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Hard Lines on Legal Capitulation

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To succeed, authoritarians must weaken or co-opt civil society, those spheres of society via which people form social ties independent of government.

That’s what Trump has been trying to do with his attacks on universities, the press, and non-governmental organizations, among other targets.

Businesses — small and large — are an important subset of civil society, both because so much local, national, and international power is concentrated there, but also because corporations often favor certain trappings of authoritarianism, particularly if it comes (as Trump’s does) with a promise to let corporations commit crimes.

Businesses are often the easiest corners of civil society for budding authoritarians to co-opt.

Trump has attempted to co-opt businesses by trading thinly-disguised bribes for favorable government assistance, whether in the form of closing investigations into illegal business practices, approval for consolidation, or massive government contracts. These bribes have a lasting value for Trump, because they serve to corrupt businesses as an ongoing process, locking in a commitment to succeed not by competition, but by tribute. Businesses that buy into Trump’s corrupt quid pro quo will have a difficult time ever freeing themselves from it.

This has been a particularly useful tool with media corporations. While ABC continues to do important journalism in the wake of Disney’s capitulation, there’s a tacit understanding that Trump can repeat his coercion if future reporting really bothers him, and CBS has all but sacrificed its journalistic independence in advance of the expected Paramount settlement. WaPo’s plight in the face of Jeff Bezos’ obeisance to Trump is even more stark.

This dynamic is one reason why right wing opposition to Trump’s tariffs is so important: the tariffs are so destructive that at least some right wingers were and are willing to confront Trump publicly on them (and the rest of the business community is no doubt cheering silently from cowardly perches in executive suites).

And this dynamic is why I find WSJ’s report on the evolving response to Trump’s attempt to cow Big Law so interesting.

The entire piece presents a curious narrative arc, describing the stories that capitulating firms tell themselves to excuse their choice.

At Cadwalader, Wickersham & Taft, managing partner Pat Quinn grew emotional when he announced to fellow partners that their firm—the oldest in New York—had reached a deal for peace with the Trump administration. Days later, in a firmwide meeting, Quinn said Cadwalader’s leadership had strongly considered fighting the Trump administration but ultimately elected to reach a deal out of a sense of duty to the firm and its clients, according to people familiar with his remarks.

[snip]

Firms that struck deals hoped to find solidarity in numbers. The country’s largest firm, Kirkland & Ellis, which had about $9 billion in revenue last year, lobbied its peers to sign deals.

Some of this may be denial or cowardice. The WSJ specifically notes that Paul Weiss’ Brad Karp, who serves as a kind of villain in the piece, is “a longtime Democratic donor.” Given its longstanding right wing political posture, Kirkland’s pitch for solidarity in capitulation might be a corrupt bid to support authoritarianism.

As in all of these stories, GOP firm Jones Day is not mentioned.

The story contrasts that capitulation from Paul Weiss and Kirkland and others with examples of general counsels — Citadel appears in a splashy lede, and Oracle, Microsoft, McDonalds, and Morgan Stanley are named among ten or eleven other companies — that are specifically seeking out law firms that stood up to Trump, because they view that as indication that they’ll take a hard line in negotiations for their business.

At least 11 big companies are moving work away from law firms that settled with the administration or are giving—or intend to give—more business to firms that have been targeted but refused to strike deals, according to general counsels at those companies and other people familiar with those decisions.

Among them are technology giant Oracle, investment bank Morgan Stanley, an airline and a pharmaceutical company. Microsoft expressed reservations about working with a firm that struck a deal, and another such firm stopped representing McDonald’s in a case a few months before a scheduled trial.

In interviews, general counsels expressed concern about whether they could trust law firms that struck deals to fight for them in court and in negotiating big deals if they weren’t willing to stand up for themselves against Trump. The general counsel of a manufacturer of medical supplies said that if firms facing White House pressure “don’t have a hard line,” they don’t have any line at all.

In other words, the story portrays a very real spectrum of response to Trump’s threat, but a spectrum that may be shifting towards resistance to Trump.

Which is why two anecdotes at the end of the 1,900-word story are of such interest.

WSJ describes the role of Sullivan & Cromwell’s Robert Giuffra, in the seemingly conflicted role of representing Trump on two appeals at the same time as he negotiated Paul Weiss’ epic capitulation. Purportedly in an effort to tamp down objections to his role within the firm, Giuffra outsourced his own agency to judges who would block the attacks. These attacks on law firms are “likely unconstitutional,” he reportedly explained, but leave that for the judges to determine (this is precisely the stance that Senate Appropriations Chair Susan Collins has adopted towards Trump’s usurpation of her role).

At Sullivan & Cromwell, some lawyers have bristled at the role that co-chair Robert Giuffra played in facilitating a deal for Trump to drop an executive order against rival firm Paul Weiss. Giuffra, one of Trump’s personal lawyers, participated by phone in an Oval Office discussion with the Paul Weiss leader, who was there to work out a deal.

Giuffra is representing Trump in two New York appeals—one of them a challenge to his conviction in the Stormy Daniels hush-money case. Giuffra told his partners that taking on the cases would give the firm strong ties to the new administration.

Trying to quell discontent within his own firm, Giuffra told partners at an April meeting that he believed the orders were likely unconstitutional and would be blocked by judges, and that he hoped the White House would stop issuing them, according to people familiar with his remarks. White House aides said they weren’t aware of his opposition.

The story is full of anonymous sourcing, hiding even the identity of at least six companies that are moving business to the targeted firms. Some, but not all, of that can be attributed to protecting privileged relationships. The rest is likely testament that even the companies seeking out firms willing to stand up to Trump want to avoid antagonizing the president. Hilariously, though, WSJ informed the White House of Giuffra’s opposition to these attacks, which may undermine the stated purpose — securing strong ties to the White House — of his role in these negotiations, and may heighten the discomfort with his role at Sullivan & Cromwell.

Which is how we arrive at the final two paragraphs of the story.

The second-to-last paragraph attributes the logic and authorship of the Executive Orders to Stephen Miller, where so much of Trump’s authoritarianism arises.

Trump remains interested in the orders, and deputy White House chief of staff Stephen Miller and his allies want to keep the threats of more executive orders on the table because they think it dissuades the best lawyers from representing critics of the administration. Miller has repeatedly complained that some of the country’s top lawyers took on lawsuits against the Trump administration in the first term, which he and other Trump advisers view as stymying the agenda of a democratically elected president.

The White House’s appetite for a fight with the legal industry appears to have waned. There hasn’t been a new executive order since early April.

Miller (who started an NGO designed to fight liberal policies, especially those of Joe Biden) complained when top lawyers fought Trump in the first term, which WSJ credulously parrots amounts to thwarting a democratically-elected President.

And so, WSJ describes, Miller and “his allies” (although both Ryan Barber and Josh Dawsey are bylined on this report, it doesn’t mention their past scoop about Boris Epshteyn’s role in brokering the capitulation deals) want to keep alive the threat of such orders, which have been soundly rejected by Obama appointee Beryl Howell and George W Bush appointees John Bates and Richard Leon. They want to sustain that threat because they imagine that it’ll dissuade precisely the lawyers who are finding it is good for business to show you’ll take a hard line to defend yourself.

