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Beryl Howell Takes an Early Swipe at the Trump Made-Me-Do-It Defense and Other Detention Standards

When DC Chief Judge Beryl Howell ordered Richard Barnett detained pending trial, the only record of her judgement — beyond her strong language at the detention hearing — was the order itself, including a paragraph about Barnett’s, “brazen conduct.” When she ordered Rachel Powell released to home detention, she released no opinion.

But when she ordered Proud Boy William Chrestman detained until trial, she wrote a 32-page opinion explaining her thinking. With regards to Chrestman — who threatened a cop, carried an axe-handle as weapon, and organized a cell of people who worked together to prevent police from expelling insurrectionists — Howell judged that his pre-trial detention wasn’t a close call: he poses a danger to the nation.

Defendant’s conduct on January 6 and blatant disregard for the law clearly show that he is a serious danger to the community and the nation, and that no condition or combination of conditions can be imposed that will ensure his compliance with the law pending trial in this matter.

But as one after another DC District judge struggles with the difficult pre-trial detention questions and just days after Judge Amit Mehta noted that some of these legal questions will pertain to a significant number of January 6 decisions, Howell used her decision on Chrestman to address three issues that have been and will continue to be litigated by insurrectionists:

  • Standards for review of magistrate decisions from other districts
  • The distinctions between different roles in the insurrection
  • The claim that Trump ordered or sanctioned insurrection

Magistrate decisions from other districts

As she did with a number of other defendants, after a magistrate in Kansas granted Chrestman pre-trial release, Judge Howell granted an emergency request from prosecutors staying that order for another review. And in at least one case where DC judges reviewed a magistrate’s decision (Dominic Pezzola), the defendant has tried to limit the scope of the review.

In most cases, January 6 defendants will have their cases initially reviewed by a magistrate local to their homes, only to be prosecuted in the DC District.

Perhaps to establish both the primacy and the scope of these District Court orders, in her opinion Howell reviews the requirements for granting a hearing on detention (both Jessica Watkins’ and Thomas Caldwell’s attorneys had argued their charged crimes did not merit a review).

As generally pertinent to charged offenses arising out of the January 6, 2021 assault on the Capitol, a detention hearing must be held on the government’s motion when the charged offense involves:

1. “[A] crime of violence,” id. § 3142(f)(1)(A), which is defined broadly as an offense having as an element the attempted, threatened, or actual use of physical force against a person or property of another, or a felony offense that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense, id. § 3156(a)(4)(A)–(B);

2. “[A]n offense listed in section 2332b(g)(5)(B) for which a maximum term of imprisonment of 10 years or more is prescribed,” id. § 3142(f)(1)(A), which “list” includes “a violation of . . . [18 U.S.C. §] 1361 (relating to government property or contracts),” id. § 2332b(g)(5)(B)(i);4

3. “[A]ny felony that is not otherwise a crime of violence that involves . . . the possession or use of a firearm or destructive device . . . or any other dangerous weapon[,]” id. § 3142(f)(1)(E);

4. “[A] serious risk that such person will flee,” id. § 3142(f)(2)(A); or

5. “[A] serious risk that such person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror,” id. § 3142(f)(2)(B).

A subset of the types of offenses requiring a detention hearing triggers a rebuttable presumption “that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed” that subset of offenses. Id. § 3142(e)(3). As pertinent to charged offenses arising out of the January 6, 2021 assault on the Capitol, that subset of offenses includes “an offense listed in section 2332b(g)(5)(B) of title 18, United States Code, for which a maximum term of imprisonment of 10 years or more is prescribed.” Id. § 3142(e)(3)(C).

4 18 U.S.C. § 2332b(g)(5) provides a definition for “the term ‘Federal crime of terrorism,’” when the offense is “a violation of” an enumerated list of Federal offenses set out in § 2332b(g)(5)(i)–(iv) and the offense “is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct,” id. § 2332b(g)(5)(A). While individuals involved in the January 6, 2021 assault on the Capitol expressed publicly the intent to disrupt a government function in certifying the results of the 2020 Presidential Election and to coerce such disruption by breaching the Capitol, to date, to the knowledge of this Judge, no person charged in connection with the assault on the Capitol has been charged with a “Federal crime of terrorism,” under chapter 113B of title 18, United States Code, but only with separate, predicate enumerated offenses, such as violation of 18 U.S.C. § 1361 (relating to government property or contracts).

Howell then reaffirms that when conducting such reviews, District Court judges conduct a de novo review (Dominic Pezzola’s attorney, for example, asked the District judge for a more limited review).

[B]oth the BRA and the Federal Magistrates Act, 28 U.S.C. § 636, support the conclusion, reached by every circuit to have considered the question, that a district court reviews a magistrate judge’s release or detention order de novo.

[snip]

First, the BRA vests the authority to review and ultimately to “determine[]” a motion for review of a pretrial release or detention order in a “judge of a court having original jurisdiction over the offense.” 18 U.S.C. § 3145. Even when reviewing an order issued under § 3142, then, the district court exercises its original jurisdiction over the case as a whole, not appellate jurisdiction over the magistrate judge’s release or detention order.

Thus in the Chrestman case and in the hundred or so detention motions that will come, Howell lays out, the DC District judge will — if the government requests a review under the available offenses — decide the detention question.

Distinctions between different roles in the insurrection

Howell then turns to the difficult question of presiding over the detention reviews for hundreds of defendants involved in an unprecedented crime. Before assessing the question with respect to Chrestman, she addresses the question more generally:

The BRA, of course, requires a reviewing court to assess the specific conduct of each defendant, but the varying results in these cases raise the natural question, given the undeniably traumatic events of January 6, of the standard against which a particular defendant’s actions on that day should be evaluated. Before evaluating the nature and circumstances of defendant’s specific conduct, then, consideration of the differentiating factors that warrant pretrial detention of certain defendants facing criminal liability for their participation in the mob and pretrial release of others is helpful.

She lays out the kind of things judges might consider (all but one of which happen to work against Chrestman, but which provide useful guidelines for others). This analysis covers three pages, but the questions she asks (I’ve changed the order slightly) are:

  • Was the defendant charged with misdemeanor or felony offenses?
  • Did the defendant remain on the Capitol grounds or breach the building?
  • Did the defendant engage in planning before arriving at the Capitol, for example by obtaining weapons or gear?
  • Did the defendant carry or use a dangerous weapon?
  • Did the defendant coordinate with other participants before, during, or after the riot?
  • Did the defendant assume a formal or de facto leadership role?
  • Did the defendant injure or attempt to injure others?
  • Did the defendant damage or attempt to damage federal property?
  • Did the defendant threaten federal officers or law enforcement?
  • Did the defendant specifically promote the disruption of the electoral vote?

These questions aren’t surprising. Similar questions (excepting the first) seem to guide the government’s charging decisions. Still, as Howell says explicitly, they offer a “useful framework” to help contextualize each defendant’s actions.

Using these guidelines, she assesses that Chrestman’s actions pose a particularly grave threat to the country.

The nature and circumstances of defendant’s offenses evince a clear disregard for the law, concerted and deliberate efforts to undermine law enforcement, and an apparent willingness to take coordinated, pre-planned, and egregious actions to achieve his unlawful aims, all of which indicate that he poses a danger to the community. This first factor weighs heavily in favor of detention.

Without relying on the framework of terrorism (though she describes Chrestman as “terrorizing elected officials”), Howell places the danger in Chrestman’s pre-planning and coordination to undermine government.

Defenses claiming to be following Trump’s orders

As I noted, in his bid for pre-trial release, Chrestman suggested that he believed he was operating with Trump’s approval.

To prefigure how those offenses relate to the likelihood of Mr. Chrestman succeeding on pretrial release, we must start long before January 6.

It is an astounding thing to imagine storming the United States Capitol with sticks and flags and bear spray, arrayed against armed and highly trained law enforcement. Only someone who thought they had an official endorsement would even attempt such a thing. And a Proud Boy who had been paying attention would very much believe he did. They watched as their “pro-America, pro-capitalism and pro-Trump” rhetorical strategy “allowed the Proud Boys to gain entry into the Republican mainstream.”11 They watched as law enforcement attacked Black Lives Matter and anti-fascism protestors, but escorted Proud Boys and their allies to safety.12 They watched as their leader, Enrique Tarrio, was named Florida state director of Latinos for Trump.13 They watched the Trump campaign, “well aware of the organized participation of Proud Boys rallies merging into Trump events. They don’t care.”14 They watched when then-President Trump, given an opportunity to disavow the Proud Boys, instead told them to “stand back and stand by.”15 They understood that phrase as “a call to arms and preparedness. It suggests that these groups, who are eager to do violence in any case, have the implicit approval of the state.”16 Having seen enough, the Proud Boys (and many others who heard the same message)17 acted on January 6.

In the guise of addressing Chrestman’s claim that he has a viable defense, even in spite of the overwhelming evidence against him, Howell takes an early swipe at a defense many, if not most, defendants are offering: Trump invited or ordered the insurrectionists to take the illegal actions.

Howell admits she’s reviewing the particular form of the argument Chrestman presented before it has been sufficiently briefed (without also noting that one after another defendant is already trying some version of it).

This theory has not been fully briefed by the parties, and the question of former President Trump’s responsibility, legal, moral, or otherwise, for the events of January 6, 2021 is not before this Court.

Defendant presents this defense only for the limited purpose of counterbalancing the overwhelming weight of the evidence against him.

Nevertheless, Howell reviews the precedents Chrestman invokes to suggest that he might be excused for following Trump’s directions by distinguishing — first of all — between believing that a government official was describing the law accurately and, as happened here, believing that a government official could bless a “waiver of law.”

Nonetheless, in order to measure properly defendant’s potential privilege against liability against the government’s proffer, some exploration of the proposed due process defense is necessary.

Defendant invokes a novel iteration of a complete defense to criminal liability that arises when an individual criminally prosecuted for an offense reasonably relied on statements made by a government official charged with “interpreting, administering, or enforcing the law defining the offense” and those statements actively misled the individual to believe that his or her conduct was legal. United States v. Cox, 906 F.3d 1170, 1191 (10th Cir. 2018) (internal quotation marks and citations omitted) (outlining the elements of the defense). “The defense . . . is based on fundamental fairness concerns of the Due Process Clause,” United States v. Spires, 79 F.3d 464, 466 (5th Cir. 1996), and thus relies on an assessment of whether the challenged prosecution “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Patterson v. New York, 432 U.S. 197, 202 (1977) (internal quotation marks and citation omitted), because of the lack of notice and fairness to the charged defendant. The Supreme Court recognized this defense, sometimes called “entrapment by estoppel,” in three cases, Raley v. Ohio, 360 U.S. 423 (1959), Cox v. Louisiana, 379 U.S. 559 (1965), and United States v. Pennsylvania Industrial Chemical Corp. (“PICCO”), 411 U.S. 655 (1973). Examination of these decisions shows first, that entrapment by estoppel is a narrowly tailored defense, available in very limited circumstances, and second, that this defense does not excuse defendant’s conduct in the instant case.

