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How SDNY Came to Treat James O’Keefe Better than Former SDNY US Attorney Rudy Giuliani

It has been a week since Judge Analisa Torres appointed Barbara Jones as Special Master to review materials seized from James O’Keefe and two other Project Veritas figures, and prosecutors from the Southern District of New York have not made any public complaint to the terms of her order. So I’d like to emphasize what SDNY found tolerable in the Project Veritas matter as compared to the search of Rudy Giuliani’s phone.

These are the instructions Judge Torres issued for the Special Master review of Project Veritas’ devices.

  1. The Government shall complete extraction of the materials from Petitioners’ devices. The Government shall provide the extracted materials to the Special Master.
  2. The Special Master shall expeditiously conduct an initial review of the extracted materials to determine what materials are responsive to the search warrants. To assist with the Special Master’s review, the Government shall provide the Special Master, on an ex parte basis, with a copy of the search warrants executed on Petitioners, the underlying application materials for those search warrants, and any other information that will assist the Special Master in conducting her review. If the Special Master determines that the efficient administration of her duties requires the assistance of additional professionals, support staff, or expert consultants, she may submit a work proposal to the parties, who will have five business days to submit comments, after which time the Special Master may then submit the proposal to the Court for consideration.
  3. Materials deemed to be responsive to the search warrants shall be provided by the Special Master to the filter team, which shall be walled off from the investigative team working on matters related to the investigation that is the subject of the search warrants or any investigation related to Petitioners.
  4. The filter team shall conduct a review of the responsive materials to determine if any should be withheld from the investigative team on any grounds—including grounds related to any First Amendment concerns, journalistic privileges, and attorney-client privileges.
  5. After the filter team conducts its review, Petitioners shall review the materials slated to be released to the investigative team and raise any objections. The Special Master shall rule on any objections and provide the proper materials to the investigative team. [my emphasis]

Effectively, SDNY will provide Jones all the contents of O’Keefe’s phones. She will then do a responsiveness review to identify the material responsive to the warrants targeting O’Keefe. That material will then go to an FBI filter team, which will review it for privilege. After that, PV will get to review the materials to raise objections (with no limit on the objections identified, though presumably these would be based on privilege). Jones will then rule on those objections and provide whatever she deems appropriate to the investigators.

That approach offers PV far more protection than the President’s former lawyer Rudy Giuliani is getting. In the Special Master review of materials seized from the former SDNY US Attorney, Judge Paul Oetken ordered Jones to conduct an initial privilege review.

The Special Master shall render decisions regarding privilege issues relating to the materials seized in the execution of certain search warrants dated April 21, 2021, and April 28, 2021, and executed on April 28, 2021 (the “Seized Materials”). The specific duties of the Special Master are as follows and shall include all powers necessary to carry out these duties:

a. Conducting an initial privilege review of the Seized Materials and adjudicating privilege disputes between the parties;

The parties then had a debate about the sheer scope of the seized materials. As part of that, SDNY agreed to limit the temporal range of Jones’ review to documents that date between January 1, 2018 and the date of execution in April 2021. But SDNY argued that there’s no basis for a Special Master to conduct a responsiveness review.

The Letters conflate the scope of the Special Master’s review for privileged material with the scope of the Government’s eventual review for material responsive to the Warrants. The Letters present extensive argument concerning only the latter, yet seek relief concerning the former. That is, the Letters contend that the Government’s search for responsive materials must conform to certain limits, then leap from that conclusion to request limits on the Special Master’s initial screening for privileged items. (See Giuliani Let. 4-24 (arguing Government can review only materials dated August 1, 2018 to December 31, 2019); id. at 1, 25 (requesting order that Special Master review only materials from the same period)). The Letters thus ask the Special Master to conduct a responsiveness review: To identify and withhold from Government investigators documents that are in no way privileged, based on a determination that they fall outside the scope of the Warrants. Neither the Warrants, nor this Court’s order appointing the Special Master, contemplate that an arm of the Court, rather than Government investigators, would conduct such a review. (See, e.g., Dkt. 25 (order appointing Special Master)). The Letters’ attempt to limit the materials to which investigators will have access thus appears to be an attempt to relitigate Giuliani’s and Toensing’s meritless efforts to limit the search contemplated by the Warrants ex ante, which this Court already rejected. (See Dkt. 20 at 3-6 (Court rejecting motions for pre-charge (indeed, pre-search) suppression and return of property)). [my emphasis]

