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The Comings and Goings from Stephen Miller’s Gulag
Let’s start with the good news, not least because the good news may explain some of the bad news.
Habeas Corpus still exists in the US
In the last several weeks, judges in Vermont and Alexandria, VA, have ordered the government to free Mohsen Mahdawi, Rumeysa Ozturk, and Badar Khan Suri from custody. Their release does not end their legal fight over whether Trump can deport them for their First Amendment protected speech or not. But they will be able to continue their academic work, live at home, and make public comments while those legal proceedings go forward.
Now the horrible news.
As noted above, some of the releases were ordered by Federal judges in Vermont — William Sessions in the case of Ozturk and Geoffrey Crawford in the case of Mahdawi.
Yesterday, detained Harvard genetics researcher Kseniia Petrova had a hearing before a third Vermont judge, Chief Judge Christina Reiss. Anna Bower live-skeeted it here.
Petrova’s case differs from the others in several ways. She wasn’t detained for her First Amendment protected speech. Rather, she was detained because she didn’t declare frog samples from France she was carrying back to Harvard for her research at the border.
And while the government’s public actions to date — a quick transfer for Petrova to Louisiana in a transparent attempt to make any habeas corpus challenge more difficult — look quite similar, the legal posture was different for several reasons: a Customs and Border Patrol Officer had reportedly canceled her visa themselves upon discovering the samples (an offense that is normally let off with a warning). Petrova had agreed to leave the country, so long as she wasn’t deported to her native Russia, where she credibly expects she’d be harshly persecuted for her speech there. Because of that threat, Petrova also started applying for asylum.
But as laid out in the hearing yesterday, Petrova had always said she’d be willing to leave for France, and the government still publicly maintained they wanted to deport her to Russia.
Judge Reiss noted that she had reviewed the statute laying out the grounds for customs officers to find someone inadmissible to the United States, and “I don’t see anything about customs violations.”
Jeffrey M. Hartman, an attorney representing the Department of Justice, said “it’s the secretary of state’s authority” to cancel a visa, and that the secretary has delegated that authority to customs officials.
“The C.B.P. office was our first line of defense against unknown biological materials from a foreign national out of a port of entry,” he said.
Mr. Hartman argued that the federal court in Vermont had no jurisdiction over Ms. Petrova’s detention. He said Ms. Petrova may contest her detention, but only in an immigration court in Louisiana, where ICE is holding her.
“It’s not something that a district court can entertain,” he said. “We think the proper venue for that question is Louisiana, where she is detained and where her custodian is.”
“But she is only detained there because you moved her,” said the judge.
Judge Reiss asked the government to clarify whether or not it planned to deport Ms. Petrova to Russia.
“You are asking for her removal to Russia?” she asked.
“Yes, your honor,” Mr. Hartman replied.
Shortly after telling Judge Reiss that the government wanted to deport Petrova to Russia, DOJ instead unsealed a criminal complaint against Petrova, obtained on Monday (the first business day after Ozturk’s release), saying they actually want to prosecute Petrova for crimes that can impose up to a 20-year sentence.
Two months after detaining Petrova, as judges in Vermont free targets of Stephen Miller’s witch hunt and as problems with the unilateral revocation of her visa become clear, the government suddenly decided Petrova engaged in smuggling, without taking the time to present the case to a grand jury first.
The key paragraph of this complaint claims that Petrova prevaricated when asked about carrying biological materials and whether she knew she had to declare them, first denying she had biological material, then admitting she did.
PETROVA was asked to present herself at the secondary inspection area. She was wearing a backpack and carrying a plastic bag. When questioned about her luggage, PETROVA denied carrying any biological material. When the CBP officer asked her again, PETROVA identified the plastic bag she was carrying as having biological material. An inspection of the bag revealed a foam box containing frog embryos in microcentrifuges, as well as embryo slides. A CBP officer interviewed PETROVA under oath and conducted a manual review of her cell phone. PETROVA admitted that the items in her duffle bag and in the plastic bag were biological specimens. PETROVA was asked if she knew that she was supposed to declare biological material when entering the United States. After a long pause, she answered she was not sure. The CBP officer then confronted PETROVA with a text message on her phone from an individual who she identified as her colleague at a Boston-area medical school, where she is currently a research assistant. The individual wrote, “if you bring samples or antibody back make sure you get the permission etc. Like that link I sent to leon-/group chat about frog embryos because TSA went through my bags at customs in Boston.” When asked again whether she knew she was supposed to declare the items, she responded that she “was not sure about embryos specifically”
Even though the government maintains that they have to deport Petrova to Russia, not France, they make much of her past work in a Russian research lab, as if she’s some Russian threat, even while treating her fear of deportation as feigned.
11. PETROVA told CBP agents that she was educated in Russia and worked at the Moscow Center for Genetics as a bioinformatician of genetic disorders from 2016 to 2023. When asked if this was a Russian government institution, she replied that about half of the scientists worked for the Russian government and the other half for hospitals. She also stated that she was most recently employed by the Institute of Genetic Biology in Moscow from 2023 to 2024.
Again, on its face, this looks like the government’s bid to ratchet up its attack in the face of embarrassing setbacks in Petrova’s case. I wonder if they would have unsealed this if not for what looked like a pending loss before Judge Reiss and possibly even this powerful op-ed from Petrova, published by NYT on Tuesday, implicitly likening the plight of scientists in Russia to increasing threats in the US.
The political environment in Russia made it hard to do science because everything was unpredictable. The war in Ukraine affected scientists’ ability to get funding and materials; we worried that our male colleagues might be conscripted. That type of uncertainty is incompatible with science, which requires the ability to plan what type of experiments and research you will do a year into the future. I fear that if I return to Russia I will be arrested.
I am hesitant to comment broadly on what it’s like for scientists now in America because I have only limited information about what is going on outside of this detention center. What I do know is that my colleagues, many of whom are, like me, foreign scientists, are terrified of being detained or having their visa status revoked.
One more thing may have convinced the government to charge Petrova, though.
As pattern jury instructions on the charge lay out, to prove the case against Petrova, the government must prove that Petrova had the intent of defrauding the government.
To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt:
[snip]
Third: the defendant acted knowingly and willfully with intent to defraud the United States. [It is not necessary, however, to prove that any tax or duty was owed on the merchandise.]
[Fourth: the defendant did something which was a substantial step toward committing [crime charged], with all of you agreeing as to what constituted the substantial step. Mere preparation is not a substantial step toward committing [crime charged], rather the government must prove that the defendant, with the intent of committing [crime charged], did some overt act adapted to, approximating, and which in the ordinary and likely course of things would result in, the commission of [crime charged].
To act with “intent to defraud” means to act with intent to deceive or cheat someone.
To prove this, the government will have to call the people with whom Petrova discussed how to address the samples at customs.
9. Another text message on PETROVA’s phone contained the following question from her medical school colleague: “What is your plan to pass the American [referred to as US in PETROVA’s interview] Customs with samples? This is the most delicate place of the trajectory.”
