution to confirm whether further productions were forthcoming, or Mr. Biden would need to move to compel. Id. As the Court may recall, the prosecution told the Court at the July 26 hearing that it had already produced all Brady material. (7/26/23 Tr. at 7 (“THE COURT: Has all Brady material been produced? MR. WISE: Yes, Your Honor”.).) Yet, the prosecution did not send the first production for almost three months, until October 12, 2023, with a cover letter noting its production was “in response” to Mr. Biden’s October 8 letter requesting discovery. [emphasis original]

Then, later in the motion, Lowell described that the Delaware case file prosecutors didn’t provide until October 12 — in response to the October 8 letter — included a declination decision.

Despite assuring the Court all Brady material had been produced on July 26, 2023, since then, the prosecution has produced an October 2018 state police case file of the firearm incident that includes interview memoranda and deliberations among Delaware state prosecutors regarding whether to file charges—per the file, on October 30, 2018, after reviewing the facts, New Castle County prosecutors decided not to prosecute and closed the case. [emphasis original]

A decision not to charge for state crimes would be helpful but not definitive at a trial on federal charges. But it pretty clearly is helpful to Hunter Biden’s defense.

And yet, prosecutors hadn’t provided it to Chris Clark before, on July 26, Leo Wise assured Judge Noreika that prosecutors had provided all Brady.

I suspect the motion to compel is designed as much as a challenge — “is this your final answer?” — before Lowell makes further allegations that prosecutors withheld material helpful to Hunter’s defense. That is, I suspect Lowell knows of certain things, perhaps the memos that Joseph Ziegler’s original supervisor, Matthew Kutz, included in the case file documenting improper political influence, that also clearly count as Brady that he hasn’t received yet.

That said, I suspect there was a pretty good reason prosecutors didn’t bother to give Clark that Delaware case file before the hearing on July 26: because there was never any consideration of actually charging Hunter on the gun crimes. That is, whatever Brady they provided was likely focused on the tax case, not the gun one, because the gun charge was never going to be charged.

Until Leo Wise, who assured Judge Noreika that prosecutors had complied with Brady, decided that he was going to charge those gun crimes.

Particularly given DOJ’s increased focus on such things in recent years after some really big Brady violations, a serious Brady violation is one of the few things that would actually give Merrick Garland cause to shut down David Weiss as Special Counsel.

The declination decision, turned over a month after the indictment, isn’t that, yet. For Leo Wise, who assured the judge in this case that all Brady had been turned over, however, it’s a detail that might be more convenient if treated as proof they weren’t going to charge gun crimes before they did.