[snip]

[T]his trilogy of cases gives rise to an entrapment by estoppel defense under the Due Process Clause. That defense, however, is far more restricted than the capacious interpretation suggested by defendant, that “[i]f a federal official directs or permits a citizen to perform an act, the federal government cannot punish that act under the Due Process Clause.” Def.’s Mem. at 7. The few courts of appeals decisions to have addressed the reach of this trilogy of cases beyond their facts have distilled the limitations inherent in the facts of Raley, Cox, and PICCO into a fairly restrictive definition of the entrapment by estoppel defense that sets a high bar for defendants seeking to invoke it. Thus, “[t]o win an entrapment-by-estoppel claim, a defendant criminally prosecuted for an offense must prove (1) that a government agent actively misled him about the state of the law defining the offense; (2) that the government agent was responsible for interpreting, administering, or enforcing the law defining the offense; (3) that the defendant actually relied on the agent’s misleading pronouncement in committing the offense; and (4) that the defendant’s reliance was reasonable in light of the identity of the agent, the point of law misrepresented, and the substance of the misrepresentation.” Cox, 906 F.3d at 1191 (internal quotation marks and citations omitted).

The Court need not dally over the particulars of the defense to observe that, as applied generally to charged offenses arising out of the January 6, 2021 assault on the Capitol, an entrapment by estoppel defense is likely to fail. Central to Raley, Cox, and PICCO is the fact that the government actors in question provided relatively narrow misstatements of the law that bore directly on a defendant’s specific conduct. Each case involved either a misunderstanding of the controlling law or an effort by a government actor to answer to complex or ambiguous legal questions defining the scope of prohibited conduct under a given statute. Though the impact of the misrepresentations in these cases was ultimately to “forgive a breach of the criminal laws,” Cox, 379 U.S. at 588 (Clark, J., concurring in part and dissenting in part), none of the statements made by these actors implicated the potential “waiver of law,” or indeed, any intention to encourage the defendants to circumvent the law, that the Cox majority suggested would fall beyond the reach of the entrapment by estoppel defense, id. at 569. Moreover, in all three cases, the government actors’ statements were made in the specific exercise of the powers lawfully entrusted to them, of examining witnesses at Commission hearings, monitoring the location of demonstrations, and issuing technical regulations under a particular statute, respectively.

In contrast, January 6 defendants asserting the entrapment by estoppel defense could not argue that they were at all uncertain as to whether their conduct ran afoul of the criminal law, given the obvious police barricades, police lines, and police orders restricting entry at the Capitol. Rather, they would contend, as defendant does here, that “[t]he former President gave th[e] permission and privilege to the assembled mob on January 6” to violate the law. Def.’s Mem. at 11. The defense would not be premised, as it was in Raley, Cox, and PICCO, on a defendant’s confusion about the state of the law and a government official’s clarifying, if inaccurate, representations. It would instead rely on the premise that a defendant, though aware that his intended conduct was illegal, acted under the belief President Trump had waived the entire corpus of criminal law as it applied to the mob. [my emphasis]

Moreover, the instructions Trump purportedly gave cannot be deemed part of his job. Howell argues that under both the Take Care Clause and the Constitution, Trump cannot sanction illegal or unconstitutional acts.

No American President holds the power to sanction unlawful actions because this would make a farce of the rule of law. Just as the Supreme Court made clear in Cox that no Chief of Police could sanction “murder[] or robbery,” 379 U.S. at 569, notwithstanding this position of authority, no President may unilaterally abrogate criminal laws duly enacted by Congress as they apply to a subgroup of his most vehement supporters. Accepting that premise, even for the limited purpose of immunizing defendant and others similarly situated from criminal liability, would require this Court to accept that the President may prospectively shield whomever he pleases from prosecution simply by advising them that their conduct is lawful, in dereliction of his constitutional obligation to “take Care that the Laws be faithfully executed.”

[snip]

[A] President cannot, within the confines of his constitutional authority, prevent the constitutionally mandated certification of the results of a Presidential Election or encourage others to do so on his behalf, nor can he direct an assault on the coequal Legislative branch of government. Were a President to attempt to condone such conduct, he would act ultra vires and thus without the force of his constitutional authority.

This gets close to the argument I keep making, that a key step Trump took that day (and riled up the mob when it didn’t work) was to give another Constitutional officer, Mike Pence, an unconstitutional order. And I was surprised that Howell didn’t mention pardons, a means by which Trump, at least, has forgiven the illegal obstruction of justice done for his behalf. Similarly, I would expect more focus on the separation of powers.

Still, it’s a framework for responding to what already is a sea of defendants claiming they can’t be held accountable for their crimes because Donald Trump invited or ordered them to commit the crimes. And does so within a broader framework that may provide DC District judges some way to approach the detention challenges with some measure of consistency.

A Tale of Two Zip-Tie Guys: Criminal Protestor or Armed Insurrectionist?

There was a fair amount of disbelief last week when Eric Munchel, better known as Zip-Tie Guy, was given bail by a magistrate judge in Tennessee. But as I noted, the evidence as presented to Judge Chip Frensley did not allege preplanning and did not show Munchel engaged in violence. As laid out in the detention memo, Munchel owns an arsenal of guns, but they are all legal. As such, Frensley’s decision was probably correct.

As I noted in an update to that post, however, the evidence prosecutors presented to obtain the emergency stay of Munchel’s release did include an act of violence, targeted at Bloomberg reporter William Turton, who filmed Munchel in the Grand Hyatt after the riot.

On the evening of January 6, 2021, after the insurrection, an individual posted a video of the Grand Hyatt hotel lobby on Twitter. The person then posted a message that read: “After I took this video, several Trump supporters harassed me and tried to follow me to my room. One accused me of being ‘antifa.’3 Hotel security intervened and moved me to new room. What a weird day.” See https://twitter.com/WilliamTurton/status/1346980284252745729 (Last accessed on January 23, 2021). The person added: “The Trump supporters demanded that I delete the video. One woman flashed her taser at me, and threatened to mace me.” See https://twitter.com/WilliamTurton/status/1347024856416714752 (last viewed January 23, 2021). Two days later, on January 8, based on another video from the Grand Hyatt posted to social media, the person identified the defendant as “one of the people in the hotel lobby who demanded I delete the video, put his hands on me, and screamed at me . . . .” See https://twitter.com/WilliamTurton/status/1347699125408641024 (last viewed January 23, 2021); https://twitter.com/WilliamTurton/status/1347699345345417217 (last viewed January 23, 2021). Evidence of this encounter was not presented at the preliminary and detention hearing in the Middle District of Tennessee.

There’s a more important difference between the detention motion submitted in Tennessee and the one submitted in DC, beyond the fact that one was presented in a conservative state and the other was presented to a Democratically appointed judge in the city targeted in the insurrection.

The initial detention motion describes Munchel’s actions as those of a protestor who committed crimes in the process of protesting, while threatening violence.

The United States of America, by and through its attorney, the United States Attorney for the Middle District of Tennessee, respectfully files this memorandum in support of pre-trial detention. The defendant, Eric MUNCHEL, traveled to Washington, D.C. to attend the “Stop the Steal” rally on or about January 6, 2021, where he intended to protest the outcome of the 2020 Presidential election. MUNCHEL was prepared for conflict: as he told a reporter, he was ready to “rise up” and “fight if necessary.” After the rally concluded, MUNCHEL—who was dressed in tactical gear and carried a taser on his hip, and stashed other “weapons” in a tactical bag outside the Capitol—unlawfully entered the U.S. Capitol along with a mob of rioters who smashed windows and broke through doors. MUNCHEL gleefully acquired several sets of plastic handcuffs as he walked through the Capitol and entered the Senate chamber, where only moments earlier the Vice President of the United States was certifying the results of the 2020 Presidential election. In the Senate gallery, MUNCHEL stood with a crowd whose members shouted “Treason!” and lamented the disappearance of lawmakers from the chamber moments earlier. MUNCHEL’s conduct here was dangerous and extremely serious. This Court should adopt the recommendation of the Pretrial Services Office and detain MUNCHEL pending trial. [my emphasis]

The first paragraphs of the emergency motion, by contrast, describe him as one of a concerted pack of insurgents who successfully used terror to halt constitutionally mandated proceedings.

Armed with a taser and clad for battle in fatigues, a tactical vest, combat boots, gloves, and a gaiter that revealed only his eyes, the defendant, Eric Munchel, stormed the United States Capitol on January 6, 2021. Upon penetrating the building through a door breached by insurgents, the defendant grabbed a handful of Capitol Police flexicuffs and exclaimed: “Zip ties. I need to get me some of them mother—-s!” Then, with his co-conspirator, Lisa Eisenhart—who also wore a tactical vest and took flexicuffs—the defendant joined a group of insurgents searching for Members of Congress. Surrounded by insurgents exhorting veiled threats such as “Treason!”, “Anybody home?”, “They’re cowards!”, and “Are you afraid?”, the defendant infiltrated the Senate chamber—only minutes after the Senate body, including the Vice President of the United States, had been evacuated. The invasion halted the proceedings of a Joint Session of Congress, which had convened to certify the Electoral College vote as required by the Twelfth Amendment. [my emphasis]

A later paragraph discounts the claim that Munchel intended to do nothing more than protest.

First, the nature and circumstances of the offense involve fear, intimidation, and violence— directed at law enforcement, elected public officials, and the entire country. The defendant can make no serious claim that he went to the Capitol on January 6 intending to engage in peaceful protest or civil disobedience. Instead, the evidence supports the conclusion that he intended to contribute to chaos, obstruct the Electoral College certification, and sow fear. This is illustrated by the defendant’s preparation before reaching the Capitol and expressly stated intent: the defendant dressed in combat attire from head to toe; armed himself with a taser (and, appearing from his own cell phone video and audio recording, a more dangerous weapon); and told a reporter that his intent in going to the Capitol was “a kind of flexing of muscles” and that he was ready to “fight if necessary.” Once at the Capitol, the defendant’s conduct was consistent with that expressly stated intent: the defendant helped and encouraged other insurgents to ascend a wall to access the Capitol; exclaimed that he was “F—ing ready to f–k s–t up”; affirmed cries of “Treason” by other insurgents; responded to the chaos by exclaiming, “I guess they thought we were playing!”; stormed into the Capitol through a breached door; grabbed Capitol Police plastic flexicuffs, comprehending that they are instruments of restraint and kidnapping; marched throughout the Capitol searching for Members of Congress who he believed had committed “Treason”; and infiltrated the Senate chamber. The nature and circumstances of the alleged offenses all indicate forethought and specific intent to obstruct a congressional proceeding through fear, intimidation, and, if necessary, violence. These threads—planning, forethought, intent—are all indicative of a capacity and willingness to repeat the offense and pose a clear threat to community safety. As the defendant himself told The Times reporter, “[t]he point of getting inside the building [was] to show them that we can, and we will” (emphasis added).