That may true in some cases, at least for politically exposed entities, as WaPo describes. Corporations will find legal representation, but migrants and trans people may have a harder time doing so.

In spite of the described ongoing commitment to this attack from Miller (and “his allies”), WSJ ends this remarkable story with the observation that Trump has not issued any new such orders. It doesn’t mention that, 31 days of a 60-day appeal window after Howell’s ruling later, Trump has also not (yet) appealed any of the judges’ orders rejecting these EOs, not even the part — the part stripping security clearances — most ripe for appeal.

Perhaps they’re waiting for the fourth case, Susman Godfrey’s challenge currently pending before Biden appointee Judge Loren AliKhan. Or perhaps people smarter about the law than Miller (and unnamed allies like Epshteyn) may have noticed that these orders risk undermining Executive authority and create an acute ongoing legal risk, particularly if Democrats were to win one or both houses of Congress at midterms.

In rejecting these orders, all three judges pointed to Trump’s flipflop on the Paul Weiss order to adopt a maximal ruling against Trump.

Leon did so in adopting WilmerHale’s request to treat the entire order, including the security clearance restriction, as a unified whole:

The President’s treatment of the Paul Weiss Order underscores the unified nature of the Order. The Paul Weiss Order largely tracks the WilmerHale Order, with a Background section and similar operative provisions. See generally Paul Weiss Order. When Paul Weiss struck a deal with the President, he rescinded the Paul Weiss Order in full, citing the firm’s “remarkable change of course.” Compl. ¶¶ 102–03; Paul Weiss Rescission Order. The President’s treatment of the Paul Weiss Order shows that he “intended” these Executive Orders “to stand or fall as a whole.” See Minn. v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 173 (1999) (finding that an Executive Order was designed “to stand or fall as a whole” because it “embodied a single, coherent policy”).

And both Howell…

While the Paul, Weiss Revocation Order summarized that firm’s agreement to, inter alia, “adopt[] a policy of political neutrality with respect to client selection and attorney hiring; tak[e] on a wide range of pro bono matters representing the full political spectrum; commit[] to merit-based hiring, promotion, and retention . . .; dedicat[e] the equivalent of $40 million in pro bono legal services during [President Trump’s] term in office . . .; and other similar initiatives,” none of these agreedupon policy or practice changes appear to explain or address how any national security concerns sufficient to warrant the Paul, Weiss EO could have changed so rapidly. Id. § 1, 90 Fed. Reg. at 13685. The speed of the reversal and the rationale provided in the Paul, Weiss Revocation Order, which focused only on agreements to advance policy initiatives of the Trump Administration, see id., further support the conclusion that national security considerations are not a plausible explanation for Section 2.

[snip]

The fact that Paul, Weiss quickly negotiated a deal, including an agreement to provide “the equivalent of $40 million” in free legal work, rather than face the potential injuries of the similar Executive Order targeting that firm, see Paul, Weiss Revocation Order, 90 Fed. Reg. at 13685, demonstrates the coercive power of such targeting by the Trump Administration.

… And Bates did so to reach the normally unassailable presidential authority to govern security clearances:

And if any doubt remains as to the sincerity of the invocation of national security, take a look at the Paul Weiss saga. Paul Weiss’s executive order imposed the same tailored process on its employees’ security clearances. See First Paul Weiss E.O. § 2. What it took to escape that process—denouncing a former partner, changing client selection and hiring practices, and pledging pro bono work to the President’s liking—had not even a glancing relationship to national security.

Put simply, this blunderbuss of an order does not engage in the sort of “legitimate consideration of speech,” Reichle v. Howards, 566 U.S. 658, 668 (2012), that might sometimes be necessary to keep classified information in safe hands. Rather than ensuring that national secrets remain with those who will keep them, Section 2’s process “seek[s] to leverage” the Executive’s control over security clearances as a way to change speech. See Agency for Int’l Dev. v. All. for Open Soc’y Int’l, 570 U.S. 205, 214–15 (2013). Section 2, in other words, is about using another lever in the President’s arsenal to extinguish speech he dislikes. Cf. id. at 218 (“This case is not about the Government’s ability to enlist the assistance of those with whom it already agrees. It is about compelling a grant recipient to adopt a particular belief as a condition of funding.”). The First Amendment forbids that sort of speech manipulation by the government, even in an arguably national security-related setting.

These judges — particularly Howell, with her description of coercion — are describing bribery, of that thinly veiled quid pro quo used with direct payments now laid bare in the quick flip flop with Paul Weiss. The risk that Trump’s flipflop on Paul Weiss could be used to prove bribery, and the risk it poses to law firms going forward, was predicted in an amicus from ethics professors.

None of that, mind you, appears in the WSJ story.

WSJ is describing something simpler: the value proposition in hiring a law firm willing to stand up to a bully.

It’s just one response among many, even among many from corporations. But that value proposition has had the effect of getting key corporations to defend civil society.

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“The Very Importance of Facts Is Dismissed, or Ignored:” Todd Blanche Whines about Women Judges, Again

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Yesterday, just ten minutes after the last career AUSA, Terry Henry, dropped off the Perkins Coie case (using a letter purportedly authored by Doug Dreier, who dropped off the case Tuesday), DOJ filed a motion to disqualify Beryl Howell from the case.

Fair proceedings free from any suggestion of impartiality are essential to the integrity of our country’s judiciary and the need to curtail ongoing improper encroachments of President Trump’s Executive Power playing out across the country. In this case, reasonable observers may well view this Court as insufficiently impartial to adjudicate the meritless challenges to President Trump’s efforts to implement the agenda that the American people elected him to carry out. In fact, this Court has repeatedly demonstrated partiality against and animus towards the President.

The motion is packed with allegations that don’t even make sense. Beryl Howell sinned by:

  • Questioning Twitter’s motives for defying a lawful warrant.
  • Upholding the gag order in the Twitter case for reasons other than what DOJ claims.
  • Disagreeing that Trump’s pardon of an accused cop assailant corrected “a grave national injustice.”
  • Finding that Trump had attempted to get Evan Corcoran to break the law for him.
  • Correcting Chad Mizelle’s false claims about the Steele dossier by saying, “you cannot be saying that there was nobody involved in the 2016 Trump campaign that had any connection with any Russian; you can’t say that.”
  • Noting that Trump lost a lawsuit against Perkins Coie.

The recusal motion says nothing about the fact that Howell oversaw the grand jury investigation of Michael Sussmann, permitting repeated subpoenas to law firms, including Perkins Coie. Beryl Howell treated Trump no better or worse than she did Sussmann.

Perhaps the craziest excuse given for demanding that Howell recuse, though, regurgitated an Elise Stefanik complaint that at a public appearance in 2023, Beryl Howell quoted Heather Cox Richardson about propaganda, without mentioning Trump at all.

This historian Heather Cox Richardson, whose book I’ve been reading . . . cautions in her book’s opening line . . . “America is at a crossroads teetering on the brink of authoritarianism” and she echoes this thought in her closing line, that we are at a time of testing and how it comes out . . . is in our own hands.