10. The CBP officer confronted PETROVA with another text message between her and another individual who she identified as her principal investigator in which she was asked by this individual: “what is your plan for getting through customs with samples?” To that question, PETROVA replied, “No plan yet. I won’t be able to swallow them.
That is, this will put Petrova’s lab on trial, with her colleagues either forced to testify against her or possibly implicated with it, as if there’s some great conspiracy against the United States to … do science.
DOJ unsealed this complaint on Tuesday, after Harvard expanded its lawsuit against the US, adding the retaliation Trump has taken in response to Harvard’s initial lawsuit.
7. In response to Harvard’s defense of its own constitutional freedoms, the federal Government announced that it was freezing “$2.2 billion in multiyear grants and $60M in multiyear contract value to Harvard University” (the “April 14 Freeze Order,” attached as Exhibit C). Ex. C at 2. Within hours of the April 14 Freeze Order, Harvard began receiving stop work orders. And the situation is getting worse. On April 20, it was reported that the Government is “planning to pull an additional $1 billion of [Harvard]’s funding for health research.”6 On May 5, the Secretary of Education, purporting to speak on behalf of every agency and department, announced an “end of new grants for the University,” and directed that “Harvard should no longer seek GRANTS from the federal government, since none will be provided,” and “Harvard will cease to be a publicly funded institution” (the “May 5 Letter” or “May 5 Freeze Order,” attached as Exhibit D). Ex. D at 3-4. That announcement reiterated the Government’s earlier demands and said it was based, among other things, on the Government’s assessment of Harvard’s “academic rigor,” admissions requirements and practices, grading systems, faculty hiring, teaching, and course construction. Id. at 2. The April 14 Freeze Order and May 5 Freeze Order are collectively referred to herein as the “Freeze Orders.”
8. Following in the footsteps of the April 14 and May 5 Freeze Orders, Harvard began, starting on May 6, to receive institution-wide termination notices for various agencies, invoking the earlier April 11 and 14 communications. On May 6, for example, the National Institutes of Health sent Harvard a letter stating that it was terminating all of Harvard’s grant funding from that agency based on “the University’s unwillingness to take corrective action or implement necessary reforms” and that Harvard’s grant “awards no longer effectuate agency priorities” because of “recent events at Harvard University involving antisemitic action” and “Harvard’s ongoing inaction in the face of repeated and severe harassment and targeting of Jewish students” (the “May 6 Letter” or “May 6 NIH Termination Letter,” attached as Exhibit E). Ex. E at 2-3. The letter states that “NIH generally will suspend (rather than immediately terminate) a grant and allow the recipient an opportunity to take appropriate corrective action,” but “no corrective action is possible here.” Id. at 3.
And the escalation continues. In the last week, Trump announced more cuts on funding to Harvard as well as an EEOC investigation into a faculty that underrepresents women and people of color, claiming it discriminates against people who look like Stephen Miller.
Charging Petrova for daring to commit science in the United States is undoubtedly a way to rescue a legally problematic case against her. It’s also another way to put Harvard’s defense of scholarship on trial.
Perhaps it is an auspicious sign, then, that British professors just determined that a copy of the Magna Carta that Harvard bought for $30 in 1946, thinking it was a copy made in 1327, is in fact a seventh original of the 1300 document.
British researchers have determined that a “copy” of the Magna Carta owned by the Harvard Law School Library is a rare original issued by England’s King Edward I in 1300. The copy was previously thought to date back to 1327.
The Magna Carta, issued by King John in 1215, established that the monarch is a subject under the law, just like any other citizen. It was reissued a number of times throughout the thirteenth century, and was released for the final time with the king’s seal in 1300.
Seven original charters issued by King Edward I are known to exist. Six copies are in the United Kingdom, while Harvard Law School’s Magna Carta is now the only known copy abroad.
The discovery was made by David Carpenter, a professor at King’s College London, and Nicholas Vincent, a professor at the University of East Anglia. Carpenter, a Magna Carta expert, was researching unofficial copies of the charter and suspected the Law School’s copy was actually an original. He then worked with Vincent, another Magna Carta expert, to investigate further.
The charter, an agreement between the King of England and rebel barons, gave way to the idea of a limited government and inspired the writers of the U.S. Constitution and Bill of Rights. In a joint press release between the three universities, Vincent called it “the most famous single document in the history of the world.”
All this time, an original document enshrining habeas corpus — the legal right Petrova was asserting, the legal right that got Mahdawi, Ozturk, and Suri released, the legal right Stephen Miller wants to suspend — was sitting right there in Boston, where the fight for American freedom started.
There will be multiple other developments in Stephen Miller’s deportation regime today.
SCOTUS will review whether judges can issue nationwide injunctions on matters — birthright citizenship — that necessary apply nationwide.
Hannah Dugan
Judge Hannah Dugan will be arraigned in Milwaukee on an indictment obtained Tuesday. The indictment claims, with no context, that Dugan “falsely [told the ICE team] they needed a judicial warrant to effective the arrest of [Eduardo Flores-Ruiz].” That claim goes beyond anything mentioned in the complaint and likely misrepresents the intent of Dugan’s comment. The indictment similarly provides no context for Dugan’s order directing the ICE team to go to the Chief Judge’s office, who was still working on a policy covering such issues; nor does it mention that there was no policy that Dugan violated.
The indictment also makes clear that the grand jury obtained testimony from Flores-Ruiz’ attorney, claiming that Dugan,
advis[ed] E.F.R.’s counsel that E.F.R. could appear by “Zoom” for his next court date.
But having spoken to Flores-Ruiz’ attorney, there’s still no allegation that Dugan told her that ICE was in the courthouse. This means the government lacks that kind of evidence that might substantiate corrupt intent, making it a much weaker case than the one against Judge Shelly Joseph back in 2019.
Nothing about this case has gotten stronger at the indictment stage. It still appears to lack any evidence about Dugan’s intent.
That said, the indictment is not a ham sandwich either. The government has clearly provided probable cause that a person who knew of an administrative arrest warrant made it difficult for ICE to arrest someone.
There’s no evidence that prosecutors explained why Dugan’s question about an administrative versus judicial warrant is actually exculpatory. Likewise, there’s no evidence that prosecutors told the grand jury that two DEA agents from the ICE team had the opportunity to detain Flores-Ruiz in the hallway there were staking out. And the matter of judicial immunity, which was left for an appellate phase that never happened in Joseph’s case (the Biden DOJ dismissed the case), would not have been briefed to the grand jury.
The latter detail, judicial immunity, may be litigated more aggressively than it was for Judge Joseph because of actions Trump took.
Yesterday, Dugan filed a motion to dismiss the case based on judicial immunity. The motion cited Trump’s own successful attempt to avoid any trial based on his claim of immunity three times.
The problems with this prosecution are legion, but most immediately, the government cannot prosecute Judge Dugan because she is entitled to judicial immunity for her official acts. Immunity is not a defense to the prosecution to be determined later by a jury or court; it is an absolute bar to the prosecution at the outset. See Trump v. United States, 603 U.S. 593, 630 (2024).