As with her son, the government told two different stories about the actions of Munchel’s mother, Lisa Eisenhart, who like him was first granted bail then detained on an emergency motion.

The introductory paragraph of her TN detention motion mentions her boast that she was willing to die rather than live under oppression. But even where it reviews her language in more depth later in the filing, it portrays as it as mere, “disillusionment with the outcome of the 2020 Presidential election,” not a willingness to overthrow the Constitutional order because of it.

The defendant, Lisa EISENHART, traveled to Washington, D.C. to attend the “Stop the Steal” rally on or about January 6, 2021, where she intended to protest the outcome of the 2020 Presidential election. EISENHART was prepared for conflict: as she told a reporter, she would rather “die” and “fight” than “live under oppression.”

[snip]

EISENHART also made statements evincing an intent to engage in violent conduct, and even sacrificing her own life, because of her disillusionment with the outcome of the 2020 Presidential election. [my emphasis]

And as the emergency motion for her son described his own act of violence, Eisenhart’s emergency detention motion describes her approval of the violence around her. (Munchel’s federal defender got prosecutors to admit at his bail hearing that his mom voiced more overt support for violence than he espoused; he even pointedly called out, “Don’t break shit,” … “No vandalizing shit”.)

Down the road, prosecutors will describe these statements from her as one after another agreement with others to engage in violent insurrection.

The nature and circumstances of the offense involve fear, intimidation, and violence— directed at law enforcement, elected public officials, and the entire country. The defendant can make no serious claim that she went to the Capitol on January 6 intending to engage in peaceful protest or civil disobedience. Instead, the evidence supports the conclusion that she intended to contribute to chaos, obstruct the Electoral College certification, and sow fear. Specifically, Eisenhart, dressed for combat in a tactical or bulletproof vest, stormed the Capitol building with other insurgents and:

  • carried dangerous “weapons” onto Capitol grounds and stashed them before storming the Capitol building, because “We’re going straight to federal prison if we go in there with weapons”;
  • encouraged insurgents to climb a Capitol wall and storm inside, exhorting: “Yeah, go up in there. You can go up in there now”;
  • encouraged Munchel to go inside the Capitol despite knowing that Capitol Police were trying to keep insurgents out—including by using tear gas (“we’re going in”; “the [tear] gas isn’t bad”);
  • cheered on another insurgent who she understood to have “punched two of them in the face”—likely a reference to Capitol Police;
  • celebrated as her “best day” an assertion by another insurgent that Members of Congress had been tear gassed (“That is [unintelligible] my best day, to know they got tear gassed.”);
  • grabbed Capitol Police flexicuffs from inside the Capitol and searched for Members of Congress alongside other insurgents, together shouting threatening chants of: “Anybody home?”; “They went into the tunnels”; “Where’d you go?”; “They’re cowards!”; “Are you afraid?”; and “Treason!”; and
  • cognizant of the severity of her and Munchel’s crimes, advised before leaving the Capitol: “Don’t carry the zip ties, just get ‘em out of their hand, out of [unintelligible] get ‘em out of our hands.”

The offense circumstances illustrate a profound disrespect for the rule of law and law enforcement, indicating that the defendant’s unwillingness and incapacity to respect court-imposed conditions and demonstrating that no release condition will reasonably assure the community’s safety.

Both emergency motions for detention include a paragraph describing the danger mother and son pose as an unprecedented threat to democracy.

Finally, as we asserted in the Munchel appeal, it is difficult to fathom a more serious danger to the community—to the District of Columbia, to the country, or to the fabric of American Democracy—than the one posed by armed insurrectionists, including the defendant and Munchel, who joined in the occupation of the United States Capitol. Every person who was present without authority in the Capitol on January 6 contributed to the chaos of that day and the danger posed to law enforcement, the Vice President, Members of Congress, and the peaceful transfer of power. The defendant’s specific conduct aggravated the chaos and danger. It was designed to intimidate Members of Congress and instigate fear across the country. The defendant’s active participation in a violent insurgency on the Capitol designed to undermine the democratic process poses a serious and ongoing danger to the community that no release condition can reasonably assuage. As co-conspirator Munchel told The Times reporter: “[t]he point of getting inside the building [was] to show them that we can, and we will” (emphasis added); and as the defendant maintained, she would rather “die” and “fight” than “live under oppression.” Only detention mitigates the grave danger the defendant and Munchel pose. [my emphasis]

I expect readers of this site will agree with the latter emergency motions, and I definitely agree about the threat the insurrection posed to democracy.

But it is critical to understand that legally, both motions are true.

The difference lies in the additional overt act including in Munchel’s emergency motion and the import ascribed to Eisenhart’s statements in hers. More importantly, the difference lies in the effect of their actions — and the actions of others that, videos show, they encouraged: to halt a constitutionally mandated act using terror.

Defense attorneys will argue, the threats to Turton notwithstanding, that there is no definitive evidence that Munchel or Eisenhart intended to engage in violence at the Capitol (and in Munchel’s case, they’ll cite his own statements warning against destruction). Outside the context of a concerted plan to prevent the certification of the election, one can make a compelling case that Munchel and Eisenhart are nothing more than protestors who broke the law.

It’s possible that prosecutors in Tennessee didn’t include that because they view the election outcome differently or simply view these two as individual defendants outside the context of the larger goal. It’s possible they’re simply not privy to much of the evidence that gives prosecutors in DC confidence they’ll be able to prove a more concerted effort, a concerted effort that Munchel and Eisenhart both willingly took a part in. It’s likely that DC prosecutors aren’t including other prosecutors in plans to build the sedition charge mentioned in the emergency motions.

The evidence amassed so far subjects the defendant to felonies beyond that with which he has been charged so far, including obstructing Congress, interstate travel in furtherance of rioting activity, sedition, and other offenses.

But the successful prosecution of Zip-Tie Guy and his mom will depend on prosecutors’ success at making that larger case and showing that both of them agreed to the larger goal.

I’ve alluded to, several times, how the case against the Hutaree Militia foundered based on two things: prosecutors’ reliance on speech as proof that each member of the conspiracy entered into a goal of attacking the US government, and insufficient proof that the federal government itself was the target.

The lesson is important background for the January 6 insurrection. In her opinion throwing out most of that prosecution, Judge Victoria Roberts emphasized the meticulous scrutiny that a charge of seditious conspiracy must give to speech acts.

Where a conspiracy implicates First Amendment protections such as freedom of association and freedom of speech, the court must make a “specially meticulous inquiry” into the government’s evidence so there is not “an unfair imputation of the intent or acts of some participants to all others.” United States v. Dellinger, 472 F.2d 340, 392 (7th Cir. 1972). It is black-letter law that “[a] defendant cannot be convicted of conspiracy merely on the grounds of guilt by association, and mere association with the members of the conspiracy without the intention and agreement to accomplish an illegal objective is not sufficient to make an individual a conspirator.” Lee, 991 F.2d at 348. Likewise, mere presence at the scene does not establish participation in a conspiracy. United States v. Paige, 470 F.3d 603, 609 (6th Cir. 2006).

The Government has consistently maintained that this case is not about freedom of speech or association, but about the specific acts of violence alleged in the Indictment. The Court relied upon these representations in denying Defendants’ pretrial motions for a jury instruction on the Brandenburg case, and the heightened strictissimi juris standard for sufficiency of the evidence (Docs. 610, 618). However, much of the Government’s evidence against Defendants at trial was in the form of speeches, primarily by Stone, Sr., who frequently made statements describing law enforcement as the enemy, discussing the killing of police officers, and the need to go to war. Indeed, at oral argument on March 26, 2012, the Government asked the Court to find the existence of a seditious conspiracy based primarily on two conversations involving Stone, Sr., and others — the first on August 13, 2009, and the second on February 20, 2010.

And she cited precedent that requires that seditious conspiracy must target the US government itself (the Hutaree allegedly hoped to spark a larger rebellion by killing some cops — not far different from what the Boogaloo espouse).

In Anderson v. United States, the Eighth Circuit applied Baldwin and dismissed a seditious conspiracy charge where the force sought to be exerted was “not against those whose duty it should be to execute the laws.” 273 F. 20, 26 (8th Cir. 1921). Defendants were charged with seditious conspiracy for conspiring to prevent, hinder and delay by force, various laws of the United States, including the congressional declaration of war with Germany, and laws relating to conscription. Id. at 22-23. In furtherance of the seditious conspiracy, the Indictment alleged that the defendants circulated books and periodicals calling for strikes and the overthrow of the capitalist system and criticizing the war and individuals who joined the armed services. Id. at 24- 24.

Relying on Baldwin, the Court stated that for the Indictment to sufficiently charge seditious conspiracy, the purpose of the conspiracy must be “the exertion of force against those charged with the duty of executing the laws of the United States . . . .” Id. at 26. The court then held that the Indictment was insufficient because the “force was to be exerted, not against those whose duty it should be to execute the laws, and while attempting to do so, but its application was to be made against industrial and commercial activities by lawless acts during strikes for the purpose of accomplishing alleged socialistic ends . . . .” Id.

The law is clear that seditious conspiracy requires an agreement to oppose by force the authority of the United States itself. It must be an offense against the Nation, not local units of government. See Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 505 (1956) (“Sedition against the United States is not a local offense. It is a crime against the Nation.” (citation and quotation marks omitted)). Any overt act in furtherance of seditious conspiracy must further a common plan to oppose the United States by force; otherwise, “the seditious conspiracy statute would expand infinitely to embrace the entire agenda of anyone who violated it . . . .” United States v. Rahman, 854 F. Supp. 254, 260 (S.D.N.Y. 1994); see also Haywood v. United States, 268 F. 795, 800 (7th Cir. 1920) (“[The seditious conspiracy statute] should not be enlarged by construction.”).

In that case, Roberts found that a plan to murder cops did not amount to seditious conspiracy.

The discussions of seditious conspiracy in Baldwin and Anderson are important to this case; while the Government presented evidence of vile and often hateful speech, and may have even shown that certain Defendants conspired to commit some crime – perhaps to murder local law enforcement — offensive speech and a conspiracy to do something other than forcibly resist a positive show of authority by the Federal Government is not enough to sustain a charge of seditious conspiracy. A conspiracy to murder law enforcement is a far cry from a conspiracy to forcibly oppose the authority of the Government of the United States.

The attack on the Capitol is an entirely different matter from that attempt by right wing militia members to spark an uprising in 2010. The targets of the January 6 conspiracy included the first and second in line to the Presidency, Mike Pence and Nancy Pelosi. Among the cops who were targeted — including the one who was murdered — were Capitol Police. The act that rioters were impeding was the execution of a duty laid out in the Constitution, certifying the Presidential election.

There’s little question that this amounts to a conspiracy against the government of the United States.