(This video was originally posted by one of Steve Bannon’s propagandists.)

In other words, DOJ’s political appointees, including Todd Blanche, are demanding that Beryl Howell recuse from this case because she warned about precisely the kinds of disinformation that DOJ spews in this court filing.

Blanche’s involvement is not just symbolic. This filing was authored by someone in the Deputy Attorney General’s office — Blanche’s office.

Blanche’s involvement matters for two reasons.

First, this is a ploy that Todd Blanche pulled before, back before taxpayers were on the hook to pay him to serve as defense attorney for Donald Trump. Back in September 2023, he moved to disqualify Tanya Chutkan in Trump’s January 6 case because she had already had to deal with multiple January 6 defendants who compared their own conduct to that of Trump (though the complaint would have stood for any DC judge).

President Donald J. Trump, through undersigned counsel, respectfully moves to recuse and disqualify the Honorable Tanya S. Chutkan pursuant to 28 U.S.C. § 455(a). Fairness and impartiality are the central tenets of our criminal justice system.

Both a defendant and the public are entitled to a full hearing, on all relevant issues, by a Court that has not prejudged the guilt of the defendant, and whose neutrality cannot be reasonably questioned.

Todd Blanche, when he’s trying to defend Trump’s abuse of power, is making a habit of impugning women judges.

The other reason Blanche’s personal involvement matters is that most of the things he complains about are his own gripes carried over from serving as Trump’s defense attorney. Evan Corcoran testified that Trump deceived him about the classified documents his client was hoarding. Twitter ultimately turned over Trump’s account information, which proved that Trump was holding the weapon — the Twitter account — that almost got Mike Pence murdered. The way that Trump’s false claims led thousands to disrupt the peaceful transfer of power remained at the core of the prosecution of Trump even after SCOTUS had their way with the case.

Central to Perkins Coie’s argument is that Trump’s punitive Executive Order targeting the law firm amounts to a mulligan, an attempt to win legal battles he already lost, including the prosecution of Sussmann.

I think the government admitted to you that this was punitive. That makes a big difference, too, because in the separation of powers analysis, one thing you will look at — we submitted to you — that what they have done is just a mulligan from the things that happened in the judicial system.

Sussmann was indicted and acquitted. President Trump, as a private citizen, sued the law firm; and he lost. The punitive portion, courts mete out punishment, not the Presidents; and courts adjudicate, not Presidents.

Now, Blanche has done the same himself, making his own losses as a defense attorney the business of the United States.

It does nothing but prove that he has a conflict, not that Beryl Howell does.

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Amy Gleason’s Four — I Mean Five — Executive Orders

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In both her March 14 and March 19 declarations submitted in the CREW FOIA case [docket], purported DOGE Administrator Amy Gleason described that DOGE’s job was — in addition to the technology modernization function the original USDS was tasked with — to advance President Trump’s 18-month “DOGE agenda.”

19. As described in the USDS Order, USDS is charged with furthering President’s Trump DOGE agenda, by “modernizing Federal technology and software to maximize governmental efficiency and productivity.”

20. In furtherance of these efforts, the USDS Order directs the USDS Administrator to work with agency heads to “promote inter-operability between agency networks and systems, ensure data integrity, and facilitate responsible data collection and synchronization.”

21. In addition, the USDS Order charges the DOGE Service Temporary Organization with advancing President Trump’s 18 month “DOGE agenda,” as set forth in various Executive Orders. See ¶¶ 7, 24.

She describes the “DOGE agenda,” which she says stems from four Executive Orders and one Presidential Memorandum, this way:

24. The “DOGE agenda” includes the technology modernization efforts described in the USDS Order, as well as initiatives that are described in four separate Executive Orders and a presidential memorandum. These materials describe distinct—and limited—roles for USDS and agency heads and agency DOGE Teams. They include:

a. Executive Order 14,170, Reforming the Federal Hiring Process and Restoring Merit to Government Service (Jan. 20, 2025), which directs the USDS Administrator to consult with the Assistant to the President for Domestic Policy and the OMB Director on a federal hiring plan that focuses on hiring highly skilled Americans. The order charges the Assistant to the President for Domestic Policy with actually developing the plan and disseminating it to agency heads.

b. Presidential Memorandum, Hiring Freeze (Jan. 20, 2025), which instructs the USDS Administrator to consult with the OMB Director, who is responsible for submitting a “plan to reduce the size of the Federal Government’s workforce through efficiency improvements and attrition.” The USDS Administrator is also responsible for consulting with the OMB Director and the Treasury Secretary, who is responsible for determining when to lift the hiring freeze at the Internal Revenue Service.

c. Executive Order 14,210, Implementing the President’s “Department of Government Efficiency” Workforce Optimization (Feb. 11, 2025), which directs agency heads to reduce agency headcount and agency DOGE Team Leads to provide monthly reports to the USDS Administrator on agency hiring. The USDS Administrator is also directed to report to the President on agencies’ compliance with the order.

d. Executive Order 14,218, Ending Taxpayer Subsidization of Open Borders (Feb. 19, 2025), which requires the USDS Administrator to consult with the Assistant to the President for Domestic Policy and the OMB Director to identify sources of federal funding for illegal immigrants and collectively recommend agency actions to align spending with the purposes of the order and, where relevant, enhance eligibility verification systems.

e. Executive Order 14,219, Ensuring Lawful Governance and Implementing the President’s “Department of Government Efficiency” Deregulatory Initiative (Feb. 19, 2025), which requires agency heads, in consultation with their DOGE Teams Leads, to undertake deregulatory efforts.

f. Executive Order, 14,222, Implementing the President’s “Department of Government Efficiency” Cost Efficiency Initiative, (Feb. 26, 2025), which requires each agency head to make federal expenditures transparent and for DOGE Team Leads to report to the USDS Administrator on contracting and non-essential travel expenses.

25. Cumulatively, these orders and memorandum set forth the responsibilities assigned to USDS, the U.S. DOGE Service Temporary Organization, agency DOGE Teams, and agency DOGE Team Leads. As an entity created by Executive Order, USDS has no other independent sources of legal authority. [emphasis and links added]

There’s a lot that’s interesting about this — not least that she described the DOGE agenda consisted of four EOs but she cites five.

So much for government efficiency.

My guess is EO 14,218, which assigns DOGE the role of hunting down payments that go to undocumented people, was added as an afterthought. The EO does provide DOGE a role, but (unlike most of the others) does not address DOGE in the title.

What I’m particularly interested in, though, is that Gleason does not include EO 14,217, Commencing the Reduction of teh Federal Bureaucracy, the February 19 EO that ordered Institute for Peace, among other entities, to be shut down.

That’s not surprising. DOGE isn’t mentioned in the EO at all.

But that’s interesting because, according to USIP’s complaint, at a time when George Moose was still unquestionably President of the Institute for Peace, starting the day after the EO on February 20, DOGE representatives started nagging Moose about shutting down. First, Chris Young reached out. Then Moose met with DOGE representatives as President of USIP. Then Moose sent a letter to OMB, consistent with instructions in the EO. Then DOGE started conducting reconnaissance in advance of shutting USIP down.