[snip]
Judge Dugan’s subjective motivations are irrelevant to immunity. “Judges are entitled to absolute immunity for their judicial acts, without regard to the motive with which those acts are allegedly performed.” Id.; accord Trump v. United States, 603 U.S. at 618 (“In dividing official from unofficial conduct, courts may not inquire into the President’s motives”).
[snip]
Judge Dugan therefore has both immunity from conviction and immunity from prosecution. “The essence of immunity ‘is its possessor’s entitlement not to have to answer for [her] conduct’ in court.” Trump, 603 U.S. at 630, quoting Mitchell v. Forsyth, 472 U.S. 511, 525 (1985); Mitchell, 472 U.S. at 526 (“The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.”) (emphasis in original)
This last citation adopts John Sauer’s own reliance on civil, not criminal, liability. A citation to Mitchell itself would be inapt (a criticism some people are making); but Dugan is citing the current Solicitor General’s inapt reliance on it, not the case directly. Effectively, Dugan is saying that if Trump can avoid trial for anything covered by his official duties, than so can Dugan.
Ras Baraka
Ras Baraka will also have a hearing in his prosecution for misdemeanor trespassing today. As with Dugan’s case, there’s reason to believe Trump’s public comments about the case are overblown.
To substantiate the misdemeanor trespassing charge against him, the complaint against Newark’s Mayor does not make the claims that Alina Habba made publicly, that Baraka was repeatedly asked to leave. Rather, HSI Special Agent in Charge Ricky Patel relied only on the no trespassing signs and the presence of security guards.
3. The Delaney Hall Facility is surrounded by chain-link fences and is accessible only through granted access. In addition to maintaining security, it likewise displays No Trespassing signage.
But video shows that after security guards asked Baraka to leave (after first letting him in), he did. The arrest happened on public ground, not in the facility itself. The video undermines the complaint as attested.
In advance of today’s hearing, the AUSA who presented the case on Friday was swapped out for Alina Habba herself and another AUSA, often a sign under this Administration that an attorney wasn’t telling the lies the government wants to tell.
Having made that swap, Habba tried to get today’s hearing canceled (though she couldn’t even manage to get the date right!), so they could move right to trial.
The Government writes with respect to the upcoming preliminary hearing scheduled for Thursday, May 12, 2025. The Government does not believe that a preliminary hearing is warranted in this case. Under Fed. R. Crim. P. 5.1(a), “[i]f a defendant is charged with an offense other than a petty offense, a magistrate judge must conduct a preliminary hearing unless” certain conditions are satisfied. Fed. R. Crim. P. 5.1(a) (emphasis added). Here, the charge is a petty offense. Under state law, assimilated under 18 U.S.C. § 13, the statutory maximum sentence is 30 days. That means the offense is a class C misdemeanor under federal law. See 18 U.S.C. § 3559(a). That, in turn, means that it’s a “petty offense” under federal law. See 18 U.S.C. § 19. Defendant, therefore, is not entitled to a preliminary hearing under Rule 5.1. See United States v. Radin, No. 16 Cr. 528, 2017 U.S. Dist. LEXIS 77783, 2017 WL 2226595 (S.D.N.Y. May 22, 2017).
The Government requests that the Court cancel the preliminary hearing and schedule this matter for trial at an appropriate time. [my emphasis]
Magistrate Judge André Espinosa, to whom Patel didn’t disclose that Baraka left the facilities when asked, was having none of that. He granted Habba’s request to vacate a preliminary hearing as unnecessary, but in the same order, granted Baraka’s request for a status conference to be held at the previously scheduled time.
WHEREAS the United States of America (the “Government”), by way of a May 13, 2025 letter brief emailed to the Court and all counsel, now seeks cancellation of that hearing, arguing that it is not required under Federal Rule of Criminal Procedure Rule 5.1; and
WHEREAS the clear language of Rule 5.1(a) does not require a preliminary hearing when a defendant is charged with a petty offense; and
WHEREAS the offense charged in this action carries a maximum penalty of 30 days’ imprisonment, making it a Class C misdemeanor, see 18 U.S.C. § 3559(a), and constituting a “petty offense” under federal law. See 18 U.S.C. § 19; and
WHEREAS, nevertheless, by way of email correspondence to the Court, copying counsel for the Government, counsel for Defendant has sought a status conference on the same date and at the same time, if the preliminary hearing does not proceed; therefore
IT IS on this 13th day of May 2025,
ORDERED that the Court’s May 9, 2025 oral Order setting a preliminary hearing in this action for May 15, 2025, at 10:00 a.m., is VACATED; and it is further
ORDERED that the Court will hold a status conference in this action on May 15, 2025, at 10:00 a.m., in Courtroom 2D of the Martin Luther King Courthouse, in Newark, at which all counsel shall appear.
As Josh Gerstein observed, in last week’s hearing, in response to a request from Baraka, Espinosa issued a warning about public statements that violate local rules.
COME ON ALINA — In Baraka hearing, magistrate cautioned federal officials about public statements, by POLITICO’s Ry Rivard and Josh Gerstein: Before Newark Mayor Ras Baraka was released from custody on Friday, a federal magistrate quickly determined he was not a flight risk and cautioned federal officials against making out-of-court statements about the mayor, who is also running for New Jersey governor, according to a newly-released transcript of the extraordinary virtual hearing … During the 18-minute videoconference, Baraka’s attorney Raymond Brown asked [U.S. Magistrate André M.] Espinosa to warn Trump administration officials against making derogatory public statements about his client … Earlier in the day, interim U.S. Attorney for New Jersey Alina Habba had posted on social media that Baraka had “willingly chosen to disregard the law” before he was arrested at the immigration detention center he was protesting and seeking to inspect along with three members of New Jersey’s congressional delegation. Espinosa said to the extent anyone had made such comments, he would “caution them to heed carefully to the rules of professional conduct” and “boundaries of propriety for public comment related to an ongoing investigation and/or prosecution.”
So it may turn out that Trump’s Parking Garage Lawyer, who has a history of struggling with basic lawyering tasks, will get directly warned about her violation of due process even before Pam Bondi or Chad Mizelle or Kristi Noem or Kash Patel. Or maybe Habba will have to warn Noem to shut her yap after DHS continued to attack members of Congress for engaging in oversight of a facility they claim still lacks the proper local permits.
In short, basic due process remains a struggle. But there are some reasons to believe that authentic Magna Carta is an auspicious sign.
Donald Trump Has Chosen to Pay Millions to Trash Rule of Law
I have a standing complaint that reporters serially fall into Donald Trump’s trap of reporting on his courtroom tantrums rather than the evidence of his fraud and crime presented therein. But I’m going to do just that, because I believe reporters are misunderstanding the way in which Donald Trump is approaching the second E. Jean Carroll trial and what it bodes for his attack on democracy ahead.
It started with a series of requests to delay the trial so Trump could attend the funeral of Melania’s mother.
The funeral was a ruse: even as he made the requests, Trump continued to obviously and publicly plan campaign events in New Hampshire for the period of potential delay. After initial denials, Alina Habba renewed the request to the famously irascible Judge Lewis Kaplan. That drew a predictable rebuke, in response to which Habba mouthed off to the judge.