Nevertheless, as prosecutors tell one after another story about the individuals involved, they are going to have to make it clear, in each case, how each individual’s actions and stated goals tie to that larger effort to overthrow the constitutional working of the US government.

Update: Corrected where in succession Pence and Pelosi were.

Zip-Tie Guy’s Release on Bail Is Why Donald Trump Must Be Prosecuted

Yesterday, a magistrate judge in Nashville, Chip Frensley, gave Eric Munchel bail. He’s the guy who has become known as “Zip-Tie Guy” because of a picture of him taken in the Senate during the January 6 coup attempt, showing him dressed in tactical gear and holding zip ties.

The government will appeal the decision to DC Chief District Judge Judge Beryl Howell over the weekend, and thus far she has granted such requests from the government, so it’s certainly possible he will ultimately be held.

The bail hearing demonstrates one of the problems with the government’s investigation and prosecution going forward, one which demonstrates the necessity of prosecuting former President Donald Trump (see also this live tweet of the hearing and Politico’s account).

Munchel got charged, along with his mom, Lisa Marie Eisenhart, with the two trespassing charges used for most defendants, conspiracy among themselves, along with obstructing law enforcement during civil disorder.

The filing supporting detention described that Munchel must be found guilty of attempting to impede law enforcement during civil disorder.

To prove a violation of 18 U.S.C. § 231(a)(3), the government must show (1) that a civil disorder existed at the time of any alleged violation; (2) that such civil disorder was resulting in interference with a federally protected function; (3) that one or more law enforcement officers were lawfully engaged in the lawful performance of their official duties incident to and during the commission of such civil disorder; (4) that the defendant attempted to commit an act for the intended purpose of obstructing, impeding, or interfering, either by himself or with someone else, in a violent manner with such law enforcement officer or officers; and (5) that such attempt to act was done willfully and knowingly. United States v. Casper, 541 F.2d 1275, 1276 (8th Cir. 1976).

The evidence doesn’t show Munchel doing that — though shows his mom yelling at the cops. Indeed, the judge in the hearing described video showing him being deferential to cops inside the Capitol. The fact he grabbed the zip ties and said he wanted to seize the Senate gavel suggests he targeted Congress, not the cops.

What the evidence does show is Munchel is a gun nut who wanted to terrorize lawmakers. His mom spoke more explicitly of violent revolution.

“It was a kind of flexing of muscles,” said Munchel, who wore a bulletproof vest and complained that police confiscated his Taser during the riot. “The intentions of going in were not to fight the police. The point of getting inside the building is to show them that we can, and we will.”

Preparing for their 10-hour drive home, the 30-year-old clamoured for greater organisation in the next steps to fight against Biden’s America. He worried that many pro-Trump warriors were individualists and lamented that potential leaders in the Make America Great Again (Maga) movement faced difficulty in rallying troops due to banishment from mainstream social media sites. “Our biggest struggle is getting together, knowing where to go, what to do and who to go to,” said Munchel despondently.

His mother agreed: “The left has everything: the media, organisations, the government. We have to organise if we’re going to fight back and be heard.” Eisenhart, a nurse, added that a violent revolution has long been on the cards thanks to last year’s racial justice protests, anti-police riots and “unnecessary” coronavirus lockdowns.

“This country was founded on revolution. If they’re going to take every legitimate means from us, and we can’t even express ourselves on the internet, we won’t even be able to speak freely, what is America for?” said a teary-eyed Eisenhart, biting into a hotdog. “I’d rather die as a 57-year-old woman than live under oppression. I’d rather die and would rather fight.”

The most compelling piece of evidence that Munchel could have coordinated with a more organized plot involves an exchange he had with the Oath Keepers as he headed into the building.

As MUNCHEL and Eisenhart make their way to the Capitol, they encounter several members of the “Oathkeepers,” a militia group that is distrustful of government authority. One of the Oathkeepers says, “There’s 65 more of us coming.” MUNCHEL, when he recognizes them, says in affirmation, “Oathkeepers,” and bumps fists with one of the men.

But that does’t show pre-planning nor does it tie his possession of the zip ties to any plan the Oath Keepers had.

The government clearly either fears that Munchel will engage in violence or it wants to make sure it keeps its showy zip-tie guy on ice to include kidnapping among the parts of the plot they’ll eventually lay out. But the judge is right that, thus far, the government hasn’t shown evidence that he coordinated with anyone except his mom.

Silent in all this (because, unlike the other kitted-out guy in the Senate that day, Munchel was not shown to have told a reporter that he responded to the call of the then-President to come to DC to engage in that show of force) is the framework of Trump’s calls to overturn an election. The evidence even suggests that Eisenhart claims to have believed Trump’s Big Lie of a stolen election (and it may well be true that she does believe it). But that’s the single factor that makes Zip-Tie Guy’s actions, with his mom, dangerous. He wanted to scare lawmakers, and he wanted to do it in the context of a plea to illegally retain power. A plea from Donald Trump.

Until such time as prosecutors are ready to argue that this show of terrorism was intended to support false claims of election theft mobilized in an attempt to overthrow the Constitutional government of the United Staes, judges are going to find that guys like Munchel owned their arsenals legally and — while violating specific laws protecting the Capitol and the counting of the votes — do not pose a grave threat to our country.

I’m not saying I believe that. I’m not even sure Frensley does.

But absent closer ties to the Oath Keepers (who did clearly pre-plan), the thing that makes the raid on the Capitol especially dangerous, the thing that makes Munchel’s grab for the gavel and the zip-ties criminal, is Trump’s illegal plan. And so, until prosecutors start naming Trump as a co-conspirator, start naming the Big Lie of a stolen election as the motivating cause of the violence, guys like Munchel are going to continue to get bail.

Update: Mirriam Seddiq did a video talking about how conspiracy works in US law, as applied to Trump’s incitement of an insurrection that lays out how this should be presented to judges.

Update: Over the weekend, Beryl Howell granted the government’s emergency motion for detention. The motion included an additional allegation against Munchel, that he had assaulted Bloomberg journalist William Turton.

On the evening of January 6, 2021, after the insurrection, an individual posted a video of the Grand Hyatt hotel lobby on Twitter. The person then posted a message that read: “After I took this video, several Trump supporters harassed me and tried to follow me to my room. One accused me of being ‘antifa.’3 Hotel security intervened and moved me to new room. What a weird day.” See https://twitter.com/WilliamTurton/status/1346980284252745729 (Last accessed on January 23, 2021). The person added: “The Trump supporters demanded that I delete the video. One woman flashed her taser at me, and threatened to mace me.” See https://twitter.com/WilliamTurton/status/1347024856416714752 (last viewed January 23, 2021). Two days later, on January 8, based on another video from the Grand Hyatt posted to social media, the person identified the defendant as “one of the people in the hotel lobby who demanded I delete the video, put his hands on me, and screamed at me . . . .” See https://twitter.com/WilliamTurton/status/1347699125408641024 (last viewed January 23, 2021); https://twitter.com/WilliamTurton/status/1347699345345417217 (last viewed January 23, 2021). Evidence of this encounter was not presented at the preliminary and detention hearing in the Middle District of Tennessee.

It also more aggressively described what Munchel had done as insurrection.

Finally, it is difficult to fathom a more serious danger to the community—to the District of Columbia, to the country, or to the fabric of American Democracy—than the one posed by armed insurrectionists, including the defendant, who joined in the occupation of the United States Capitol. Every person who was present without authority in the Capitol on January 6 contributed to the chaos of that day and the danger posed to law enforcement, the Vice President, Members of Congress, and the peaceful transfer of power. The defendant’s specific conduct aggravated the chaos and danger. It was designed to intimidate Members of Congress and instigate fear across the country. Make no mistake: the fear the defendant helped spread on January 6 persists—the imprint on this country’s history of a militia clad insurrectionist standing over an occupied Senate chamber is indelible. Only detention mitigates such grave danger.

It makes it clear Munchel may be facing additional charges.

The evidence amassed so far subjects the defendant to felonies beyond that with which he has been charged so far, including obstructing Congress, interstate travel in furtherance of rioting activity, sedition, and other offenses. These offenses carry substantial penalties, which incentivizes flight and evading law enforcement—a thought that the defendant already appears to have contemplated by virtue of avoiding his residence and workplace, terminating his Facebook account, and leaving his cell phone with an associate.

Bill Barr Hid Evidence of a Bribery for Pardon Investigation During the Election

Beryl Howell just partially unsealed an opinion she wrote on August 28, permitting DOJ to access some attorney’s communications in a bribery-for-pardon scheme. It’s unclear who the targets of the investigation are — though their names are too short to be Rudy Giuliani.

But one thing is clear: Judge Howell asked DOJ to tell her whether the opinion could be unsealed.

The order associated with that opinion directed the government to submit a “report advising whether any portions of the accompanying Memorandum Opinion may be unsealed to the public in whole or in part and, if so, proposing any redactions.”

DOJ did not respond until November 25, and in their response, they asked her to keep the entire thing under seal.

On November 25, 2020, the government submitted a status report requesting that the Court “maintain the Memorandum Opinion under seal” because it “identifies both individuals and conduct that have not been charged by the grand jury” and declining to suggest any redactions for a publicly available version.

She made them go line by line to get the redactions issued with this opinion.

So basically Barr hid that someone tried to bribe Trump for a pardon through the entire election.

Update: Howell gave them 90 days so Barr didn’t intentionally hold it.

Roger Stone Assistant Andrew Miller Fought His Subpoena Far More Aggressively than His Former Boss

I want to look at a notable asymmetry in the way Roger Stone and his former assistant Andrew Miller responded to being subpoenaed by Robert Mueller’s team.

As I noted in an update to this post, in November 2018, Mueller’s team subpoenaed Stone after Chuck Ross published texts Stone gave the journalist so he would publish a bullshit claim that Randy Credico was Stone’s back channel.

Pointing to the text messages, Stone asserts that Credico “lied to the grand jury” if he indeed denied being Stone’s contact to Assange.

“These messages prove that Credico was the source who told me about the significance of the material that Assange announced he had on Hillary. It proves that Randy’s source was a woman lawyer,” Stone told TheDCNF.

Ross published five sets of texts, four of which he clearly attributed to Stone.

The text showing Credico reminding Stone that he had an earlier source by itself actually undermined Stone’s claim to HPSCI that Credico was his source. Emails FBI already had in possession showed Credico’s comms with Stone post-dated Stone’s public claims to have had an intermediary to Julian Assange.

By providing texts to Ross Stone had told HPSCI he didn’t have, he provided all the evidence needed to be found guilty of one charge in his eventual indictment. In addition, unbeknownst to Stone, Credico didn’t have some of his own texts, including some of the ones that Stone had retained. So by providing them to Ross, Stone made it clear he had texts that were otherwise unavailable.

The fact that Stone had those texts, from a phone he stopped using in 2016, also contributed to the probable cause that the phone would be in one of Stone’s homes when the FBI searched them.