39. On February 20, 2025, the day after the Executive Order was issued, Chris Young, a representative of the U.S. DOGE Service, contacted the Institute.

40. The Institute agreed to hold a virtual meeting with DOGE representatives on February 24, 2025. Ex. A, Declaration of George Moose; Ex. D, Declaration of George Foote.

41. In that February 24 meeting, the Institute president, Mr. Moose, and outside counsel for the Institute, George Foote, explained to DOGE representatives Cavanaugh, Burnham, and Altik that the Institute is an independent nonprofit corporation outside of the Executive branch. ; Ex. A, Declaration of George Moose; Ex. D, Declaration of George Foote.

42. On March 5, 2025, the Institute submitted a courtesy letter to OMB responding to the requests made in the Executive Order. The letter explained the Institute’s establishment by Congress and its status as an independent nonprofit that is not an Executive branch entity and reiterated the Institute’s willingness to maintain its longstanding cooperation with the Executive branch with regard to the foreign policy agenda of the President of the United States. Ex. D [sic], OMB Letter.

43. On or about March 8, 2025, Mr. Moose received word that DOGE was making inquiries into the status of the Institute’s security operations. These inquiries were intended to facilitate DOGE’s access to the Institute’s headquarters, just as DOGE had done with respect to numerous executive agencies. Ex. A, Declaration of George Moose.

44. On or about March 9, 2025, USIP outside counsel George Foote emailed Defendants Burnham, Altik, and Cavanaugh with information about the non-federal nature of the Institute’s security and the Institute’s ownership of its headquarters building. Mr. Foote again confirmed that the Institute is an independent nonprofit corporation and stated that unauthorized personnel would only be admitted with a valid warrant issued by a court. Ex. D., Declaration of George Foote. [emphasis, line, and links added]

It wasn’t until March 14 that the White House purported to fire all the board members so they could replace Moose.

46. On or about March 14, 2025, Trent Morse of the White House Presidential Personnel Office emailed certain members of the Board, including the Board Member Plaintiffs, claiming to inform them of their termination from the Board by President Trump. Those emails did not state any justification for the purported terminations. See Ex. D, Declaration of George Moose.

47. Shortly thereafter, on March 14, 2025, representatives from DOGE and Defendant Jackson appeared at USIP headquarters building requesting access. Because the Institute has administrative jurisdiction over the parcel of land on which its headquarters sits and the USIP building is owned by the Institute, those representatives were denied entry.

48. Later that same evening, Defendants Altik and Cavanaugh returned to the Institute’s headquarters accompanied by FBI Special Agents and presented Mr. Foote with a “resolution” signed by the three ex officio members of the Board purporting to remove Mr. Moose from his position as President of the Institute. Ex. F, Ex Officio Resolution. [emphasis and link added]

There’s nothing in the four — er, five — EOs that Gleason cites that authorizes DOGE to start shutting down agencies (and to the extent it calls for firing people at agencies, it puts agency heads in charge of that). And there’s nothing in the USIP- specific one that authorizes anyone outside the head of the affected entities — so, Moose, until March 14 if you believe he was lawfully fired — to do anything other than receive a report (as Russ Vought did on March 5) and discuss budgets with the head of the entity.

That means the actions DOGE took before Vought received the letter (marked with a line) — and probably the ones that happened at least until Trump claims to have replaced Moose — were not authorized under the scheme Gleason lays out.

She says that every DOGE team member at an agency reports to the agency head.

Every member of an agency’s DOGE Team is an employee of the agency or a detailee to the agency. The DOGE Team members – whether employees of the agency or detailed to the agency – thus report to the agency heads or their designees, not to me or anyone else at USDS.

So even if DOGE wants to claim that James Burnham and Jacob Altik and Nate Cavanaugh (all named defendants in the complaint) were reporting to a different agency — probably OMB, though ProPublica says they’re all lawyers locataed in the Executive Office of the Presidency — the EO shutting USIP down doesn’t even envision OMB to be involved before receiving that March 5 letter. After that, it only envisions OMB discussing budgets with the entity head. It would seem the things DOGE did before that were definitely unauthorized (and in any case not covered under the DOGE agenda), and most of the rest were too.

Judge Beryl Howell rejected USIP’s request for a Temporary Restraining Order yesterday in part because it has enough trappings of a federal entity to come under the recent DC Circuit Court opinion upholding Hampton Dellinger’s firing, and in part because the harms alleged in the complaint are contingent on the takeover being ruled unlawful. (Howell’s logic is quite similar to Richard Leon’s in the analogous US Africa Development Foundation lawsuit.)

Upon further consideration, the Institute may be deemed to sit outside of the executive branch, or the removal protections may be deemed appropriately enforceable within the Supreme Court’s jurisprudence, but plaintiffs did not demonstrate as much in this expedited posture. See generally, Pls.’ Mot. (not addressing Myers or Humphrey’s Executor).Plaintiffs also did not demonstrate irreparable harm because their alleged harm was dependent on their success on the merits. Plaintiffs cited as their irreparable harm their inability to carry out their statutory functions and the harm to the Institute based on defendants’ intent to reduce it to the “statutory minimums” and defendants’ alleged destruction of the Institute’s property. Compl. 1 ¶¶ 59-65. Those harms, however, are dependent on plaintiffs’ success on the merits. Plaintiffs’ counsel can only represent the Institute–and thus properly assert the harms of the Institute–to the extent that plaintiff Board members and former President of the Institute, George Moose, were wrongfully removed. Plaintiffs likewise only suffer harm in their official capacities–the capacities in which they pled, Compl. ¶¶ 7-11–if they must lawfully remain members of the Board.

This may have been an invitation from Howell for plaintiffs to craft their complaint better.

And I don’t understand why they didn’t include an Appointments Clause in their complaint. Because people who were presenting as DOGE took steps to start dismantling the Institute, in defiance of Congress’ apparent intent, while Moose remained in charge.

USIP is not the only instance where DOGE took action that appears not to be covered by these four — er, five — EOs. In DOGE’s assault on the US African Development Foundation (which Trump targeted under the same EO), some of the same characters started invading under false pretenses before its head, Ward Brehm, was allegedly replaced on February 24.

4. On February 21, Ethan Shaotran, Jacob Altik, and Nate Cavanaugh arrived at USADF. Shaotran and Cavanaugh introduced themselves as IT personnel from GSA. Altik stated that he was a lawyer from the White House Personnel Office. They explained that we needed to immediately sign a memorandum of understanding for their detail assignment.

5. Once the MOU was signed, Altik explained the true purpose of the meeting, which was to provide USADF leadership with DOGE’s interpretation of the “minimum presence and function” required by USADF’s statute. DOGE read the statute to mean: 1) only the USADF Board and President/CEO are statutorily required, 2) only one or two grants funded by private sector partnerships are required, and 3) all other personnel/employees therefore needed to be eliminated under the Executive Order.