Ultimately, Judge Oetken agreed with SDNY, ruling — in an order that preceded Torres’ and therefore which SDNY could have pointed to as a precedent — that there is no legal authority mandating a Special Master review for responsiveness, rather than privilege.

Second, the warrants themselves do not contemplate that an arm of the Court, rather than Government investigators, would conduct a review of the warrant materials for responsiveness, nor is the Court aware of any legal authority mandating such review. To be sure, as the Government acknowledges, the warrants must be executed according to their terms. But the fact that the Court has appointed a Special Master for privilege review in this circumstance does not dictate that such review be expanded to review for responsiveness.

As Jones has made clear in one of her few public reports in the Rudy review thus far, for the files from this time period over which Rudy (or Victoria Toensing or Dmitry Firtash) don’t claim privilege, they’ll all go to the FBI.

These seven devices contain 2,226 items in total dated on or after January 1, 2018. Mr. Giuliani designated 3 items as privileged, and I am reserving decision on those 3 items. The remaining 2,223 items have been released to the Government.

From there, FBI (with no filter team) will do a responsiveness review for the Ukrainian foreign influence peddling investigation and for any other warrants DOJ has happened to obtain targeting Rudy’s phones.

A recent Oetken order makes clear that, eight months after the seizure of these files, we’ll soon see some privilege battles take place in semi-public form, with description of the content of the materials sealed, but not the basis for privilege claims. At this point in the Michael Cohen fight, Trump chose not to fight privilege claims on some crime-fraud excepted communications, most notably pertaining to his hush payments.

The effect of these two reviews will be dramatically different. In PV’s case, only those materials pertinent to the alleged theft of Ashley Biden’s diary will ever become available to the FBI, and even after the FBI filter team does a privilege review, PV will have an opportunity to argue for withholding that material from DOJ. While this process might result in slightly more materials being shared with investigators than might have happened in response to a subpoena (and would have had the effect of limiting any data destruction), it gives PV something close to an opportunity to suppress evidence pre-charge. The review will also ensure that DOJ does not obtain evidence that might otherwise implicate PV, such as the way it permits “donors” to influence the timing of particular “reporting” campaigns.

Whereas, as I’ve laid out before, DOJ will have the ability to obtain materials from Rudy responsive to the Lev Parnas-associated investigation, as well as anything that might be responsive to warrants investigating other crimes, including (but not limited to) his role in Trump’s obstruction of the Mueller investigation and his role in Trump’s attempted coup.

It’s not like SDNY — nicknamed “Sovereign District” for their aggressiveness — to cede a legal point without a fight. But here, having just prevailed on the principle that there’s no legal basis for a Special Master to conduct a responsiveness review, they let a decision stand ordering a Special Master to conduct a responsiveness review, and only after that, to review FBI’s own privilege determinations.

The two different approaches may reflect not so much legal principle, but the relative goals of the prosecutorial teams and/or DOJ’s priorities. PV got its surrogates in Congress — and even tried to solicit Democratic support — for its claims that its extortion-like behavior is a journalistic function. Effectively, accepting a Special Master responsiveness review resets this matter close to where it would have been if PV was genuinely accommodating the subpoena in good faith (as it wasn’t, before the seizure). It also may be the case, however, that SDNY has reason to know what they’re looking for are Signal or Telegram texts involving O’Keefe personally, with the expectation that they’ll get other responsive documents via the subpoena.