The affidavit supporting the search of Stone’s homes makes it clear that Stone did comply when the FBI subpoenaed him for texts he was freely willing to share with Chuck Ross, though the description of it as “recent[]” may suggest that Stone stalled a bit.

The government has only recently obtained text messages between Stone and Credico during some period of the campaign in 2016 from Stone’s subpoena production, issued after media reports in November 2018 stated that Stone’s attorneys were able to extract text messages between Stone and Credico from a phone Stone stopped using in 2016.

Still, Stone complied with a Mueller subpoena with nary a public squawk.

Compare that with a new detail the files released last week make clear about Andrew Miller’s year long fight of a Mueller subpoena. We knew that, after Miller agreed to an FBI interview with no counsel on May 9, 2018, he then commenced a year-long subpoena fight to avoid testifying before the grand jury, with an inordinate amount of legal fuckery. We knew that the very last thing that occurred under Mueller’s authority was the final negotiation for Miller’s testimony — though the grand jury Miller appeared before was actually not Mueller’s, suggesting Miller’s testimony was needed for the ongoing investigations still hidden in court filings released last week. (Prosecutors subpoenaed Miller to be available for Stone’s trial but never called him, so his testimony did pertain in some way to the lies Stone told HPSCI.)

What we didn’t know before last week is how much Stone communicated with Miller while the former assistant launched this subpoena challenge. After he met with the FBI, an August 2018 warrant makes clear, Stone and Miller spoke by phone. They did the next day too, when Mueller subpoenaed Miller. Miller stalled in a variety of ways for a month. Then, on June 14, after Mueller moved to force Miller to testify, Stone and Miller emailed five times. That’s the period when Miller got a new lawyer, Paul Kamenar, who led Miller’s subpoena challenge to the Supreme Court, all the while claiming Miller was challenging the subpoena it for libertarian reasons. Between May 23, 2018 and August 3, 2018, as that challenge was proceeding, Stone and Miller exchanged over 100 emails. (Chief DC Judge Beryl Howell, who authorized the August 3 warrant, had just ordered Miller to testify as soon as possible, which led directly to his appeal.)

The difference in response to the subpoena may simply reflect that Miller launched the challenge to Mueller’s authority that Stone otherwise might have made. Or it may reflect that there’s no defense to a subpoena if you’re selectively feeding the subpoenaed materials to the press.

But it also might suggest that Stone viewed whatever testimony Miller provided to be more damning to Stone than turning over texts that would prove that Stone’s claim that Credico was his back-channel to Assange was bullshit.

On April 24, Kamenar filed a notice of appearance as Stone’s lawyer in his prosecution and will represent Stone for the appeal.

The COVID Delay Should Give Reggie Walton First Pass at the Roger Stone Unsealing

Back when Reggie Walton ordered DOJ to give him a copy of the Mueller Report to review the exemption claims, I suggested that Judge Walton was unlikely to make much more public, except that his review might speed the process of liberating the material on Roger Stone that had been withheld under Amy Berman Jackson’s gag.

Be warned, however, that this review is not going to lead to big revelations in the short term.

There are several reasons for that. Many of the most substantive redactions pertain to the Internet Research Agency and Roger Stone cases. Gags remain on both. While Walton is not an Article II pushover, he does take national security claims very seriously, and so should be expected to defer to DOJ’s judgments about those redactions.

Where this ruling may matter, though, is in four areas:

  • DOJ hid the circumstances of how both Trump and Don Jr managed to avoid testifying under a grand jury redaction. Walton may judge that these discussions were not truly grand jury materials.
  • DOJ is currently hiding details of people — like KT McFarland — who lied, but then cleaned up their story (Sam Clovis is another person this may be true of). There’s no reason someone as senior as McFarland should have her lies protected. All the more so, because DOJ is withholding some of the 302s that show her lies. So Walton may release some of this information.
  • Because Walton will have already read the Stone material — that part that most implicates Trump — by the time Judge Amy Berman Jackson releases the gag in that case, he will have a view on what would still need to be redacted. That may mean more of it will be released quickly than otherwise might happen.
  • In very short order, the two sides in this case will start arguing over DOJ’s withholding of 302s under very aggressive b5 claims. These claims, unlike most of the redactions in the Mueller Report, are substantively bogus and in many ways serve to cover up the details of Trump’s activities. While this won’t happen in the near term, I expect this ruling will serve as the basis for a similar in camera review on 302s down the road.

But because of the COVID-related delay in Walton’s review, it’s likely he’ll make a first pass on the Roger Stone declassification, making it far harder for Bill Barr to politicize the release like he has the 302s.

Walton issued his order commanding DOJ to give him an unredacted version of the Mueller Report on March 5. DOJ complied with that order and delivered the report (and two other pages at issue in the lawsuit) on March 30. However, that same day, Walton issued a minute order stating that, because of Chief Judge Beryl Howell’s order suspending operations at the courthouse, he would be unable to start the review until April 20.

However, in light of the Chief Judge Howell’s March 16, 2020 Order Regarding Court Operations in Exigent Circumstances Created by the COVID-19 Pandemic, Standing Order No. 20-9 (BAH), the Court’s review of the unredacted version of the Mueller Report is unable to occur until the Court resumes its normal operations on April 20, 2020, unless the Court’s normal operations are further suspended due to the COVID-19 pandemic. Signed by Judge Reggie B. Walton on March 30, 2020.

He even suggested that if operations were further suspended (as they have been), the review might be further delayed — though EPIC made a case that the review is an essential function and should start on April 20 (that is, yesterday).

EPIC respectfully submits that in camera review of the Mueller Report is an essential function warranting the Court’s prompt attention.

[snip]

Time is of the essence in this case. It is vital that the American citizenry know the full extent of Russian interference in the 2016 presidential election before casting their votes in the 2020 presidential election, now just 200 days away. And it is vital that there be judicial review of the DOJ’s asserted exemptions that prevent public release of relevant information contained within the Mueller Report.

Walton has not indicated in the docket whether he started the review yesterday or not.

That said, once he does get around to the review, it will be far more substantive than it otherwise might. That’s because, days before Walton said he would conduct this review, ABJ issued her opinion denying Stone’s bid for a new trial. In her order, she released Stone from her gag.

Also, as of the date of this order, the defendant and his attorneys are hereby released from the media communication order of February 15, 2019 [Dkt. # 36], the minute order of February 21, 2019, and the order of July 17, 2019, [Dkt. # 149], although all other Court orders, including those related to the confidentiality of materials, and all other conditions of the defendant’s release, remain in place.

That means several of the exemptions invoked to hide Roger Stone’s efforts to optimize the WikiLeaks releases — everything under a b7A or b7B exemption starting on page 52 and in some other places — no longer apply. And given the way the timing has worked out, Reggie Walton will have first dibs on deciding whether President Trump’s personal involvement in Stone’s effort is entitled to any privacy consideration.

It may take Walton a while to get through this stuff (particularly if the 71-year old judge decides COVID threats prevent him from starting). But he should be able to get first review of what gets unsealed now.

Meanwhile, there’s another imminent source of more transparency coming.

Back in February 2019, a bunch of media outlets moved to get the warrants,

associated with the application for, issuance of, and returns regarding warrants related to the Russia Investigation generally and the Stone prosecution in particular.

The government interpreted that request this way:

It is unclear whether the movant’s request is limited to warrants issued pursuant to Rule 41 or also includes warrants under the SCA. In an abundance of caution, the government is treating the request as covering both categories. It is similarly unclear whether the reference to “warrants relevant to the Prosecution of Roger J. Stone, Jr.” means only warrants to search Stone’s property and facilities or includes other warrants that were executed as part of the same line of investigation. Again, in an abundance of caution, the government is treating the request as covering both categories.3

3 The government does not understand the request to include warrants that were not related to Stone or that line of investigation but that merely happened to yield evidence that concerns Stone and is being provided to him in discovery.

Back in January, the government said it could release the materials most closely related to Stone.

MR. KRAVIS: Yes, Your Honor. We believe that there are some materials in the warrant affidavits that can now be unsealed — in the affidavits that are responsive to the access request that can now be unsealed in light of the conclusion of the Roger Stone trial.

THE COURT: All right.

MR. KRAVIS: However, there are other materials in those warrant affidavits that the government believes should remain under seal either because those materials relate to other pending investigations — that is, investigations other than the one that culminated in the Roger Stone trial — and materials that implicate the privacy and reputational interests of uncharged third parties. And so the government’s request at this point is for the Court to set a deadline — the government would propose 60 days — for the government to go back and review the search warrant affidavits that are responsive to the movant’s access requests and make a recommendation to the Court as to which materials can be unsealed and which materials should remain under seal. And then the Court would have an opportunity to hear from Mr. Stone on that point, and then the Court could decide how to handle the matter from there.

Based on that schedule, the government submitted 33 exhibits — each of them, presumably, a warrant application — under seal for the court’s review.  After Judge Christopher Cooper ordered the government to give Stone a copy of the warrants so he could argue to redact more of the affidavits, the government asked that the protective order from the trial extend to these warrants because, “not all of them were previously provided to counsel for Mr. Stone in criminal discovery.”

After getting a COVID-related extension, Stone and his lawyers have until Friday to object to the privacy and grand jury related redactions in the warrants in question.

The upcoming release of warrants targeting Stone is interesting not least because we may see why he was investigated for hacking and wire fraud (though those are the kind of affidavit filings Stone once said they would fight to keep sealed). But filings in his case (this ABJ opinion is the most detailed) described that he received just 18 warrants in discovery. Which means there are 16 warrant applications that Stone had not seen before a few weeks ago, which either targeted people like Jerome Corsi and Randy Credico (and maybe even Steven Bannon and Ted Malloch), or of a scope previously unknown.

In the pandemic era, things have a way of getting delayed. And Stone has made it clear he’ll try to hide details explaining why the FBI thought he might have liability under the CFAA.

But as we’ve been focused on COVID, the release of Stone-related materials in the wake of his trial has inched closer.

Update: Judge Walton scheduled a status conference for June 18, which will likely be the earliest that we might learn what else he’ll release. And Stone submitted their response on the 33 warrants this morning, under seal.

Update: Stone did not object to the government’s redactions, so Judge Cooper ordered the government to release the warrants (there are actually 33, not 34 as I initially wrote) on Tuesday. The redactions include non-public information on pending investigations.

The Timeline Suggests Bill Barr Removed Jesse Liu to Intervene for Trump’s Rat-Fucker

Far be it for me to doubt Bill Barr’s ability to manufacture a cover-up. He’s damn good at it, that’s why he was hired, and he’s got a lot of power to use to execute one.

But it’ll be harder this time around than it was for Poppy Bush, in part because Barr’s principal has the propensity to go off half-cocked, the frothy right doesn’t think rationally, and Barr himself may believe what he sees on Fox News more than what he sees in court dockets, to the extent he even reviews court dockets.

That’s particularly true given the timeline leading up to the Tuesday Night Massacre, because it appears to show that Bill Barr removed Jessie Liu — and then Trump withdrew her nomination excusing that removal — mostly (at least as far as what is visible thus far) to intervene for Trump’s rat-fucker, Roger Stone.