6. Altik stated that his next step was to present a RIF plan (where all USADF staff would be fired) to the board for approval by Monday, February 24. Altik threatened that if the Board didn’t approve the plan, the Board would be dismissed. Both Mathieu Zahui and I tried to explain to Altik that the President’s Executive Order gave the agency 14 days to respond and that we intended to comply with the order.

7. Cavanaugh and Altik then demanded immediate access to USADF systems including financial records and payment and human resources systems, which include staff job descriptions, personnel files, salaries, and organizational structure.

8. Mathieu Zahui outlined the administrative process—which includes security clearances—required to access sensitive data and personally identifiable information from the Agency’s systems. He provided forms for the software engineers to complete to begin background checks.

9. Cavanaugh requested waivers on the clearance process from the USADF board. Altik demanded contact information for all board members and further stated that if the Board was unable to provide immediate clearance to access USADF systems, that he would issue a notice of dismissal to all board members the same day.

[snip]

12. That same day, February 21, after learning that the DOGE team had secured the memorandum of understanding under false pretenses—stating that they would modernize our computer systems but then attempting to shut down USADF— our General Counsel withdrew the MOU.

13. On February 24, Ward Brehm informed USADF that he had received an email from Trent Morse notifying Brehm that he had been dismissed as a board member of USADF. The email was very brief and did not specify any reasons for the dismissal.

There are other instances, though these two are notable because representatives of DOGE started dismantling two entities before they were decapitated, meaning they couldn’t have been reporting to the entities themselves.

Admittedly, Amy Gleason’s declarations are meant to serve the limited purpose of evading FOIA. As I’ve discussed, her declarations conflict with another document sworn by her claiming to be detailed to HHS. Judges are actively scoffing at these conflicts, so it’s not like we should trust her CREW declarations either.

But until they declare Gleason’s latest to be inoperative, they would seem to lock the government into a statutory arrangement in other cases.

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Trump’s Legal Blackballing Effort Selectively Protects Jones Day

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I’m working on a post on the Administration’s efforts to blackball law firms with ties to Trump’s imagined enemies.

As I’ll show, the effort builds on Trump’s Orwellian “Weaponization” effort; the two fact sheets involved in this effort (Perkins Coie; Paul Weiss) repeat Trump’s false claim that 51 spooks claimed Hunter Biden’s laptop “was part of a Russian disinformation campaign.” Each fact sheet then airs some personal grievances of Trump’s.

Then, Section 1 the Executive Orders (Perkins Coie; Paul Weiss) summarize that grievance. Based on that grievance, the order does the following:

Section 1: Purpose (airing of grievance)

Section 2: Security Clearance Review (in effect, suspension of any clearances held by firm attorneys)

Section 3: Contracting (stripping of federal contracts)

Section 4: Racial discrimination (accusing the firms of racial discrimination)

Section 5: Personnel (prohibiting the hiring of lawyers from targeted firms and prohibiting access to government facilities)

Most of scheme (and even more of DOJ Chief of Staff Chad Mizelle’s attempt to defend it in a hearing before Beryl Howell last week) rests on a national security claim, in turn built off the Section 2 Security Clearance order.

But a big part of it attempts to enforce Trump’s federal segregation efforts in private law firms. For each, the grievance section accuses the firm of “discriminat[ing] against its own attorneys and staff.”

In addition to undermining democratic elections, the integrity of our courts, and honest law enforcement, Perkins Coie racially discriminates against its own attorneys and staff, and against applicants. Perkins Coie publicly announced percentage quotas in 2019 for hiring and promotion on the basis of race and other categories prohibited by civil rights laws. It proudly excluded applicants on the basis of race for its fellowships, and it maintained these discriminatory practices until applicants harmed by them finally sued to enforce change.

My Administration is committed to ending discrimination under “diversity, equity, and inclusion” policies and ensuring that Federal benefits support the laws and policies of the United States, including those laws and policies promoting our national security and respecting the democratic process. Those who engage in blatant race-based and sex-based discrimination, including quotas, but purposefully hide the nature of such discrimination through deceiving language, have engaged in a serious violation of the public trust. Their disrespect for the bedrock principle of equality represents good cause to conclude that they neither have access to our Nation’s secrets nor be deemed responsible stewards of any Federal funds.

Section 4 of the Perkins Coie order (which the Paul Weiss order incorporates), reads:

Sec. 4. Racial Discrimination. (a) The Chair of the Equal Employment Opportunity Commission shall review the practices of representative large, influential, or industry leading law firms for consistency with Title VII of the Civil Rights Act of 1964, including whether large law firms: reserve certain positions, such as summer associate spots, for individuals of preferred races; promote individuals on a discriminatory basis; permit client access on a discriminatory basis; or provide access to events, trainings, or travel on a discriminatory basis

(b) The Attorney General, in coordination with the Chair of the Equal Employment Opportunity Commission and in consultation with State Attorneys General as appropriate, shall investigate the practices of large law firms as described in subsection (a) of this section who do business with Federal entities for compliance with race-based and sex-based non-discrimination laws and take any additional actions the Attorney General deems appropriate in light of the evidence uncovered.

In other words, Donald J. Trump has blackballed two law firms in significant part because they aim for diversity in their hiring practices.

Which led me to check the website for Jones Day, still the counterpart to what Perkins Coie used to be for Democrats, the law firm serving the Republican party.

And lo and behold, the Jones Day website looks like Federal government sites did until inauguration day.

Jones Day has a page celebrating its diversity firsts.

They have a page listing affinity groups the likes of which Trump has eliminated from Federal government.

And there are several other pages, including a 1L conference focused on diversity.

The documentation targeting Perkins Coie and Paul Weiss also target the firms for their pro bono work — the former for representing some trans service members challenging the DOD ban, and the latter because Jeannie Rhee represented DC in a lawsuit against January 6 culprits that DC recently dismissed with prejudice (in fact, there were three other Paul Weiss attorneys on the case, as well as a bunch from Dechart, but Rhee was the only one identified, even indirectly, in the backup to the blackballing attempt).

Laudably, Jones Day also does a great deal of pro bono work. It has a page boasting of its pro bono work including — among other things — “representing migrant minors and mothers with their children, many of whom were detained by the U.S. government after fleeing life-threatening, gender-based gang violence in their home countries.”

Jones Day and Our Pro Bono Culture

Ukraine

Immigration – The Border Project

Combatting Human Trafficking

Constitutional Policing and Civil Justice Reform, Standing Together

Advancing the Rule of Law in Africa

Hate Crimes Task Force

American Hospital Association (AHA) & Jones Day Human Trafficking Interview

Obviously, all of this is laudable! These firms are so powerful, it’s important that they remain accessible and give back.

But even the law firm to which Trump has remained loyal — a law firm at which Mizelle himself once worked as of counsel, a lawfirm whence Trump’s Acting Assistant Attorney General in the Civil Division as well as several top Civil Division lawyers came — engages in the same kind of laudable practices for which Trump is blackballing Perkins Coie and Paul Weiss. (Curiously, none of the Jones Day Civil Division personnel were at the Perkins Coie hearing last week.)

Update: EEOC sent out letters demanding info on DEI practices from 20 firms not named Jones Day.