Earlier Wednesday, Kaplan told Habba to sit down after she tried yet again to get Kaplan to postpone the trial on Thursday so Trump could attend his mother-in-law’s funeral.
“I will hear no further argument on it. None. Do you understand that word? None. Please sit down,” Kaplan said.
“I don’t like to be spoken to that way,” Habba responded.
Habba had to have know this would go over poorly. She attended Trump’s first rape trial. Plus, even a parking garage lawyer from New Jersey would know of Kaplan’s strict decorum in his court.
Habba invited follow-on rebukes by failing other basic rules of trial decorum.
Over the course of the day, Trump’s attorneys asked Kaplan first to recuse, then for a mistrial, just as they repeatedly did with Judge Arthur Engoron in Trump’s civil fraud trial.
Then Carroll took the stand. Throughout, Trump audibly fumed, leading Carroll’s lawyer to ask Judge Kaplan to quiet him. That led, again predictably, to a clash between him and Kaplan.
“Mr. Trump has the right to be present here. That right can be forfeited, and it can be forfeited if he is disruptive, which is what has been reported to me,” the judge said.
Kaplan then spoke directly to Trump, who was seated at the defense table. “Mr. Trump, I hope I don’t have to consider excluding you from the trial,” he said. “I understand you are probably very eager for me to do that.”
At that point, Trump threw up his hands, saying, “I would love it. I would love it.”
“I know you would. I know you would,” Kaplan replied. “You just can’t control yourself in this circumstance, apparently.”
Trump shot back: “You can’t either.”
Again, all this was predictable. And commentators are probably correct in guessing that they’ll lead the jury to boost the award.
But two things about this reality theater make me convinced it is also entirely planned.
First, something led Joe Tacopina to drop off the team the day before trial. In the past, other lawyers have dropped when they had a conflict with Boris Epshteyn, who continues to run the reality TV show that substitutes for Trump’s legal defenses. And Epshteyn even attempted to speak up, before Judge Kaplan told him, as he has told Habba repeatedly, to take a seat.
The other indication that this has all been carefully scripted are Trump’s posts, rolling out even as he sits in the courtroom without his phone, defaming Carroll again over and over, or bitching about Kaplan. Either Trump drafted those posts in advance, or granted a staffer license to defame and attack on his behalf.
This one attacking Judge Kaplan, for example, suggests that his (male) lawyer asked him not to attend his last rape trial, but now he is attending to witness what Trump falsely claims is bias and unfairness.
Trump is attending this trial, which will almost certainly result in much larger award for Carroll than she would otherwise get, in order to delegitimize it.
And Trump has decided it is worth millions to do that.
Given that he’s a notorious cheapskate who stiffs his lawyers, that ought to give commentators pause. Does he simply plan to not pay, setting up further confrontation and ultimately a contempt fight? What then? A call to violence?
This ploy comes at a key time, too. After the Iowa caucus, with its anemic turnout signaling Trump’s expected victory may shrink the GOP so badly it will lose races up and down the ballot, political journalism instead turned to treating the results themselves as news. WaPo paid almost 20 journalists to write 10 stories the day after the caucus! Political journalists want to pretend everything is normal.
Yet Trump has not been running a campaign. He has been running an effort to consolidate the party to him, increasingly committed to his attack on rule of law.
Within days (hopefully), the DC Circuit will rule that he is not immune (and therefore Joe Biden can’t assassinate him with impunity), which will finally set up a test of SCOTUS’ willingness to rule against him criminally.
His other court filings are similarly descending into louder and louder wails.
At the same time, even before joining Mike Roman’s challenge to Fani Willis in Georgia, he has started working her into court filings in other cases, as in this motion to compel in the Florida case.
A January 12, 2024 congressional inquiry and other sources indicate that such materials exist. See Ex. 63. Specifically, Congress sent a letter to “Attorney Consultant” and “Special Assistant District Attorney” Nathan Wade regarding documents suggesting that Wade helped coordinate with the Biden Administration in 2022. One of Wade’s invoices indicates that he devoted eight hours to a “conf. with White House Counsel” on May 23, 2022. Id. at 2. The meeting occurred within weeks of the New York Times reporting on President Biden’s leaked statement that President Trump “should be prosecuted,” Ex. 62 at 1, and around the same time that Jonathan Su, from the White House Counsel’s Office, was working with NARA to manipulate the PRA in an effort to disclose records to the FBI and the January 6th Committee.
Willis will not formally respond until early February, after responding to Nathan Wade’s divorce, leaving a vacuum where any explanation should be. And while I think this report gets ahead of the verified facts, it’s a good warning of where the challenge to Willis may go. Until that is resolved, Trump will try to taint every single legal case against him with a tie to Willis.
Plus, it’s not just Trump whose legal woes are coming to a head. Peter Navarro is set to be sentenced January 25, and there have been sealed filings in DOJ’s civil suit to recover encrypted comms from him that should have been provided under the President Records Act. Steve Bannon’s New York trial is set for May.
Roger Stone is even back under investigation (even beyond the January 6 investigation) for his reported discussions of assassinating Jerry Nadler or Eric Swalwell.
Trump’s entire fascist cohort would, in a normal world, be facing up to the possibility of consequences for their acts.
But that’s not how this crowd rolls. They would rather bring down rule of law in the US than face consequences themselves. Indeed, it’s such a central part of their plan that Trump’s actually willing to spend money — or invite contempt, followed by whatever incitement with which he responds.
It is a category error to view Trump’s trial tantrums within the rubric of normal legal consequences, even in Kaplan’s entirely predictable courtroom. They are, instead, part of a concerted effort to take down rule of law. For years, Trump has been training his cult to loathe rule of law, and his latest theater is all part of that process.
Even as Trump is ensuring he will be the GOP’s only possibly choice in November, he is also guaranteeing that the entire party will need his attack on rule of law to succeed.
Trump’s fascist mouthpiece, Stephen Miller, has even already started a campaign claiming that Joe Biden is causing the chaos that Trump is about to unleash.
It’s all part of the plan.
Why Reality TV Star Donald Trump Is More Trusted than Most News Outlets
Today, Donald Trump is attending the first day of the fraud trial that he already substantially lost.
Depending on who you believe, he is either attending because he’s using his attendance to delay a deposition in his own lawsuit against Michael Cohen (who will also be a key witness in this fraud trial).
He cited this as his excuse for skipping out on 2 deposition days in his federal case against ex-lawyer Michael Cohen.
If he didn’t show up, he’d be in contempt of court.
Or, he’s using it as a way to affect the outcome — the outcome that was already substantially determined by Judge Engoron’s ruling last week, a ruling addressed in passing, without explaining how he can affect something that has already occurred.
For Mr. Trump, his attendance at trial is far more personal than political, according to a person familiar with his thinking. The former president is enraged by the fraud charges and furious with both the judge and the attorney general. And Mr. Trump, who is a control enthusiast, believes that trials have gone poorly for him when he hasn’t been present, and he hopes to affect the outcome this time, according to the person.