That SDNY was so willing to accept the PV result, though, highlights how aggressively they fought to defeat any responsiveness review with Rudy. Their argument against a Special Master review for responsiveness, with a subject whose files are among the most sensitive imaginable, is precisely what makes those materials available for other possible investigations. That was a fight that SDNY — and Merrick Garland’s DOJ — was willing to make, and a fight they won.

Somehow and for some reason, the President’s former lawyer is being treated less favorably by his former office than your garden variety rat-fucker. The reasons why that might be bear some consideration.

Citing “Considerable Detail” in Affidavits, Judge Denies Bid to Unseal Project Veritas Warrants

Magistrate judge Sarah Cave just denied a bid by the Reporter’s Committee for the Freedom of the Press to unseal the warrant affidavits targeting James O’Keefe and other Project Veritas personnel.While she rejected the government’s claim there was an exemption for warrant applications in ongoing criminal investigations, she found that a balancing test supported the government’s bid to keep the affidavits secret.

Of particular note, Cave conducted an in camera review of the affidavit and determined that there was so much information about individuals who, “voluntarily or involuntarily,” had provided information for the investigation, releasing the affidavits would thwart cooperation in the investigation.

Third, the Court has reviewed the Materials in camera and observes that they contain considerable detail about individuals who may have already provided information to the Government—voluntarily or involuntarily—such that unsealing of the Materials “could subject [them] to witness tampering, harassment, or retaliation.” In re Sealed Search Warrants Issued June 4 & 5, 2008, 2008 WL 5667021 at *4; see Amodeo II, 71 F.3d at 1050 (noting that if the confidentiality of cooperating witnesses “cannot be assured, cooperation will not be forthcoming”); Smith 985 F. Supp. 2d at 531–32 (noting that disclosure of search warrant materials would undermine ongoing investigation by, inter alia “officially confirm[ing] who some of the cooperating witnesses in these investigations are,” which “could lead to efforts by [the targets of the investigation] to frustrate the ongoing investigations”). Release of the information in the Materials “is likely to cause persons in [this] or future cases to resist involvement where cooperation is desirable,” and thereby undermine law enforcement interests. Amodeo II, 71 F.3d at 1050.

Cave describes that “the Materials include references to a number of individuals employed by or associated with Project Veritas. Their conduct in relation to the alleged criminal activity is described in considerable detail, although not all of that conduct may be criminal.”

Cave also determined that, because of the amount of detail the government obtained  there was no way to redact the names in the affidavit to make it available that way.

Finally, the Court has carefully examined the Materials to determine whether redactions would be sufficient to protect the countervailing interests that outweigh the presumption of public access, and concludes that “no portion of those documents may be unsealed without compromising the interest in the integrity and security of the [I]nvestigation” and the privacy interests of third parties. In re Sealed Search Warrants Issued June 4 & 5, 2008, 2008 WL 5667021, at *5. As noted above, the Materials contain not only the legal theories of the Investigation, but also details about the information the Government has obtained and from which sources. The nature and extent of any possible redactions to omit this information would “render[] unintelligible” the contents of the Materials, and could be “more likely to mislead than to inform the public” in the way that RCFP predicts. Amodeo II, 71 F.3d at 1052. Accordingly, the Court concludes that unsealing the Materials, “even in redacted form, cannot be accomplished at this stage without serious risk to the [I]nvestigation,” and they must therefore remain sealed at this time. In re Sealed Search Warrant Issued June 4 & 5, 2008, 2008 WL 5667021, at *5

We’ll have to wait to see what the government’s case is or was against Project Veritas.

But it sounds like there’s a good deal behind these warrants.

Parallel Tracks: Project Veritas Served on Their Subpoena Stance

There’s a temporal problem in Project Veritas’ initial motion to appoint a Special Master to sort through materials seized from James O’Keefe in a search on November 6.