The law firms that received letters from Acting Chair Lucas include:

  1. A & O Shearman
  2. Debevoise & Plimpton LLP
  3. Cooley LLP
  4. Freshfields Bruckhaus Deringer LLP
  5. Goodwin Procter LLP
  6. Hogan Lovells LLP
  7. Kirkland & Ellis LLP
  8. Latham & Watkins LLP
  9. McDermott Will & Emery
  10. Milbank LLP
  11. Morgan, Lewis & Bockius LLP
  12. Morrison & Foerster LLP
  13. Perkins Coie
  14. Reed Smith
  15. Ropes & Gray LLP
  16. Sidley Austin LLP
  17. Simpson Thacher & Bartlett LLP
  18. Skadden, Arps, Slate, Meagher & Flom LLP
  19. White & Case LLP
  20. WilmerHale

Covington security clearance order

Perkins Coie blackball order

Perkins Coie Fact Sheet

Paul Weiss blackball order

Paul Weiss Fact Sheet

Weaponization

Hunter Biden laptop order

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Democrats Have to Stop Making Political Decisions with an Eye Towards 2026

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I’ve been out of pocket as events moved towards today’s cloture vote on the dogshit continuing resolution Republicans have written. It’s not yet clear whether seven Democrats (in addition to John Fetterman) will join Chuck Schumer — who has said he’ll vote for cloture — in helping Republicans pass it, or whether a Democrat will buy some time.

It’s clear that Schumer’s excuse only emphasizes that there are no good options. He says if there’s a shutdown, Republicans will only reopen those parts of government they want. In the face of the shuttering of USAID and dismantlement of Department of Education, that seems like a futile worry.

Among the best arguments I’ve seen against a shutdown, laid out but dropped here by Josh Marshall, is that a shutdown would provide Trump a way to halt legal proceedings by deeming those lawyers non-essential.

I was told yesterday that a major driver for Dems was the fear that a shutdown would slow down or stop the various court cases against DOGE. Honestly, that sounded so stupid to me that I was skeptical. But this afternoon I heard it from other key directions. I don’t know if it’s the biggest driver but just on the basis of what I heard I get a sense that it’s a major one. That seems so wrongheaded, so lawyer-brained, that when I got the final piece of the puzzle in front of me and realized this was a real thing, it was hard for me to even process.

Schumer described it this way in his speech yesterday:

Justice, and the courts, extremely troubling, I believe. A shutdown could stall Federal court cases, one of the best redoubts against Trump’s lawlessness, and could require a furlough of critical staff at the courts, denying victims and defendants alike their day in court, dragging out appeals and clogging the justice system for months and even years.

I don’t think this is lawyer-brained at all. Trump could simply call the lawyers engaged in these suits non-essential, stalling legal challenges in their current status, and then finding new test cases to establish a precedent while judges were stymied.

In both Phoenix, where a reduction in force affected all the people running the courthouse, and in the Perkins Coie lawsuit, where a hearing the other day reviewed all the Executive Branch personnel, from Marshals to GSA, who keep the courthouse running, the Executive’s ability to limit the Judiciary via manipulation of facilities and staff has already become a live issue. Here’s how Beryl Howell described the way in which Trump’s attempt to exclude Perkins Coie from federal buildings could be enforced via Executive branch personnel.

THE COURT: I just want to make sure because we, in the judiciary — we’re the third branch. We are not the executive branch. We are not subject to this guidance. But our landlord, and all of the federal courthouses around the country is GSA —

MR. BUTSWINKAS: GSA.

THE COURT: — General Services Administration. And the people who do the security at our front doors, all across the country in federal courthouses, are DOJ-component employees from the U.S. Marshals Service or court security officers. So they are all executive branch employees.

Meanwhile the court cases are making progress. Just this week, we’ve had two judges order reinstatement of all the people fired, grant FOIA status to DOGE, and grant discovery to Democratic Attorneys General (plus in one of the two reinstatement cases, Judge Alsup ordered a deposition from an OPM person involved in the firing). As of this week, DOGE now has to answer for its actions in the courts.

Imagine, for example, if a shutdown made it easier for DHS to keep Mahmoud Khalil in Louisiana for the duration of a shutdown, even if they simply said moving him back to SDNY (or New Jersey) is not a priority. There are other cases where the government is being ordered to pay back payments; a shutdown would make such recourse unavailable to anyone who has not yet sued. In the financial clawback cases (where EPA and FEMA seized funds already awarded), a shutdown would give the FBI time to try to frame the case against plaintiffs they’re pursuing, while the plaintiffs get no protection in the meantime. A key flaw was revealed in the lawsuit against Perkins Coie in the hearing the other day (which I’ll return to); if given the time, I would expect Trump to try the same trick against another law firm, fixing that flaw, in an attempt to eliminate any anti-Trump legal teams in the country.

So the concern that a shutdown would eliminate one of two sources of power is real.

I’m agnostic about whether a shutdown brings more advantage than risks.

One thing I am absolutely certain of, however, is that Democrats on both sides of this debate are framing it in terms of 2026. Those justifiably furious at Chuck Schumer are thinking in terms of primaries against any Senator who supports cloture. They’re demanding a filibuster so that elected Democrats, as Democrats, be seen wielding some power, so the party doesn’t look feckless to potential voters. Those afraid of a shutdown are discussing electoral consequences in 2026. Polls are measuring who would be blamed in the polls.

This mindset has plagued both sides of Democratic debates for two months, with disastrous consequences.

Democracy will be preserved or lost in the next three months. And democracy will be won or lost via a nonpartisan political fight over whether enough Americans want to preserve their way of life to fight back, in a coalition that includes far more than Democrats. You win this fight by treating Trump and Elon as the villain, not by making any one Democrat a hero (or worse still, squandering week after week targeting Democratic leaders while letting Elon go ignored).

And Democrats, on both sides of this fight, are not fighting that fight. I’ve seen none of the most powerful voices — not AOC, not Bernie, not Jasmine Crockett, not Tim Walz, not Pete Buttigieg — put out a video talking about the fight over impoundment, about the stakes of having elected representatives of both parties fight for funding for their own constituents.

Democrats who want a shutdown have done none of the messaging to those already hurt by Trump’s power grab work to make it a short term political win, to explain the tie between right wing capitulation to Trump and services shutting down. Instead, they’ve been fighting among themselves, mobilizing politically active Democrats.

I get the anger with Schumer — though I do think his concerns about the courts need to be taken very seriously.

But until Democrats stop thinking in terms of their own leadership in Congress but instead think exclusively about winning the political fight with people being hurt, not as Democrats, but as people opposed to fascism, they’re going to be looking for power in the wrong places.

Update: Someone on Bluesky defending AOC, arguing that this appearance from her on CNN amounted to the explanation about impoundment I said is missing. It’s a great appearance, and makes the anti-CR case superbly. But I don’t think it gets through the jargon about how government is funded or why. Plus, it’s not viral!

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Secret Documents! The Ten Month Privilege Fight Whingers Claim Didn’t Happen

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As always happens when people who don’t bother to check the public record get afraid, folks are complaining about Merrick Garland again, both that they didn’t notice the number of times Garland explained publicly that back in June 2021 DOJ had set up a special Election Task Force to prepare for this moment, and to complain that (they say) Garland hasn’t charged Donald Trump.