In his courthouse remarks, Mr. Trump lashed out at the judge’s earlier fraud ruling on his property valuations. “I didn’t even put in my best asset, which is the brand,” he said.
I think Trump is attending to spin a judgment that has already been issued as, instead, an outcome he predicted.
Today.
Days after the ruling.
Here’s how it works. On the way into the trial, Reality TV Star Donald Trump made a public statement in which he told his cult followers that the judge that the judge was rogue and the prosecutor was racist. He renewed his claim that Judge Engoron erred by using Palm Beach’s valuation (the one they made in 2011, not in 2021) rather than his boast that Mar-a-Lago is worth a billion dollars.
Few outlets reported that 77-year old Reality TV Star Donald Trump had slurred his words.
No one asked why his spouse hadn’t accompanied him to this trial. (Though this time, one of his co-defendant sons accompanied him to the courthouse.)
Few outlets reported Tish James’ comments about how no one is above the law.
Many outlets were so busy reporting on Reality TV Star Donald Trump’s statements that they didn’t explain that Trump’s Parking Garage Lawyer, Alina Habba, didn’t even try to push for a jury trial, something Judge Engoron confirmed as the trial started.
At least some of the outlets that reported Chris Kise’s arguments about valuation did not explain that those issues were already decided, in a ruling last week.
Most outlets reported that Reality TV Star Donald Trump glared at The Black Woman Prosecutor on his way out for lunch. Some also reported that she laughed that off.
On the way back in the courthouse, Reality TV Star Donald Trump made even more incendiary comments about the judge who already did and will decide his fate. Reality TV Star Donald Trump told his followers that the judge presiding over a trial that might lead him to lose his iconic Trump Tower should be prosecuted and was guilty of election interference.
Many observers clucked that such a stunt would lead the judge — the one who already ruled against Trump — to rule against him.
Trump is going to lose this trial. Know how I know? Judge Engoron already ruled against him!
But most of Trump’s followers don’t know that. Most of Trump’s followers believe that Chris Kise’s comments about valuation were still at issue. Most cult members will see Trump’s comments today — it won’t be hard, because every outlet is carrying them — and remember that before the trial, Trump “predicted” that The Corrupt Judge and The Black Woman Prosecutor would gang up on him.
Reality TV Show Actor Donald Trump used his presence at the trial to create a reality in which he will have correctly predicted a loss that was baked in last week. Because he “predicted” such an outcome, his millions of cult followers will not only treat him as more trustworthy than the journalists playing some role in Trump’s Reality TV Show, cluck-clucking about his attacks on justice without focusing on the fraud and the more fraud and the already adjudged fraud.
Not only will Reality TV Show Actor Donald Trump have “predicted” the outcome, leading his followers to renew their faith in his reliability, but they will implicitly trust his explanation: that he lost the trial not because he is, and has always been, a fraud, but instead because Corrupt Judges and Black Prosecutors continue to gang up on him.
And in the process, Reality TV Show Actor Donald Trump will have continued the big con, the very same fraud of which he has already been adjuged. He will have once again distracted from his own fantasy self-worth and instead led people to report on his golden brand.
When you let Reality TV Show Actor Donald Trump to set the stage, as journalists, you are yet more actors in his Reality TV creation.
It’s not that journalists are bad or biased or corrupt (though some of their editors are). It’s just that Trump already cast them in a role and they’re playing it to a T.
Remember: DOJ May Still Suspect Trump Is Hoarding Classified Documents
When I wrote up initial reports of Christina Bobb’s first interview with investigators in the stolen documents case, I noted,
Bobb’s testimony will clarify for DOJ, I guess, about how broadly they need to get Beryl Howell to scope the crime-fraud exception.
Here we are five months later, and Beryl Howell has indeed, very predictably, scoped out the crime-fraud exception for Evan Corcoran’s testimony and the DC Circuit has refused Trump’s request of a stay to fight that ruling.
In fact, ABC reported a list of the things that Judge Howell ruled Evan Corcoran must share with Jack Smith’s prosecutors, the scope I predicted she’d draw up five months ago.
As you read it, keep in mind that DOJ likely suspects that Trump still is hoarding classified documents. I say keep that in mind, because these questions will help to pinpoint the extent to which Trump or Boris Epshteyn masterminded efforts last June to hide classified documents, which may help DOJ to understand whether someone has masterminded efforts to hide remaining classified documents since.
The six things Corcoran has been ordered to testify about, per ABC, are:
- “[T]he steps [Corcoran] took to determine where documents responsive to DOJ’s May subpoena may have been located”
- Why Corcoran “believed all documents with classification markings were held in Mar-a-Lago’s storage room”
- “[T]he people involved in choosing Bobb as the designated custodian of records for documents that Trump took with him after leaving the White House, and any communications he exchanged with Bobb in connection with her selection”
- “[W]hether Trump or anyone else in his employ was aware of the signed certification that was drafted by Corcoran and signed by Trump attorney Christina Bobb then submitted in response to the May 11 subpoena from the DOJ seeking all remaining documents with classified markings in Trump’s possession”
- “[W]hether Trump was aware of the statements in the certification, which claimed a “diligent search” of Mar-a-Lago had been conducted, and if Trump approved of it being provided to the government”
- What Corcoran “discussed with Trump in a June 24 phone call on the same day that the Trump Organization received a second grand jury subpoena demanding surveillance footage from Mar-a-Lago that would show whether anyone moved boxes in and out of the storage room
Questions 1 and 2 are a test of whether Corcoran wrote the declaration that Christina Bobb signed on June 3 in good faith. Given the fact that boxes were moved out of the storage room, it’s quite plausible that Corcoran did do a good faith search of the remaining boxes. So the answer to question 2 — why did he think all the classified documents were in that room? — will help pinpoint who has criminal liability for that obstructive act. Someone told him only to search the storage room and he took Jay Bratt to that storage room on June 3 and falsely (but likely unwittingly) told them that’s where all the classified documents would have been stored. Who told him that was true?
Questions 4 and 5 go to Trump’s awareness of the attempt to mislead DOJ on June 3. Did he know about the signed certification, and if so was Trump aware that Corcoran and Bobb had, between them, claimed the search of a storage room out of which boxes had been moved amounted to a diligent search? Since he reportedly ordered Walt Nauta to move boxes out of there, does that mean he knew the declaration was false?
Question 3 is more interesting though: The fact that Corcoran wouldn’t sign the certification himself is testament that he had doubts about the search he did himself or, at least, that someone knew enough to protect him. Per reporting from after she spoke to investigators the first time (see this post), Boris Epshteyn contacted Bobb the night before the search to serve the role she played.
She told them that another Trump lawyer, Boris Epshteyn, contacted her the night before she signed the attestation and connected her with Mr. Corcoran. Ms. Bobb, who was living in Florida, was told that she needed to go to Mar-a-Lago the next day to deal with an unspecified legal matter for Mr. Trump.
When she showed up the next day, Bobb complained that she didn’t know Corcoran, which is one of the reasons she wisely caveated the document before signing it.