At least as the timing of the DOJ filings reflect, Barr intervened with the strategy he claimed to Pierre Thomas to apply with Roger Stone with Mike Flynn, providing reasons for Judge Emmet Sullivan to sentence lightly, but leaving it up him. Importantly, Jessie Liu proved willing to do that on January 29; she signed the softened Flynn sentencing memo (though it’s possible Trump submitted her nomination on January 6 in response to the discussions around the initial, harsher memo).

The next day, per dates included in the Roger Stone sentencing memo, DOJ submitted an objection to the January 16 Presentence Investigation Report.

Probation and the Government, however, incorrectly maintain that the following offense level increases are applicable:

Specific Offense Characteristics U.S.S.G. §2J1.2(b)(1)(B) 8 level increase ¶76 1

Specific Offense Characteristics U.S.S.G. §2J1.2(b)(1)(2) 3 level increase ¶77

Obstruction of Justice U.S.S.G. §3C1.1 2 level increase ¶80

Obstruction of Justice 2 U.S.S.G. §2J1.2(b)(3)(C) 2 level increase ¶77

1 Paragraph references are to the Presentence Investigation Report, dated January 16, 2020, (“PSR”). [Dkt. #272].

2 Government’s Objection to Presentence Investigation Report, dated January 30, 2020.

Possibly, given footnote 2, they added language to substantiate the extent to which Stone went to sustain his cover-up.

Pursuant to U.S.S.G. § 2B1.2(b)(3)(C), two levels are added because the offense was otherwise extensive in scope, planning, or preparation. Stone engaged in a multi-year scheme involving (1) false statements in sworn testimony; (2) the concealment of important documentary evidence; (3) further lies in a written submission to Congress; and (4) a relentless and elaborate campaign to silence Credico that involved cajoling, flattering, crafting forged documents, badgering, and threatening Credico’s reputation, friend, life, and dog. Stone’s efforts were as extensive, if not more extensive, than those of other defendants who received this two-level enhancement at sentencing.

That’s when Barr appointed Timothy Shea as interim US Attorney, effective just two business days later, the one way to take Jessie Liu out of the command structure immediately.

According to Barr’s interview, Shea started asking questions about Stone’s sentencing a week before the memo got submitted. That means Shea spent his first day focused on the Stone sentencing. That makes it hard to believe he was installed for any other reason but to help Stone out.

The first Trump-related motions — basically to remove Flynn’s attorney-client privilege so Covington’s lawyers can expound on how many lies Flynn told them about Russia and his work for Turkey — showed no discernible Barr influence (though Flynn’s reversal on continuing these discussions may have).

Barr provided several somewhat contradictory explanations for what happened on February 10 to Thomas. He claims that Shea “came by” DOJ and alerted Barr that line prosecutors still wanted to recommend the 7-9 year sentence calculated by the Probation Office. Then Barr suggested that he got involved here because line prosecutors who have decades of experience are too junior to make “life or death” decisions.

What other industry allows life or death decisions to be made by the most junior level of the business.

Not long later, however, Barr denied intervening in a case.

Most cases don’t come up to the Attorney General because people are doing a good job.

Some people saying AG intervening in a case. That’s preposterous! We have an escalation system that tries to get the difficult issues that are, you know, people are arguing about, to get them up for resolution and it’s the Attorney General’s decision to decide it.

But here’s the key: Barr claims he only got involved in Stone’s sentencing memo because “difficult issues” got escalated.

Except they only got escalated because he had just installed his hand-picked flunky to oversee this. This wouldn’t have been escalated if Liu were still in place.

All the evidence suggests that Bill Barr replaced Jessie Liu to give himself an excuse to intervene personally in Stone’s sentencing.

And what will it get him? I suspect Judge Amy Berman Jackson would never have sentenced Stone to 7 to 9 years —  the harsher sentence — in any case (especially given that she only gave Paul Manafort 7.5 years). She probably would have given Stone 4-5 years and might still, a slight enhancement for the threat against Randy Credico, but not much. But this drama about sentencing is likely not the big question, given that Stone is likely to have his sentence commuted, one way or another, on November 4, the day after election day. So the real question is how much of the next nine months he serves in prison, which ABJ has some control over, especially given Stone’s propensity to make threats when he’s not in prison or gagged. If ABJ sentences Stone to 4-5 years — close to what Barr has now signed off on in very public and intrusive fashion — but sends him to prison right away, it’s less likely Trump will do something immediate, like pardon him. Whereas, had Barr not intervened, it would have had the same effect but without Barr’s tacit approval for a 3-4 year sentence.

I can’t decide whether the plan here is to make judges look unreasonable — which could happen when Sullivan sentences Flynn to prison, except for the really atrocious details about how Flynn was secretly working for a frenemy government while purportedly advising Trump on national security issues. Or whether it’s to minimize sentence time — which Barr hasn’t done by endorsing a sentence just a year or so less than what ABJ might be inclined to give anyway.

Meanwhile, after inventing a way to remove Jessie Liu immediately, Lou Dobbs and a bunch of other frothers convinced the President to withdraw her nomination, possibly encouraged by the threat of questions about all this in her confirmation hearing, which was scheduled for yesterday. She resigned yesterday from whatever desk Trump parked her at to make way for Shea. She’s a pretty loyal Trumpster, so it’s unclear whether she’ll go quietly. But if she chooses, as a private citizen she’s now entitled to respond to subpoenas from Congress, and between her and Jonathan Kravis (who also resigned entirely from DOJ), she can explain what is really going on.

Meanwhile, Shea is now on the clock: he has until June 2 to complete shutting down any investigations into Trump. Unless the Senate confirms a successor that has not yet been confirmed, then Chief Judge Beryl Howell will be able to pick his replacement. And she was none too happy about this week’s drama.


December 10, 2019: Trump announces intent to nominate Jessie Liu to Treasury

January 4: DOJ asks for one more day to submit Flynn supplemental sentencing memorandum; signed by Liu

January 6: Trump nominates Liu to Treasury

January 7: DOJ submits harsh sentencing memo that nevertheless asks for guidelines sentence; signed by Liu

January 16: Probation Office completes Stone PSI recommending 7-9 years

January 22: DOJ notices court that they’ve provided the last of the Flynn 302s; signed by Liu

January 29: DOJ submits reply sentencing memo, with probation recommendation; signed by Liu

January 30: DOJ submits objection to Stone PSI; Barr appoints Timothy Shea DC US Attorney, effective February 3

February 3: Shea starts; per ABC interview, starts asking questions about the sentencing

February 5: Senate acquits Trump

February 9: DOJ files motion to continue briefing schedule and motion to confirm waiver of attorney-client privilege; signed by Jocelyn Ballentine; Brandon Van Grack not on motions, but probably in preparation for hearing

February 10: Shea “comes by” DOJ and tells Barr the team wanted to recommend 7-9 recommendation; Barr “under the impression” that “what was going to happen was what I had suggested;” DOJ files sentencing memo recommending 7-9 years; Barr claims he decided at night to amend recommendation

February 11:

3:07: Aaron Zelinsky withdrawal

3:56: Jonathan Kravis withdrawal

4:34: John Crabb Jr. files appearance

4:40: Supplemental sentencing memo created, signed by John Crabb Jr

5:27: Adam Jed withdrawal

5:39: Michael Marando withdrawal

6:10: Supplemental sentencing memo finalized

February 12: Trump withdraws Liu’s nomination; DOJ submits response to motion to dismiss; signed by Brandon Van Grack; Jessie Liu resigns from Treasury desk she was parked at to make way for Shea

February 13: Bill Barr does staged interview where he dodges any real explanation for his interference

June 2: Timothy Shea’s interim appointment expires

The 900 Pages of George Nader Testimony the Government Wants to Keep Hidden

Brad Heath spotted this Beryl Howell opinion granting George Nader’s request to get a copy of his own grand jury transcript.

We can be sure it’s Nader because of the details she includes: Someone currently jailed for crime with significant mandatory minimums charged using evidence from a phone seized in the Mueller investigation, awaiting trial early next year. The person provided testimony with immunity on four occasions in February and March 2018.

That all fits Nader and only Nader.

In my continuing interest in tracking the dregs of the Mueller investigation, several details are of interest. Howell describes that his transcript is 900 pages long. Several of the redactions suggest Nader may need the transcripts to craft a defense in potential additional charges, which would more obviously raise a need to consult the transcript and the limits of his immunized testimony. And, the government claims that Nader was asked “questions regarding ongoing investigations.”

That’s not surprising in the least. Nader’s testimony touched on so many crimes it is unsurprising some of them remain active investigations (note the attached picture, which shows Nader with Jared Kushner and Mohammed bin Salman.

The question is how he wants to use this transcript. It’s possible he needs it to argue that potentially pending charges against him are improperly based on immunized testimony (and as such wants to eliminate criminal exposure before making the best plea deal he can).  Or it’s possible he wants the transcript to be able to explain the risks any cooperation he’d offer would pose to powerful people.

The Mueller Report Was Neither about Collusion Nor about Completed Investigation(s)

In the days since BuzzFeed released a bunch of backup files to the Mueller Report, multiple people have asserted these 302s are proof that Robert Mueller did an inadequate investigation, either by suggesting that the information we’re now seeing is incredibly damaging and so must have merited criminal charges or by claiming we’re seeing entirely new evidence.

I’ve had my own tactical complaints about the Mueller investigation (most notably, about how he managed Mike Flynn’s cooperation, but that might be remedied depending on how Emmet Sullivan treats Sidney Powell’s theatrics).  But I have yet to see a complaint that persuades me.

You never know what you can find in the Mueller Report if you read it

Let’s start with claims about how the release revealed details we didn’t previously know. Virtually all of these instead show that people haven’t read the Mueller Report attentively (though some don’t understand that two of the six interview reports we’ve got record someone lying to Mueller, and all are interviews of human beings with imperfect memories). Take this Will Bunch column, which claims that Rick Gates’ claims made in a muddled April 10, 2018 interview reveal information — that Trump ordered his subordinates to go find Hillary emails — we didn’t know.

Rick Gates, the veteran high-level political operative who served as Donald Trump’s deputy campaign manager in 2016, told investigators he remembers exactly where he was — aboard Trump’s campaign jet — when he heard the candidate’s desires and frustrations over a scheme to defeat Hillary Clinton with hacked, stolen emails boil over. And he also remembered the future president’s exact words that day in summer 2016.

Gates’ disclosure to investigators was a key insight into the state of mind of a campaign that was willing and eager to work with electronic thieves — even with powerful foreign adversaries like Russia, if need be — to win a presidential election. Yet that critical information wasn’t revealed in Mueller’s 440-page report that was supposed to tell the American public everything we needed to know about what the president knew and when he knew it, regarding Russia’s election hacking.