I was working on a timeline already when Politico’s two year effort to get the DC District Court to unseal grand jury proceedings bore fruit yesterday. Kyle Cheney has a story describing how the documents he liberated show both Beryl Howell and her successor as Chief Judge, James Boasberg, kept swatting back at Trump’s efforts to delay precisely because of the upcoming election.

More than 18 months ago, as Donald Trump sought to delay several high-profile witness’ testimony to a grand jury investigating his effort to subvert the 2020 election, Washington’s top federal district judge sensed a potential calamity.

“The special counsel’s investigation is moving quickly. There is an imperative that it moves quickly particularly so as not to interfere with the 2024 election cycle,” Chief Judge James Boasberg said on April 3, 2023, according to a newly unsealed transcript of the secret proceeding. “So when the former President’s pleading says that there will be a nominal impact from a delay, I think that is a vast understatement, that there would be a serious and deleterious impact from a delay.”

Boasberg’s warning in the early stages of special counsel Jack Smith’s investigation of the former president now rings prescient. A series of delays engineered by Trump, most notably an eight-month freeze while the Supreme Court considered his claim to be immune from the charges altogether, have caused the criminal proceedings to collide with the 2024 election cycle — and made it impossible for Trump to stand trial on the most serious charges he faces before Election Day.

The documents also confirm dates that, just yesterday, anti-Garland whingers claimed I made up. The fight over executive privilege started with a June 15, 2022 subpoena (probably to Greg Jacob and Marc Short) and continued through the next April, when Jack Smith — having come on after the precedents on executive privilege had already been set — got Mike Pence’s testimony on April 27.

Here’s the timeline mapped by the documents Politico liberated:

June 15, 2022: Subpoena to two officials (possibly Jacob and Short)

September 28, 2022: Order and opinion requiring testimony from two officials (possibly Jacob and Short)

October 6, 2022: Order and opinion denying stay of decision

November 19, 2022: Order and opinion requiring testimony (probably the two Pats, Cipollone and Philbin)

December 18, 2022: Order and opinion denying stay

January 23, 2022: Order and opinion extending appeal

December 9, 2022: Order and opinion requiring testimony (possibly Eric Hershmann, given description of his emails demanding written instructions)

January 10, 2023: Order and opinion denying stay

March 15, 2023: Order and opinion requiring testimony (this is the omnibus order covering eight people — see redacted list on page 2 — including Mark Meadows, Stephen Miller, and Dan Scavino)

March 25, 2023: Opinion requiring testimony, probably involving Mike Pence

April 3, 2023: Transcript of hearing, probably involving Mike Pence

April 10, 2023: Transcript of hearing, probably involving Mike Pence

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Ashraf Shaaban Listed as Global Legal Head of National Bank of Egypt

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As noted here, according to a newly unsealed passage of Beryl Howell’s September 19, 2018 opinion denying an Egyptian Bank’s motion to quash a subpoena in an investigation into a suspected $10M payment to Donald Trump, Ashraf Shaaban is the Group Legal Counsel for the Egyptian-owned bank in question.

According to the American Chamber of Commerce in Egypt, Shaaban is the Global Legal Head of the National Bank of Egypt.

The website for Mona Zulficar’s lawfirm also includes this complimentary comment from Shaaban:

“They have a very solid reputation in the Egyptian market and they provide world class quality legal services to their clients and have at the same time very strong business orientation in handling such legal matters.” – Mr. Ashraf Shaaban – Group General Counsel – National Bank of Egypt

That suggests that the bank suspected of funneling $10 million to Trump at a key point in the 2016 election is the National Bank of Egypt.

I think I’ll reup this annotated rant Trump went on when Bob Menendez was indicted for allegedly taking bribes from Egypt.

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An Egyptian Bank Claimed Details of a Suspected $10 Million Payment to Trump Might be in China

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Back on September 19, 2018, then DC Chief Judge Beryl Howell denied a motion brought by an Egyptian bank to quash a subpoena for information on a suspected $10 million payment made to then-candidate Trump in fall 2016. That set off litigation that continued, at the District, Circuit, and Supreme Courts, for at least nine months.

As CNN described in 2020, not long after the investigation got shut down under Bill Barr, investigators had been trying to see whether Egypt (or some entity for which Egypt served as go-between) provided the money that Trump spent on his campaign weeks before the election.

For more than three years, federal prosecutors investigated whether money flowing through an Egyptian state-owned bank could have backed millions of dollars Donald Trump donated to his own campaign days before he won the 2016 election, multiple sources familiar with the investigation told CNN.

The investigation, which both predated and outlasted special counsel Robert Mueller’s probe, examined whether there was an illegal foreign campaign contribution. It represents one of the most prolonged efforts by federal investigators to understand the President’s foreign financial ties, and became a significant but hidden part of the special counsel’s pursuits.

The investigation was kept so secret that at one point investigators locked down an entire floor of a federal courthouse in Washington, DC, so Mueller’s team could fight for the Egyptian bank’s records in closed-door court proceedings following a grand jury subpoena. The probe, which closed this summer with no charges filed, has never before been described publicly.

Prosecutors suspected there could be a link between the Egyptian bank and Trump’s campaign contribution, according to several of the sources, but they could never prove a connection.

It took months of legal fight after Judge Howell denied that motion to quash before the Egyptian bank in question complied, and once they got subpoena returns, prosecutors repeatedly complained that the bank was still withholding information, which led prosecutors to reopen the investigation with a new grand jury.

That much we know from documentation unsealed back in 2019 (part one, part two, part three), in response to a Reporters Committee for Freedom of the Press request for unsealing.

On August 17, 2023, while she was still Chief Judge, Beryl Howell ordered the government to post newly unsealed sets of some of the orders she issued during the litigation. On Thursday, Chief Judge Boasberg ordered that newly redacted set of opinions to be released. While Howell released six opinions in June 2019 along with the other materials from the case — with redactions done digitally, thereby hiding the length of redactions — just three new versions of her orders got released last week:

These may be limited to orders incorporated as appendices in prior appeals, which might also explain why the first two appear twice in the newly-released materials.

Much of the newly unsealed material pertains to a fight over how much Alston & Bird, the law firm representing the Egyptian bank, could say about the litigation publicly. Among other things, prosecutors under Robert Mueller objected to their own names appearing publicly, out of a desire to tie this litigation to the narrow scope of Mueller’s investigation into interference in 2016.

One thing made clearer by a redaction in that January 2019 opinion on public comments is that the DC Circuit considered what public comments the two sides could make, in addition to SCOTUS, as part of its denial of cert.

It’s possible that the DC Circuit has weighed in, secretly. Among the details newly unsealed in the original opinion are the names of two of the bank’s other lawyers: Ashraf Shaaban (who appears to be or have been in-house counsel) and Mona Zulficar (who runs a Cairo corporate law firm). Those lawyers were named in conjunction with declarations they submitted arguing some part of the claim that Egyptian Anti-Money Laundering law would prohibit compliance with the subpoena as would unspecified law in a third country, described as Country B. 