In one place, it described that, “At 6:00 AM on Saturday, November 6, 2021, the Federal Bureau of Investigation (“FBI”) executed a search warrant at Mr. O’Keefe’s home.” In another, it described that, “On November 5, 2021, at approximately 6:00 AM, the FBI executed search warrants at the homes of two former Project Veritas journalists, seizing their cell phones and other electronic devices.” But the very next paragraph describes that the O’Keefe search happened two days after the initial search: “Approximately two days later, the FBI executed a search warrant at the home of James O’Keefe.” Then, the letter describes that, “on November 4, 2021 – two days before its search of Mr. O’Keefe’s home — the undersigned had accepted service of a grand jury subpoena directed to Project Veritas.” Shortly thereafter, the letter says the earlier search happened on November 4, not November 5. “On November 4, 2021, at about the same time that FBI agents finished searching the home of a former Project Veritas journalist.”

Even while incorrectly stating that the initial search happened on November 5, the filing (and a subsequent one) don’t describe precisely when NYT’s Mike Schmidt twice reached out for comment about the searches, a key part of their obviously false narrative that Schmidt had to have gotten tipped off by the FBI.

The searches happened on November 4 and 6, at 6AM. I asked Mike Schmidt when he reached out but he didn’t respond, though Eric Cochran’s motion to appoint a Special Master says Schmidt reached out approximately an hour after the 3-hour search happened, so around 10AM.

The incorrect claim in that initial filing that the first searches occurred on November 5 may be nothing more than a typo, but sorting through the timeline alerted me to a chronological detail of some import that PV may want to obscure. PV got word themselves of the investigation, and reached out to one of the prosecutors involved, Mitzi Steiner, to find out more about the investigation on October 26. After Steiner refused to reveal anything about the investigation, lawyers for PV offered to accept a subpoena the next day, promising they had “material and helpful information” to the investigation. But after DOJ sent a subpoena on November 4 — almost certainly after the first searches, which targeted former PV staffers — PV persistently refused to say whether it would comply with the subpoena.

[T]he Government has repeatedly offered to be flexible about the Subpoena’s return date if Project Veritas confirms that it will comply with the requests therein. Project Veritas has repeatedly declined to do so, and similarly declines in its motion here to represent that it will comply.

And after PV repeatedly declined to ask for an extension in response to reassurances they would comply with the subpoena, they used the search on O’Keefe as an excuse to try to get such an extension.

Judge Analisa Torres denied PV’s request for an extension, which could have significant repercussions going forward.

There are several implications of this timeline. First, DOJ may believe, with some justification, that by first serving a subpoena on PV in response to their invitation to do so, only to have them equivocate about whether they would comply, they had fulfilled DOJ’s requirements to seek alternative resolutions, short of a search. That is, PV’s own games may have led to the search on O’Keefe.

The other issue is how this affects PV’s ability to claim expansive privilege protections. When PV alerted DOJ that it not only knew of the investigation, but who was leading it, DOJ likely took measures to identify how they had learned of the investigation. That’s a good way to identify attempts to obstruct an investigation. For example, after it became clear that Roger Stone was tampering in the Mueller investigation in 2018, Mueller obtained a pen register to learn with whom, besides Michael Caputo, Stone was communicating. That appears to be what alerted Mueller to how panicked Stone was by the Andrew Miller interview. That, in turn, is something that may have helped them obtain probable cause on the others. In a directly relevant example, for example, DOJ learned that Lev Parnas had deleted his iCloud account, which seems to be one of the things that helped SDNY obtain warrants for Rudy’s cloud-based accounts in 2019. When co-conspirators attempt to coordinate stories or delete evidence, it makes it a lot easier to obtain warrants.