“Wait a minute — I don’t know you,” Ms. Bobb replied to Mr. Corcoran’s request, according to a person to whom she later recounted the episode. She later complained that she did not have a full grasp of what was going on around her when she signed the document, according to two people who have heard her account.
And Bobb wasn’t the custodian of records. Someone decided to have someone unaffiliated with the Office of the Former President sign as custodian of records, thereby protecting Trump’s legal entity — the one served with the subpoena — from liability for the inadequate response.
She was, however, someone who — like Boris Epshteyn — likely has significant exposure for January 6, and even (per her testimony to January 6 Committee) witnessed Trump’s call to Brad Raffensperger.
But either Corcoran knew or suspected his own search was inadequate, or someone built in plausible deniability for him. DOJ may find out which it was on Friday.
As noted, this may help DOJ understand what has happened since Bobb’s initial testimony. Reports of her testimony came in the same days as initial reports that DOJ had told Trump they believed he still had classified records. Both Bloomberg and NYT described the tensions that arose among Trump’s lawyers as a result, with some objecting to any further certification.
Christopher M. Kise, who suggested hiring a forensic firm to search for additional documents, according to the people briefed on the matter.
But other lawyers in Mr. Trump’s circle — who have argued for taking a more adversarial posture in dealing with the Justice Department — disagreed with Mr. Kise’s approach. They talked Mr. Trump out of the idea and have encouraged him to maintain an aggressive stance toward the authorities, according to a person familiar with the matter.
That was in October. In November, Merrick Garland appointed Jack Smith. In late November, Trump hired Tim Parlatore to do the search Kise had recommended over a month earlier. The search found, and returned to DOJ, two documents with classification markings found in a separate storage facility.
But even as Trump lawyers were dribbling out details of the result of that search, they were hiding at least two more details: that a Trump aide had been carting around — and had uploaded via the cloud — White House schedules that included once-classified information. And, Parlatore’s searchers had discovered, there was another empty classified folder on Trump’s bedside table that hadn’t been discovered in the August search. Whether willful or not, both likely show that additional documents with classification markers were brought back to Mar-a-Lago after the August search.
Since the time in December DOJ tried to hold Trump in contempt for refusing to comply with the May subpoena, they have chased down the box of schedules and the computer to which they were uploaded and subpoenaed the extra empty classified folder. They have interviewed the people who did the search, as well as the lawyers that Boris Epshteyn was giving orders. Significantly, they also interviewed Alina Habba, whose own search of Mar-a-Lago for documents responsive to Tish James’ subpoena had obvious gaps, most notably the storage closet full of documents where a bunch of classified documents were being stored. And finally, after five months, they will answer the questions first made obvious after Bobb’s initial interview in October: what Trump told Corcoran to get him to do an inadequate search.
Which brings me to Question 6: What Trump said to Corcoran after he received a subpoena for security footage that Trump knew — but Corcoran may not have known — showed Walt Nauta moving boxes that would thereby be excluded from the search Corcoran had done in May and June. Since this was a call, it may well be one of the things about which Corcoran took notes or even a recording that he later transcribed. Also recall that there was a discrepancy as to the date of the subpoena (as well as whether Trump greeted Jay Bratt and others when they were at MAL) when the search was originally revealed last year, a discrepancy that led me to suspect DOJ first served a subpoena on Trump’s office and only then served a subpoena on Trump Organization. June 24 may have been the first date that Corcoran became aware that his representations about the search for documents was incomplete.
Here’s the point, though. Trump played a shell game in advance of the search that Corcoran did last summer. Alina Habba’s declaration, on its face, reflects a shell game. There’s reason to believe — given the box containing additional documents marked classified and the empty classified folder — that Trump played another shell game when Parlatore’s investigators searched in November and December. And Howell reportedly also approved a crime-fraud waiver for Jennifer Little, a lawyer representing Trump in conjunction with the Georgia investigation.
If Corcoran does testify tomorrow, it may crystalize DOJ’s understanding of that shell game, at least. Not only will that help DOJ understand if another shell game, one involving Parlatore, managed to hide still more documents in November and December. But it may help to understand any other shell games Trump engaged in in NY and GA.
It may also finally provide the basis to hold Trump in contempt for withholding further documents.
Where Alina Habba Didn’t Personally Search
Given the news that Alina Habba appeared before the grand jury investigating Trump’s stolen documents, I wanted to go back to the declaration she submitted in the NY State investigation pertaining to diligent searches for documents in that investigation back in May 2022.
Politico reported on it before the public release about details of the stolen classified documents, and as such was taken as a claim that Habba conducted a search of the locations where documents were known to have been stored.
But it wasn’t.
Obviously, that’s true because (as Habba made a big deal of pointing out just after the original Politico report) the May 2022 searches were just for documents responsive to Tish James’ subpoena focused on the valuation of various properties, not for classified records.
But that’s also true because Habba did not search all the locations known to have stored Trump’s stolen documents.
The certifications involved include a nested certification, on Trump’s behalf, to the diligence of the search. Trump personally signed an affidavit, but he relied on the diligence of searches done by others, including the physical searches of three properties by lawyers.
5. Nevertheless, in an abundance of caution and in accordance with the Order, I authorized the additional, follow-up searches to be performed on my private residences:
a. On May 4, 2022, I authorized my attorney, Alina Habba, to search my private residence and personal office located at Trump National Golf Club in Bedminster, New Jersey for any and all documents responsive to the Subpoena.
b. On May 5, 2022, I authorized Alina Habba to search my private residence and personal office located at The Mar-a-Lago Club in Palm Beach, Florida for any and all documents responsive to the Subpoena.
c. On May 5, 2022, I authorized Alan Garten, General Counsel for the Trump Organization, to search my private apartment located in Trump Tower in New York, New York for any and all documents responsive to the Subpoena
[snip]
It is my understanding that searches of the above-listed locations have been performed by my attorneys, the Trump Organization Legal Department, the Trump Organization IT Department, and others.
Habba was not involved in the searches of business locations in Trump Tower or Trump’s residence there. Alan Garten was.
Garten was similarly responsible for compliance with subpoenas in conjunction with the various Russian investigations, and there are what SSCI called, “known deficiencies in the Trump Organization’s document responses,” including the email between Michael Cohen and Dmitri Peskov’s assistant, among others.
Garten did not submit a declaration in this package. Instead, Habba vouched for the diligence of Garten’s search.
f. On May 5, 2022, I coordinated and communicated with Alan Garten via telephone with regard to his search of Respondent’s private residence in Trump Tower including all desks, drawers, file cabinets, and similar locations likely to house files or documents. The search did not identify any documents responsive to the Subpoena.
So in this filing, Trump relied on the searches done by Habba and Garten, but Garten relied on Habba to attest to the diligence of the search.
And no one searched the storage facility in Florida at which some of Trump’s White House papers were stored, where two classified documents were discovered in follow-up searches by Trump’s lawyers in November.