The passage in question comes from an interview where a redacted section reflecting questions about what Gates knew in May 2016 leads into a section on “Campaign Response to Hacked Emails.” What follows clearly reflects a confusion in Gates’ mind — and/or perhaps a conflation on the part of the campaign — between the emails Hillary deleted from her server and the emails stolen by Russia. The passage wanders between these topics:

  • People on the campaign embracing the Seth Rich conspiracy
  • Don Jr asking about the emails in “family meetings
  • The campaign looking for Clinton Foundation emails
  • Interest in the emails in April and May, before (per public reports) anyone but George Papadopoulos knew of the stolen emails
  • The June 9 meeting
  • Trump exhibiting “healthy skepticism” about some emails
  • The anticipation about emails after Assange said they’d be coming on June 12
  • The fact that the campaign first started coordinating with the RNC because they had details of upcoming dates
  • RNC’s media campaigns after the emails started coming out
  • Trump’s order to “Get the emails” and Flynn’s efforts to do so
  • Details of who had ties to Russia and the Konstantin Kilimnik claim that Ukraine might be behind the hack
  • China, Israel, Kyrgyzstan
  • Gates never heard about emails from Papadopoulos
  • Sean Hannity

This seems to be more Gates’ stream of consciousness about emails, generally, then a directed interview. But Gates’ claim that 1) he didn’t know about emails from Papadopoulos but nevertheless 2) was party to discussions about emails in April and May is only consistent with some of these comments pertaining to Hillary’s deleted emails.

Once you realize that, then you know where to look for the “Get the emails” evidence in the Mueller Report: in the description of Mike Flynn making extensive efforts to get emails — albeit those Hillary deleted.

After candidate Trump stated on July 27, 2016, that he hoped Russia would “find the 30,000 emails that are missing,” Trump asked individuals affiliated with his Campaign to find the deleted Clinton emails.264 Michael Flynn-who would later serve as National Security Advisor in the Trump Administration- recalled that Trump made this request repeatedly, and Flynn subsequently contacted multiple people in an effort to obtain the emails.265

264 Flynn 4/25/18 302, at 5-6; Flynn 5/1/18 302, at 1-3.

265 Flynn 5/1/18 302, at l-3.

The footnotes make it clear that in the weeks after Mueller’s team heard from Gates that Flynn used his contacts to search for emails, they interviewed Flynn several times about that effort, only to learn that that incredibly damning effort to find emails involved potentially working with Russian hackers to find the deleted emails. And to be clear: Bunch is not the only one confused about this detail–several straight news reports have not been clear about what that April 10 interview was, as well.

A November 5, 2016 email from Manafort — which the newly released documents show Bannon wanting to hide that Manafort remained a campaign advisor — is another thing that actually does show up in the Mueller Report, contrary to claims.

Later, in a November 5, 2016 email to Kushner entitled “Securing the Victory,” Manafort stated that he was “really feeling good about our prospects on Tuesday and focusing on preserving the victory,” and that he was concerned the Clinton Campaign would respond to a loss by “mov[ing] immediately to discredit the [Trump] victory and claim voter fraud and cyber-fraud, including the claim that the Russians have hacked into the voting machines and tampered with the results.”937

In other words, there is little to no evidence that the most damning claims (save, perhaps, the one that RNC knew of email release dates, though that may not be reliable) didn’t make the Report.

The Mueller Report is an incredibly dense description of the details Mueller could corroborate

The FOIAed documents are perhaps more useful for giving us a sense of how dense the Mueller Report is. They show how several pages of notes might end up in just a few paragraphs of the Mueller Report. The entirety of the three Gates’ interviews released Saturday, for example, show up in just four paragraphs in the Mueller Report: two in Volume I describing how the campaign made a media campaign around the leaks and how Trump once told him on the way to the airport that more emails were coming.

And two paragraphs in Volume II repeating the same information.

Worse still, because the government has released just six of the 302s that will be aired at the Roger Stone trial starting this week, much of what is in those interviews (undoubtedly referring to how Manafort and Gates coordinated with Stone) remains redacted under Stone’s gag order, in both the 302 reports and the Mueller Report itself.

Shocked — shocked!! — to find collusion at a Trump casino

Then there are people who read the 302s and were shocked that Mueller didn’t describe what the interviews show to be “collusion” as collusion, the mirror image of an error the denialists make (up to and including Bill Barr) in claiming that the Mueller Report did not find any collusion.

As I’ve pointed out since March 2017, this investigation was never about collusion. Mueller was tasked to report on what crimes he decided to charge or not, so there was never a possibility he was going to get into whether something was or was not collusion, because that would fall outside his mandate (and the law).

Worse still, in his summary of the investigation, Barr played a neat game where he measured “collusion” exclusively in terms of coordination by the campaign itself with Russia. It was clear from that moment — even before the redacted report came out — that he was understating how damning Mueller’s results would be, because Roger Stone’s indictment (and communications of his that got reported via various channels) made it crystal clear that he at least attempted to optimize the releases, but that involved coordination — deemed legal in part out of solid First Amendment concerns — with WikiLeaks, not Russia, and so therefore wouldn’t be covered by Barr’s narrow definition of “collusion.”

Of late, I’ve found it useful to use the definition of “collusion” Mark Meadows used in a George Papadopoulos hearing in 2018. In an exchange designed to show that in an interview where George Papadopoulos lied about his ongoing efforts to cozy up to Russia his denial that Papadopoulos, the coffee boy, knew about efforts to benefit from Hillary Clinton’s stolen emails, Meadows called that — optimizing the Clinton releases — “collusion.”

Mr. Papadopoulos. And after he was throwing these allegations at me, I —

Mr. Meadows. And by allegations, allegations that the Trump campaign was benefiting from Hillary Clinton emails?

Mr. Papadopoulos. Something along those lines, sir. And I think I pushed back and I told him, I don’t know what the hell you’re talking about. What you’re talking about is something along the lines of treason. I’m not involved. I don’t know anyone in the campaign who’s involved. And, you know, I really have nothing to do with Russia. That’s — something along those lines is how I think I responded to this person.

Mr. Meadows. So essentially at this point, he was suggesting that there was collusion and you pushed back very firmly is what it sounds like. [my emphasis]

One of the President’s biggest apologists has stated that if the campaign did make efforts to optimize the releases, then they did, in fact, collude.

The Roger Stone trial, which starts Tuesday, will more than meet that measure. It astounds me how significantly the previews of Stone’s trials misunderstand how damning this trial will be. WaPo measures that Mueller failed to find anything in Roger Stone’s actions, which is not what even the indictment shows, much less the Mueller Report or filings submitted in the last six months.

The Stone indictment suggests that what prosecutors found instead was a failed conspiracy among conspiracy theorists, bookended by investigative dead ends and unanswered questions for the team of special counsel Robert S. Mueller III.

And MoJo hilariously suggests we might only now, in the trial, establish rock solid proof that Trump lied to Mueller, and doesn’t even account for how some of its own past reporting will be aired at the trial in ways that are far more damning than it imagines.

Here’s why I’m certain these outlets are underestimating how damning this trial will be.

Along with stipulating the phone and email addresses of Erik Prince and Steve Bannon (meaning communications with them could be entered into evidence even without their testimony, though Bannon has said he expects to testify), the government plans to present evidence pertaining to four direct lines to Trump and three to his gatekeepers.

One way prosecutors will use this is to show that, when Trump told Rick Gates that more emails were coming after getting off a call he got on the way to Laguardia, he did so after speaking directly to Roger Stone. They’ll also date exactly when a call that Michael Cohen witnessed happened, after which Trump said the DNC emails would be released in upcoming days got put through Rhona Graff.

It’s not so much that we’ll get proof that Trump lied to Mueller (and not just about what he said to Stone), though we will absolutely get that, but we’ll get proof that Trump was personally involved in what Mark Meadows considers “collusion.”

The Mueller Report and the ongoing criminal investigations

Both Mueller critics and denialists are also forgetting (and, in some cases, obstinately ignorant) about what the Mueller Report actually represented.

We don’t know why Mueller submitted his report when he did — though there is evidence, albeit not yet conclusive, that Barr assumed the position of Attorney General planning to shut the investigation down (indeed, he even has argued that once Mueller decided he could not indict Trump — which was true from the start, given the OLC memo prohibiting it — he should have shut the investigation down).

A lot has been made of the investigative referrals in the Mueller Report, of which just 2 (Cohen and Greg Craig) were unredacted. We’ve seen just one more of those thus far, the prosecution of George Nader for child porn, a prosecution that may lead Nader to grow more cooperative about other issues. Some of the (IMO) most revealing details in the weekend’s dump were b7ABC FOIA exemptions for materials relating to Alexander Nix and Michael Caputo. Normally, that redaction is used for upcoming criminal prosecutions, so it could be that Nix and Caputo will have a larger role in Stone’s trial than we know. But it also may mean that there is an ongoing investigation into one or both of them.

In addition, investigations of some sort into at least three of Trump’s aides appear to be ongoing.

It is a fact, for example, that DOJ refused to release the details of Paul Manafort’s lies — covering the kickback system via which he got paid, his efforts to implement the Ukraine plan pitched in his August 2, 2016 meeting, and efforts by another Trump flunkie to save the election in the weeks before he resigned — because those investigations remained ongoing in March. There’s abundant reason to think that the investigation into Lev Parnas and Igor Fruman and Rudy Giuliani, whether it was a referral from Mueller or not, is the continuation of the investigation into Manafort’s efforts to help Russia carve up Ukraine to its liking (indeed, the NYT has a piece on how Manafort played in Petro Poroshenko’s efforts to cultivate Trump today).

It is a fact that the investigation that we know of as the Mystery Appellant started in the DC US Attorney’s office and got moved back there (and as such might not even be counted as a referral). What we know of the challenge suggests a foreign country (not Russia) was using one of its corporations to pay off bribes of someone.

It is a fact that Robert Mueller testified under oath that the counterintelligence investigation into Mike Flynn was ongoing.

KRISHNAMOORTHI: Since it was outside the purview of your investigation your report did not address how Flynn’s false statements could pose a national security risk because the Russians knew the falsity of those statements, right?

MUELLER: I cannot get in to that, mainly because there are many elements of the FBI that are looking at different aspects of that issue.

KRISHNAMOORTHI: Currently?

MUELLER: Currently.

That’s consistent with redaction decisions made both in the Mueller Report itself and as recently as last week.

It is a fact that when Roger Stone aide Andrew Miller testified, he did so before a non-Mueller grand jury. When Miller’s lawyer complained, Chief Judge Beryl Howell reviewed the subpoena and agreed that the government needed Miller’s testimony for either investigative subjects besides Stone or charges beyond those in his indictment. Indeed, one of the most interesting aspects of Mueller’s statement closing his investigation is the way it happened as Miller was finally agreeing to testify, effectively ensuring that it would happen under DC, not Muller.