As a result, there may be information pertaining to PV’s involvement in the alleged theft in three different places. First, I would be shocked if SDNY had not obtained the cloud-based communications of O’Keefe, Eric Cochran, and Spencer Meads. That said, DOJ has already indicated that it knows key communications of interest took place on Telegram, and it’s unclear what access DOJ has to that, independent of the phones Telegram texts were sent on. Then there are the contents of their phones, which may (and uncontroversially could) be subjected a Special Master review. If Torres grants PV’s request for a Special Master, it would give PV an opportunity to at least understand what the full legal exposure is. But then there’s the matter of the subpoena. I would be unsurprised if PV filed a challenge to the subpoena, which might go before Chief Judge Laura Taylor Swain rather than Judge Torres, and might be sealed as a grand jury matter. But this is a subpoena they invited, which will make it a lot harder to claim the subpoena was improper.

With Michael Cohen, the government was able to demonstrate during the Special Master review that some of the materials that Cohen might otherwise have tried to claim were privileged were not, in part because they had already seized his cloud communications (including his Trump Organization emails, which were hosted and turned over by Microsoft). Here, if PV responded to the subpoena at all, the government get a privilege log, laying out why PV thinks conversations O’Keefe had with 45 different lawyers were really privileged, thereby committing PV and O’Keefe to the claims they made in a subpoena response (assuming, of course, they don’t buy time by challenging the subpoena).

Whatever the merit — or abuses — of the focus on PV, PV’s games on the subpoena may have made efforts to protect O’Keefe far more difficult. And their game-playing with the subpoena will make it more difficult for other news outlets in the future to have DOJ treat efforts to accommodate reasonable requests in good faith.

It’s a complex issue and we don’t have enough information to know whether DOJ’s case — that PV was involved in the theft of Ashley Biden’s diary itself, and so not protected under any First Amendment precedent that might otherwise be available to them — is solid or if it instead charges them for involvement after the diary was already stolen, the First Amendment standard under Bartnicki which applies to journalists and non-journalists alike. PV is also trying to shield materials — including donor information and claimed attorney-client privileged materials — along with anything purporting to relate to journalism. The seeming desperation to hide donor information (which normally wouldn’t be involved in the scope of such a request) raises real questions about the sincerity of their journalistic claims, particularly given the recent revelation that PV would let donors dictate the timing of PV’s publications. And as DOJ noted in its response to PV’s motion for a Special Master to review the seized material, PV is not trying to protect the identities of its purported (second-hand) sources for the diary, so some protections that might otherwise apply do not here.

It is troubling that DOJ seized records from O’Keefe citing crimes that suggest liability for a crime after the fact, because if PV genuinely was only involved after the fact, it would pose a dangerous precedent for actual journalists. But the games that PV appears to have played with their subpoena dangle — and some changes they’ve already made to their story — suggest there my be more to the story.

Timeline

These events are covered by three SDNY dockets: 21-mc-813 for James O’Keefe, 21-mc-819 for Eric Cochran, and 21-mc-825 for Spencer Meads.

2020

October 12: O’Keefe sends email, not mentioning Ashley Biden by name (but clearly referring to her) explaining his decision not to publish “Sting Ray” Story.

October 25: National File publishes pages from Ashely Biden’s diary, linking parallel New York Post campaign targeting Hunter. It explains the provenance of the diary this way:

National File also knows the reported precise location of the physical diary, and has been told by a whistleblower that there exists an audio recording of Ashley Biden admitting this is her diary.

[snip]

National File obtained this document from a whistleblower who was concerned the media organization that employs him would not publish this potential critical story in the final 10 days before the 2020 presidential election. National File’s whistleblower also has a recording of Ashley Biden admitting the diary is hers, and employed a handwriting expert who verified the pages were all written by Ashley. National File has in its posession a recording of this whistleblower detailing the work his media outlet did in preparation of releasing these documents. In the recording, the whistleblower explains that the media organization he works for chose not to release the documents after receiving pressure from a competing media organization.

November 3: PV provides the diary to local law enforcement in FL.