But even the two properties Habba did search include gaps.
b. On May 4, 2022, I diligently searched each and every room of Respondent’s private residence located at Trump National Golf Club Bedminster, including all desks, drawers, nightstands, dressers, closets, etc. I was unable to locate any documents responsive to the Subpoena that have not already been produced to the OAG by the Trump Organization.
c. On May 4, 2022, I diligently searched Respondent’s personal office located at Trump National Golf Club Bedminster, including all desks, drawers, file cabinets, etc. I was unable to locate any documents responsive to the Subpoena that have not already been produced to the OAG by the Trump Organization.
d. On May 5, 2022, I diligently searched each and every room of Respondent’s private residence located at Mar-a-Lago, including all desks, drawers, nightstands, dressers, closets, etc. I was unable to locate any documents responsive to the Subpoena that have not already been produced to the OAG by the Trump Organization.
e. On May 5, 2022, I diligently searched Respondent’s personal office located at Mara-Lago, including all desks, drawers, file cabinets, etc. I was unable to locate any documents responsive to the Subpoena that have not already been produced to the OAG by the Trump Organization.
It’s hard to see how a one day search of these facilities, May 4 at Bedminster and then May 5 at Mar-a-Lago, could be that thorough, in any case.
But on May 5, when Habba was searching MAL, the bulk of the documents that were later seized were probably still in the storage closet from which they were moved in advance of Evan Corcoran’s search leading up to June 3. That’s neither the residence nor Trump’s office.
While there were likely classified documents in the drawers she searched at the time she searched them — a Secret document attached to Roger Stone clemency paperwork, and a Secret and a Confidential document attached to post-Administration messages from others — it’s not clear where the leatherbound box that held the most sensitive documents would have been stored in May 2022 (which was ultimately found in the office). And it’s still not clear where the classified documents in a box with Trump’s White House schedules was when the FBI conducted its search in August.
But there’s no way Habba would have found most documents, because most documents were still in that storage room.
They are understood to have been moved out of the storage room into the residence after the May 11 subpoena, days after Habba’s search.
Habba’s testimony would have been useful for showing that when asked to do a diligent search, Trump specifically hid from her one of the locations where he stored documents. She also would have added testimony about the absence of boxes in the residence when she searched it.
“Classified Evening Briefing:” Mishandled and Stolen Documents Update
There has been a bunch of news in the various investigations into various constitutional officers who took documents home. Here’s my updated handy table.
Biden
On February 1, the FBI did a consensual search of President Biden’s Rehoboth home. No additional documents with classified marks were found, though the FBI did take some notes from Biden’s time as Vice President. Those kinds of notes are what I include among potential “trophy” documents, because they may reflect mementos.
NARA released information relating to Biden’s initial turnover of documents under FOIA. I assume they would have had to get DOJ’s permission to do so.
Pence
Mike Pence’s team announced that, after a consensual search of his Carmel, IN home, the FBI found one additional document with classification markings and six additional pages.
The FBI discovered an additional classified document at former Vice President Mike Pence’s Indiana home Friday during a voluntary five-hour search of the house, a Pence adviser said in a statement.
The adviser, Devin O’Malley, said “the Department of Justice completed a thorough and unrestricted search of five hours and removed one document with classified markings and six additional pages without such markings that were not discovered in the initial review by the vice president’s counsel.”
“The vice president has directed his legal team to continue its cooperation with appropriate authorities and to be fully transparent through the conclusion of this matter,” O’Malley said. He also noted that Pence and his legal team had “agreed to a consensual search of his residence that took place today.”
A source familiar with the search said DOJ was given unrestricted access to Pence’s home, and a member of his legal team was present through its duration.
The scope of the search included looking for documents that DOJ believed might be considered original documents that should have been sent to the National Archives, the source said, which could explain the six pages of additional material that were taken.
Given those six pages, I’ve changed the table to reflect possible “trophy” documents, things taken as keepsakes.
Pence has another weekend home in IN that has not been searched.
Trump
Trump may have used the news of Pence’s classified document as an opportunity to dump more news of his own. Multiple outlets reported that he had turned over:
- An empty folder marked “Classified Evening Briefing”
- Some additional classified files
- The laptop and thumb drive onto which digital versions of those files were copied
Here’s how ABC described the new materials:
The folder with classification markings was discovered in a box with additional papers, the sources said. A copy of the box’s contents was made electronically, raising the question about the existence of any additional electronic records that may be relevant to the special counsel’s investigation.
ABC News has also learned that after the information was recovered, federal agents retrieved the laptop from the aide. The laptop was not retrieved on the Mar-a-Lago grounds, the sources said.
Given the position of the person reportedly involved — who works for Trump’s PAC — it is possible that this person is the one who did a “compilation” of messages from a pollster, a faith leader, a book author, with two classified documents, one Secret and one Confidential.
Separately, there have been reports of at least three witnesses who have testified in the stolen document case:
- In the second week of January, Evan Corcoran appeared before the grand jury. He’s the one who did the search that happened not to find the 100 documents Trump had hidden.
- Late last year DOJ reached out to Alina Habba (she is represented by the same lawyer who had represented Christina Bobb). Habba filed a declaration in a NYS case claiming to have done a diligent search of Trump’s property for subpoenaed documents.
- On February 2, Tom Fitton appeared before the grand jury. Fitton, who is not a lawyer, gave Trump catastrophically stupid advice saying that a suit he filed against Bill Clinton that was unrelated meant Trump could just determine what documents he could keep.
- Robert O’Brien was subpoenaed in both the stolen documents and the attempted stolen election case and is asserting Executive Privilege over some matters. O’Brien would know the circumstances by which Trump was briefed, so this could be a follow-up to items more recently turned over to DOJ.
Judge Sanctions Alina Habba for Misrepresenting Igor Danchenko Indictment
There are a number of reasons why Judge Donald Middlebrook sanctioned Alina Habba and Peter Ticktin for the frivolous claims they made against Chuck Dolan in the omnibus lawsuit against Hillary Clinton and a bunch of other people.
In reverse order, Middlebrook found that the lawsuit was filed for improper purpose: to advance a political grievance.
Every claim was frivolous, most barred by settled, well-established existing law. These were political grievances masquerading as legal claims. This cannot be attributed to incompetent lawyering. It was a deliberate use of the judicial system to pursue a political agenda.
[snip]
The rule of law is undermined by the toxic combination of political fundraising with legal fees paid by political action committees, reckless and factually untrue statements by lawyers at rallies and in the media, and efforts to advance a political narrative through lawsuits without factual basis or any cognizable legal theory.
He ruled that it’s not RICO, it’s never RICO (or any of the other conspiracies Habba alleged, either).
In the RICO count of the Amended Complaint, Plaintiff realleged the previous 619 paragraphs, and it was a mystery who he intended to sue. In the caption to Count II, he named 22 defendants but in the prayer for relief for that count 28 were named. Added were HF ACC, Inc., the DNC Services Corporations, James Comey, Peter Strzok, Lisa Page, and Andrew McCabe. (Am. Compl. ¶ 633). Whoever he intended to sue, Plaintiff alleged that each of them “knew about and agreed to facilitate the Enterprise’s scheme to harm the Plaintiff’s political career, tarnish his electability, and undermine his ability to effectively govern as the President of the United States . . . . ” (Am. Compl. ¶ 627).