Howell described that Alston & Bird are relying on,

conclusory declarations by [redacted] own Country A in-house and retained counsel, which themselves cite no legal authority on this question of [redaction] See Decl. of Ashraf Shaaban,, Mov’s Group Legal Counsel (“Shaaban Decl.”)¶7, ECF No. 3-6; Suppl. Decl. of Mona Zulficar, “Suppl. Zulficar Decl.”)¶ 4, ECF No. 12. The Court gives these declarations little weight. [bold newly unsealed, compare this passage with this one]

So if we can figure out who Shaaban works or worked for to ID the bank.

It’s the unspecific third country, Country B, that is the most interesting new disclosure, however.

The newly unsealed passages do not identify which country, described as Country A and which CNN identified as Egypt, owns this bank. But they do show that the bank or its lawyers wanted to share the subpoena with personnel in Cairo.

The newly unsealed passages do identify which third country’s laws, unspecified laws, might prohibit lawyers from searching for responsive documents in that country: China.

In other words, a bank owned by Egypt said it couldn’t comply with a subpoena seeking information on a suspected payment to Trump during the 2016 election, in part, because China’s laws would prevent that.

Update: Ashraf Shaaban works for the National Bank of Egypt.

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Bankrupt!

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Rudy Giuliani admits he is bankrupt.

It’s unclear, given the Chapter 11 bankruptcy petition he filed today, whether it was his lying to cheat or his “scheme” to avoid paying taxes that was the final straw. He owes just shy of $1 million, to NY State and IRS, for two years of taxes.

Republicans have been quite clear that they believe that kind of tax negligence merits immediate incarceration — at least it does in Hunter Biden’s case.

In addition to the $148M judgement he owes Ruby Freeman and Shaye Moss, he also owes his co-defendant in the Hunter Biden lawsuit, Robert Costello, over $1.3M for past representation.

Ultimately, this is expected and a direct response to Beryl Howell’s order that he pay up immediately.

 

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Rudy’s Seized Devices Were More Useful for Investigating January 6 than Marie Yovanovitch’s Firing

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On April 28, 2021, the FBI seized up to 18 devices from Rudy Giuliani. On Tuesday, DOJ unsealed the affidavit behind that seizure.

The affidavit, read in conjunction with Barbara Jones’ Special Master reports, Rudy’s privilege log from the Ruby Freeman lawsuit, and a filing he submitted in that suit provide abundant evidence that the devices FBI seized on April 28, 2021 were more useful for investigating January 6 than any suspected FARA violations involved in the firing of Marie Yovanovitch.

And this goes well beyond Robert Costello’s claim that a number of the devices seized from Rudy were corrupted.

The affidavit, as written, was narrow: it only covered FARA violations tied to the role of Yuriy Lutsenko and other Ukranians in the firing of Ambassador Yovanovitch in spring 2019. While there is evidence cited in the affidavit from a broad period of time (for example, describing Rudy’s public admissions that he did certain things in early 2019 later that year), the last overt act described in the affidavit is of someone — probably Victoria Toensing — texting Rudy on May 9, 2019, complaining that people were asking about whether she had registered under FARA and denying that she had a client.

Remarkably, then, the affidavit asked for — and Judge Paul Oetken authorized — the authority to seize “any and all” devices at Rudy’s office and home almost two years after that last overt act.

Judge Oetken authorized that search and seizure even though one of the phones described in the affidavit — an Apple iPhone X that Rudy first started using on January 20, 2021 — could not possibly have been used in the suspected crime described in the affidavit. And three more of the devices described in it, including another iPhone, were only put in use later in 2019.

I’ve long argued that by September 2021, DOJ at least contemplated obtaining other warrants to access that content (because SDNY successfully argued to do the privilege review on all content that post-dated January 1, 2018). But given the scope of those devices, it looks likely that there was at least one other affidavit presented to Oetken in April 2021, one that would justify seizing those later devices.

This table shows (on the vertical axis) the devices that Rudy says were seized and (on the horizontal axis) the devices that FBI thought they’d find.

While Rudy’s own description of these devices (including the model number of the MacBook used in planning January 6, here listed as A22251) is as unreliable as everything else about him, the FBI didn’t find the two iPhone Xes — one used between January 8, 2018 and August 13, 2019, the other used between April 5 2018 and August 27, 2019, both marked in yellow above — that would have been Rudy’s primary phones during the events described in the affidavit.

Just three devices — two iPads and one iPhone 11 — clearly match the description of what the FBI expected to find.

All of them were, according to Rudy’s description (marked in the vertical “January 6 column”), among those used in planning January 6.

Whichever iPhone 11 they did find is almost certainly device that Special Master Jones labeled as device 1B05, the privilege review of which she described this way:

I next assigned for review the chats and messages that post-dated January 1, 2018 on Device 1B05, which is a cell phone. There were originally 25,481 such items, which later increased to 25,629 after a technical issue involving document attachments was identified. An initial release of non-designated items was made to the Government’s investigative team on November 11, 2021.1

Of the total documents assigned for review, Mr. Giuliani designated 96 items as privileged and/or highly personal. Of those 96 designated items, I agreed that 40 were privileged, Mr. Giuliani’s counsel withdrew the privilege designation over 19, and I found that 37 were not privileged. I shared these determinations with Mr. Giuliani’s counsel, and they indicated that they would not challenge my determination that the 37 items are not privileged. The 40 privileged documents have been withheld from the Government’s investigative team and the remaining 56 were released on January 19, 2022.

1 Additional non-designated items were released on January 19, 2022.

Those 25,000 chats were easily the most voluminous content turned over from any one device to the FBI. Of all the chats that Rudy attempted to withhold from that phone, he ultimately only succeeded in withholding 40 items. 40 chats or texts out of 25,000 total.

262 items in Rudy’s privilege log come from that phone. Another 127 come from a device, 1B09, also used to text about January 6 (including with Mark Meadows), which — given the date scope — must have been among the first devices Jones reviewed. That’s one possible source of a Ken Chesebro document included in the indictment but not identified in the January 6 Report.

And while Rudy withheld those documents from Ruby Freeman, since Jones only permitted Rudy to withhold 43 items total from DOJ, those must have been deemed non-privileged in the Special Master review. (I’ve noted before that there are easily 40 items that clearly relate to Rudy’s own lawyers.)

They were all turned over to DOJ, for use with whatever investigative teams had obtained warrants to access them, no later than January 21, 2022.

This is one thing Rudy accomplished by defaulting on discovery: Withholding from Ruby Freeman, and therefore from a public trial that would precede Republican primaries, documents that were turned over to DOJ in January 2022.

By April 2021 when — using warrants approved on Lisa Monaco’s first day on the job, but nevertheless a year after Bill Barr started obstructing this investigation — the FBI came looking for devices involved in Rudy’s suspected FARA violations tied to getting Marie Yovanovitch, they didn’t find the devices he would have been using at the time.

They did, however, find three devices on which Rudy planned January 6. And because of the way DOJ did the privilege review on those devices, those records would have been made available to any investigators with a lawful warrant no later than January 21, 2022.

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