2021

October 26: Paul Calli call DOJ, asks for AUSA Mitzi Steiner, and asked to speak about the PV investigation; Steiner asked how Calli had obtained her name, what else he had obtained, and declined to speak with Calli.

October 27: Lawyers for Project Veritas inform the DOJ that they will accept service for a subpoena relating to the investigation

November 3, 3:49 PM: Search warrants for Eric Cochran and Spencer Meads approved.

November 4, AM: FBI executes search warrants on former PV employees, Cochran and Spencer Meads.

November 4: PV lawyers accept service of subpoena.

November 4, one hour after the search: Mike Schmidt reaches out to Cochran and O’Keefe for comment about the investigation.

November 5, 11:18 AM: Warrant for O’Keefe authorized

November 5: NYT publishes story on investigation including language that PV would later baseless claim had to have come from the FBI.

November 6: FBI executes a search warrant on James O’Keefe

November 6: Schmidt contacts O’Keefe for comment.

November 6: Lawyers for Project Veritas ask the FBI to sequester material from the phone.

November 7: DOJ declines PV’s request and states the FBI has complied with all media guidelines.

November 8, 6:11PM: DOJ emails PV and tells them the extraction may start as soon as the next day.

November 8: After PV says it’ll file a legal challenge, FBI says it’ll only stop extraction after PV files such a challenge.

November 10: On behalf of PV, Calli Law moves to appoint a Special Master.

November 11, 12:51-12:53AM: Calli asks for confirmation that DOJ stopped extraction and review on O’Keefe’s phone on November 8.

November 11, 7:57AM: DOJ responds that the substantive review of O’Keefe’s phone was paused upon filing of motion on November 10.

November 11; 2:13PM: Judge Analisa Torres sets initial briefing schedule; in response to Torres order, DOJ stops extraction of O’Keefe phone.

November 12: In response to DOJ request, Torres extends briefing schedule.

November 12: Greenberg Traurig lawyer Adam Hoffinger, representing Eric Cochran, asks for Special Master to apply to materials seized from him, as well.

November 12: Letter signed by FL attorney Brian Dickerson but apparently docketed by NY lawyer Eric Franz asks for Special Master to apply to Spencer Meads

November 12, 3:49PM: Calli asks for clarification on review and extraction.

November 12, 3:59PM: DOJ responds that, “upon the filing of your motion, the Government paused the review of all material obtained from the search of your  client’s residence.”

November 14: Calli submits clarification letter regarding extraction and review.

November 15: Torres sets schedule in Cochran docket.

November 15: DOJ requests permission to reply to PV on November 19.

November 15: Calli requests inquiry into government leaks to NYT.

November 16: Torres grants permission to respond on November 19.

November 16: Ian H. Marcus Amelkin asks to delete initials of PV source, A.H., from docket.

November 17: Torres denies Amelkin request without prejudice.

November 17: Cochran motion to appoint Special Master.

November 18: For Meads, Dickerson formally moves for Special Master (and also complains that FBI seized dated devices).

November 19: Calli requests extension on response deadline for PV subpoena.

November 19: Government files opposition to request for Special Master and inquiry into purported leaks.

November 19: DOJ requests permission to respond to motion for extension on subpoena. Torres grants request.

November 21: DOJ opposition to extend subpoena deadline.

November 21: Government motion to oppose unsealing affidavits.

November 22: Torres denies motion for extension on subpoena.

November 22: PV reply to government opposition to Special Master.

November 23: Torres denies motion (including from RCFP) to unseal affidavits.

November 23: Cochran reply to government opposition to unseal affidavits.

November 24: Meads reply to refusal to unseal affidavits, including letters from House and Senate complaining to DOJ.

Government Refuses to Let Steve Bannon Sneak Away from His Federal Fraud Indictment

On February 11, Steve Bannon’s pardon was lodged in his federal docket with no explanation, entered with a date of January 19. As compared to the Mike Flynn pardon, there was no DOJ request to dismiss the prosecution nor an indication that Bannon had accepted it.