The RICO conspiracy claims were entirely conclusory. Moreover, there is no standing to bring a RICO conspiracy claim unless injury resulted from violation of a substantive provision of RICO.
Of greatest interest to me, however, to substantiate a finding that the lawsuit’s allegations against Chuck Dolan lacked any reasonable factual basis, Judge Middlebrook laid out how Habba misrepresented the Igor Danchenko indictment to include Dolan in her conspiracy theories. Middlebrook focused closely on Habba’s claims that the pee tape allegation in the Steele dossier “was derived from Dolan.” He rejected Habba’s defense of the allegations against Dolan by pointing to stuff she left out.
Mr. Trump’s lawyers claim “nearly all” of the allegations against Mr. Dolan were sourced directly from the Indictment brought against Igor Danchenko by special counsel John Durham. (DE 270-2 at 6). But this is simply not so. As was the practice throughout the Amended Complaint, Plaintiff cherry-picked portions which supported his narrative while ignoring those that undermined or contradicted it.1 Mr. Trump’s lawyers persisted in this misrepresentation after being warned by the sanctions motion, and they doubled down on this falsehood in their response to the motion.
[snip]
Even more telling are the portions of the Indictment ignored by Plaintiff. The Indictment alleges that Mr. Dolan and others were planning a business conference to be held in Moscow on behalf of businessmen seeking to explore investments in Russia. (DE 270-2 ¶ 21). Mr. Danchenko was introduced to Mr. Dolan in connection with business activities. (Id. ¶ 18).
Significantly the Indictment alleges two other facts relevant to and, if true, fatal to Plaintiff’s claim of conspiracy.
According to [Mr. Dolan], individuals affiliated with the Clinton Campaign did not direct, and were not aware of, the aforementioned meetings and activities with Danchenko and other Russian nationals.
***
According to [Mr. Dolan], he [Mr. Dolan] was not aware at the time of the specifics of Danchenko’s ‘project against Trump,’ or that Danchenko’s reporting would be provided to the FBI.
And with regard to the allegation about sexual activity, the Indictment alleges that Mr. Dolan and another individual were given a tour of a Moscow hotel in June 2016, told that Mr. Trump had previously stayed in the Presidential suite, and according to both Mr. Dolan and the other individual, the staff member who gave the tour did not mention any sexual or salacious activity. (Id. ¶¶ 60-61). The Indictment does not allege that the information concerning sexual activity was provided by Mr. Dolan.
The May 31, 2022 warning letter told the Trump lawyers that Mr. Dolan had been questioned by the FBI on multiple occasions, that the Danchenko Indictment detailed his contacts with Mr. Danchenko but did not indicate he “discussed any sexual rumors with Mr. Danchenko — because he did not.” (DE 268-1 at 2). The Indictment confirms that Mr. Dolan spoke to the FBI, and not only was he not charged with any falsehood, but his statements are included within the Indictment. The Indictment contradicts rather than supports Plaintiff’s allegations against Mr. Dolan. Far from being “sourced directly” and cited “word-for-word,” (DE 270 at 5), Plaintiff’s use of the Indictment is nothing short of a deliberate disregard of the truth or falsity of their claims. This is a textbook example of sanctionable conduct under Rule 11.
Rather than express any regret, Plaintiff doubled down on his claims: “Plaintiff’s allegation that Defendant was the source of the salacious sexual activity rumor has a legitimate factual basis and is based upon a well-reasoned theory that may well be proven correct during the [Office of Special Counsel’s] upcoming trial of Danchenko.” (DE 270 at 10).
It was never to be. In the Danchenko trial, Mr. Dolan was called as a witness by the government about matters unrelated to the Ritz Carlton rumors. The government never alleged that Mr. Dolan was a source for the Ritz Carlton story. See Order, United States v. Igor Y. Danchenko, Case No. 21-cr-00245-AJT at 5 (Oct. 4, 2022). And Mr. Danchenko was ultimately acquitted by the jury.
1 The “sourced directly” claim is untrue. For example, the Indictment says: “In or about April 2016, Danchenko and [Mr. Dolan] engaged in discussions regarding potential business collaboration between PR Firm-1 and UK Investigative Firm-1 on issues related to Russia.” (DE 270-2 ¶ 23). The Amended Complaint, however, states: “In late April 2016 Danchenko began having discussions with Dolan about a potential business collaboration between Orbis Ltd. and Kglobal to create a ‘dossier’ to smear Donald J. Trump and to disseminate the false accusations to the media.” (Am. Compl. ¶ 96(c)).
The order as a whole generated a lot of attention on the failed birdsite. But there was no self-awareness that the exercise that Habba engaged in with respect to Dolan and the Danchenko prosecution was similar to what a number of journalists (and a great number of right wingers and other frothers) themselves did, when the Danchenko indictment was rolled out last year.
For example, here’s what the WaPo claimed in a still-uncorrected report last year:
Durham says Danchenko [1] made up a conversation [2] he claimed was the source of one of the dossier’s most salacious claims, that Trump paid prostitutes at a Moscow hotel room to urinate on a bed in which President Barack Obama had once slept. The dossier also suggested Russian intelligence agencies had secretly recorded that event as potential blackmail material. Trump has denied any such encounter.
The indictment [3] suggests that story came from Dolan, who in June 2016 toured a suite at a hotel in Moscow that was once occupied by Trump. According to the indictment, Danchenko [4] falsely told Steele and the FBI that the information came from the president of the U.S. Russian-American Chamber of Commerce at the time.
All four of the above claims are not supported by the indictment, much less Danchenko’s published interviews with the FBI, which attributed the pee tape claim to someone else — though it is definitely the case that Durham encouraged such unsupported inferences.
Jonathan Swan condensed the same kinds of claims that Habba just got sanctioned for in one tweet.
Just one “rumor” was attributed to Dolan in the Danchenko indictment, the most provably true one (because it came from media coverage), and one about which — as the trial established — the FBI never once asked Danchenko, in significant part because it had nothing to do with Russia.
And while Middlebrook notes that Danchenko was acquitted, he doesn’t note that Judge Anthony Trenga dismissed the single Dolan count because the allegedly false statement Danchenko made about Dolan was “literally true.” That should not have been a surprising judgment. I noted problems with that charge exactly a year ago, when I catalogued all the sloppy reporting on the Danchenko indictment.
Middlebrook’s order makes for great reading. It’s fun to laugh at Habba getting called out.
But it should bring some reflection from the journalists who made the same kind of logical jumps that Habba did, but who cannot be sanctioned for professional failures.
Middlebrook may not be done. The other defendants have asked for sanctions, as well (though without doing the same preparation in advance to ask for Rule 11 sanctions). So Donald Trump’s lawyers may yet have the privilege of paying Peter Strzok and Hillary Clinton for the privilege of having sued them.
Update: Corrected Middlebrook’s name.