Apparently, on February 18, Bannon’s lawyer wrote Judge Analisa Torres an email requesting that she dismiss the indictment against Bannon. In response, yesterday the government submitted a letter agreeing that Bannon can be terminated from the docket and have his bond returned, but opposing that the indictment be dismissed.

As prosecutors explain, a pardon is only meant to forgive punishment, it is not intended to forget the crime. And if the court dismissed the indictment, prosecutors point out, it would have consequences beyond the pardon.

The fact that Bannon was pardoned does not extinguish the fact that a grand jury found probable cause to believe that he committed the offenses set forth in the Indictment, nor does it undercut the evidence of his involvement therein which the Government expects to elicit as part of its presentation at trial. Were the Court to dismiss the Indictment against Bannon, it could have a broader effect than the pardon itself, among other things potentially relieving Bannon of certain consequences not covered by the pardon.

[snip]

Accordingly, because Bannon does not set forth any legal authority for the proposition that a court should dismiss an indictment following a pardon, and the only stated basis for his request is to “clarify” his status, the Court should deny the request.

The government also demands that Bannon file the letter in the docket.

Finally, the Court should direct Bannon to publicly file his February 18th letter on the docket. Bannon’s counsel submitted the letter to the Court by email—and therefore effectively under seal—because, in his view, “Bannon should no longer be a defendant in the case.” However, until the defendant is administratively terminated, he remains a named defendant and more important, Bannon’s status in the case is not a basis to make his submission under seal.

The government submitted the filing on the same day that CNN reported an accelerating state investigation into Bannon for the same crimes.

The Manhattan district attorney’s office has subpoenaed financial records related to Steve Bannon’s crowd-funding border-wall effort, signaling that its criminal investigation into former President Donald Trump’s chief strategist is advancing, according to people familiar with the matter.

Prosecutors sent the subpoenas after Trump pardoned Bannon in late January for federal conspiracy crimes tied to the southern border-wall project, making Bannon among the Trump world figures — including the former president — subjects of criminal investigations by Manhattan district attorney Cyrus Vance.

The grand jury subpoenas were sent to Wells Fargo, one of the financial institutions that handled some of the accounts used in the fundraising effort, and to GoFundMe, the crowdfunding platform where Bannon’s project, “We Build the Wall,” once operated, the people said.

The state grand jury investigation revives the possibility that Bannon, the conservative and outspoken political strategist, could face state criminal charges after shedding the federal case last month.

In addition to the criminal investigation, the New Jersey attorney general’s office has launched a civil inquiry into We Build the Wall. In September, the New Jersey Division of Consumer Affairs subpoenaed We Build the Wall for documents seeking a wide range of records, according to court filings.

This all suggests that Bannon may be in a far worse place for having obtained a Trump pardon.

In mentioning its intent to elicit testimony of Bannon’s actions in the letter, the government seems to be alluding to the fact that Bannon is a named co-conspirator. They will want (and need) to introduce his actions and statements as a co-conspirator into evidence to convict the others. Thus, it is important for prosecutors that he remain a named — albeit pardoned — co-conspirator in the Federal crimes.

Forcing Bannon’s attorney to submit the letter in the docket itself will effectively force him to officially accept the pardon, which prosecutors will then argue is admission of guilt, making the co-conspirator evidence from him even more valuable by association.

The public filing may also be necessary before Cy Vance can request the grand jury materials from Judge Torres, as referenced in the CNN piece.

And, of course, rather than facing a sentence at some Club Fed prison, Bannon might now be facing a crappier New York State prison like Rikers.

All that’s before any other federal charges facing Bannon related for foreign influence peddling.

It was never going to be easy for Bannon to pull off a Trump pardon. Thus far, his attorney Robert Costello may be making things worse.