Again, these are all facts. No matter how badly Glenn Greenwald desperately wants to — needs to — spin knowing actual facts about ongoing investigations as denial, it is instead basic familiarity with the public record (the kind of familiarity he has never bothered to acquire). At least as of earlier this year — or last week! — there has been reason to believe there are ongoing investigations into three of Trump’s closest advisors and several others who helped him get elected.

At least two of those investigations continue under grand juries, impaneled in March 2019, that Chief Judge Beryl Howell can extend beyond January 20, 2021.

Why Mueller closed up shop

Nevertheless, it is indeed the case that Mueller closed his investigation after producing a report that showed abundant obstruction by the President, but stated that his investigation “did not establish” that the Trump campaign engaged in coordination or conspiracy with Russia, including regarding a quid pro quo.

In particular, the investigation examined whether these contacts involved or resulted in coordination or a conspiracy with the Trump Campaign and Russia, including with respect to Russia providing assistance to the Campaign in exchange for any sort of favorable treatment in the future. Based on the available information, the investigation did not establish such coordination.

I’d like to end this post with speculation, one not often considered by those bitching about or claiming finality of the Mueller investigation.

In his closing press conference, Mueller emphasized two things: he saw his job as including “preserving evidence” against the President, and he noted that under existing DOJ guidelines, the President cannot be charged until after he has been impeached.

First, the opinion explicitly permits the investigation of a sitting President because it is important to preserve evidence while memories are fresh and documents are available. Among other things, that evidence could be used if there were co-conspirators who could now be charged.

And second, the opinion says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting President of wrongdoing.

In Mueller’s explanation of why he didn’t hold out for an interview with Trump, he said that he weighed the cost of fighting for years to get that interview versus the benefit of releasing a report  with “substantial quantity of information [allowing people] to draw relevant factual conclusions on intent and credibility” when he did.

Beginning in December 2017, this Office sought for more than a year to interview the President on topics relevant to both Russian-election interference and obstruction-of-justice. We advised counsel that the President was a ” subject” of the investigation under the definition of the Justice Manual-“a person whose conduct is within the scope of the grand jury’s investigation.” Justice Manual § 9-11.151 (2018). We also advised counsel that”[ a]n interview with the President is vital to our investigation” and that this Office had ” carefully considered the constitutional and other arguments raised by . .. counsel, and they d[id] not provide us with reason to forgo seeking an interview.” 1 We additionally stated that “it is in the interest of the Presidency and the public for an interview to take place” and offered “numerous accommodations to aid the President’s preparation and avoid surprise.”2 After extensive discussions with the Department of Justice about the Special Counsel’s objective of securing the President’s testimony, these accommodations included the submissions of written questions to the President on certain Russia-related topics. 3

[snip]

Recognizing that the President would not be interviewed voluntarily, we considered whether to issue a subpoena for his testimony. We viewed the written answers to be inadequate. But at that point, our investigation had made significant progress and had produced substantial evidence for our report. We thus weighed the costs of potentially lengthy constitutional litigation, with resulting delay in finishing our investigation, against the anticipated benefits for our investigation and report. As explained in Volume II, Section H.B., we determined that the substantial quantity of information we had obtained from other sources allowed us to draw relevant factual conclusions on intent and credibility, which are often inferred from circumstantial evidence and assessed without direct testimony from the subject of the investigation.

I take that to mean that Mueller decided to end the investigation to prevent Trump’s refusals to testify to delay the release of the report for two years.

In his testimony, Mueller agreed, after some very specific questioning from former cop Val Demings, that Trump was not truthful in his answers to Mueller.

DEMINGS: Director Mueller, isn’t it fair to say that the president’s written answers were not only inadequate and incomplete because he didn’t answer many of your questions, but where he did his answers show that he wasn’t always being truthful.

MUELLER: There — I would say generally.

She laid out what I have — that Trump refused to correct his lies about Trump Tower Moscow, as well as that he obviously lied about his coordination on WikiLeaks. So lies are one of the things the Mueller Report documents for anyone who reads it attentively.

But Trump’s obstruction extends beyond his lies. His obstruction, as described in the Report, included attempts to bribe several different witnesses with pardons, including at minimum Manafort, Flynn, Cohen, and Stone (those aren’t the only witnesses and co-conspirators the evidence shows Mueller believes Trump bribed with promises of pardons, but I’ll leave it there for now).

So here’s what I think Mueller did. I suspect he ended his investigation when he did because he was unable to get any further so long as Trump continued to obstruct the investigation with promises of pardons. So long as Trump remains President, key details about what are egregious efforts to cheat to win will remain hidden. The ongoing investigations — into Manafort and Stone, at a minimum, but possibly into others up to and including the President’s son — cannot go further so long as any prosecutorial effort can be reversed with a pardon.

That said, some of those details will be revealed for the first time starting this week, in the Stone trial. And, if the Parnas and Fruman influence operation is, indeed, related to Manafort’s own, then Trump’s personal criminal involvement in that influence operation is being revealed as part of a parallel impeachment inquiry.

Which is to say that I suspect Mueller got out of the way to allow investigations that cannot be fully prosecuted so long as Trump remains President to continue, even as Congress starts to do its job under the Constitution. And Congress has finally started doing so.

The Guy Who Defended Roger Stone’s Campaign Finance Shenanigans Did Not Testify to the Grand Jury

In response to an order from DC Chief Judge Beryl Howell, the government has revealed the two witnesses of interest to Congress who did not testify to the grand jury. The first, Don Jr, should not surprise anyone who has been following closely, as that was clear as soon as the Mueller Report came out.

The other–Don McGahn–is far more interesting, especially since he was interviewed on five different occasions: November 30, December 12, December 14, 2017; March 8, 2018; and February 28, 2019.

Most likely, the reason has to do with privilege, as McGahn’s testimony, more than almost anyone else’s, implicated privilege (in part because many witnesses’ testimony cut off at the transition). McGahn ended up testifying far more than Trump knew, and it’s possible he did that by avoiding a subpoena, but had he been subpoenaed, it would provide the White House opportunity to object.

Elizabeth De la Vega said on Twitter it likely had to do with how valuable McGahn was in his five interviews. By not making him testify to the grand jury, she argued, you avoid creating a transcript that might undermine his credibility in the future. That’s certainly consistent with the Mueller Report statement finding McGahn to be “a credible witness with no motive to lie or exaggerate given the position he held in the White House.” But that reference is footnoted to say, “When this Office first interviewed McGahn about this topic, he was reluctant to share detailed information about what had occurred and only did so after continued questioning.” Plus, while McGahn testified more than any other witness not under a cooperation agreement, Steve Bannon and Hope Hicks testified a bunch of times, too (four and three times respectively), but were almost certainly put before the grand jury.

But there is a different, far more intriguing possibility.

First, remember that Roger Stone was investigated for more than lying to Congress (indeed, just the last four warrants against him, all dating to this year, mentioned just false statements and obstruction). Which crimes got named in which warrants is not entirely clear (this government filing and this Amy Berman Jackson opinion seem to conflict somewhat). Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(2)(C), was named in all Stone’s warrants before this year. But at least by August 3, 2018, the warrants against Stone listed a slew of other crimes:

  • 18 U.S.C. § 3 (accessory after the fact)
  • 18 U.S.C. § 4 (misprision of a felony)
  • 18 U.S.C. § 371 (conspiracy)
  • 18 U.S.C. §§ 1505 and 1512 (obstruction of justice)
  • 18 U.S.C. § 1513 (witness tampering)
  • 18 U.S.C. § 1343 (wire fraud)
  • 18 U.S.C. § 1349 (attempt and conspiracy to commit wire fraud)
  • 52 U.S.C. § 30121 (foreign contribution ban)

For whatever reason, the government seems to have decided not to charge CFAA (if, indeed, Stone was the actual target of that investigation). They may have given up trying to charge him for encouraging or acting as an accessory after the fact.

The Mueller Report explains — albeit in mostly redacted form — what happened with the 52 U.S.C. § 30121 investigation. First Amendment and valuation concerns about a prosecution led Mueller not to charge it, even though he clearly seemed to think the stolen emails amounted to an illegal foreign campaign donation.

But that leaves wire fraud and conspiracy to commit wire fraud. During the month of August 2018, DOJ obtained at least 8 warrants relating to Stone including wire fraud. Beryl Howell — who in her order requiring the government unseal McGahn’s name, expressed puzzlement about why Don McGahn didn’t testify before the grand jury — approved at least five of those warrants. Rudolph Contreras approved one and James Boasberg approved two. So apparently, very late in the Stone investigation, three different judges thought there was probable cause Stone and others engaged in wire fraud (or tried to!).

And it’s not just those judges. Roger Stone’s aide, Andrew Miller, was happy to testify about WikiLeaks and Guccifer 2.0. But at least when his subpoena first became public, he wanted immunity to testify about the campaign finance stuff he had done for Stone.

Miller had asked for “some grant of immunity” regarding financial transactions involving political action committees for which he assisted Stone, according to Alicia Dearn, an attorney for Miller.

On that issue, Miller “would be asserting” his Fifth Amendment right to refuse to answer questions, Dearn said.

I’d like to consider the possibility that McGahn, Donald Trump’s campaign finance lawyer before he became White House counsel, was happy to testify about Trump’s attempt to obstruct justice, but less happy to testify about campaign finance issues.

Mind you, McGahn is not one of the personal injury lawyer types that Stone runs his campaign finance shenanigans with. Whatever else he is, McGahn is a professional, albeit an incredibly aggressive one.

That said, there are reasons it’s possible McGahn limited what he was willing to testify about with regards to work with Stone.

At Roger Stone’s trial the government plans (and has gotten permission) to introduce evidence that Stone lied about one additional thing in his HPSCI testimony, one that wasn’t charged but that like one of the charged lies, involves hiding that Stone kept the campaign in the loop on something.

At the pretrial conference held on September 25, 2019, the Court deferred ruling on that portion of the Government’s Notice of Intention to Introduce Rule 404(b) evidence [Dkt. # 140] that sought the introduction of evidence related to another alleged false statement to the HPSCI, which, like the statement charged in Count Six, relates to the defendant’s communications with the Trump campaign. After further review of the arguments made by the parties and the relevant authorities, and considering both the fact that the defendant has stated publicly that his alleged false statements were merely accidental, and that he is charged not only with making individual false statements, but also with corruptly endeavoring to obstruct the proceedings in general, the evidence will be admitted, with an appropriate limiting instruction. See Lavelle v. United States, 751 F.2d 1266, 1276 (D.C. Cir. 1985), citing United States v. DeLoach, 654 F.2d 763 (D.C. Cir. 1980) (given the defendant’s claim that she was simply confused and did not intend to deceive Congress, evidence of false testimony in other instances was relevant to her intent and passed the threshold under Rule 404(b)). The Court further finds that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

A September hearing about this topic made clear that it pertains to what Stone’s PACs were doing.

Assistant U.S. Attorney Michael J. Marando argued that Stone falsely denied communicating with Trump’s campaign about his political-action-committee-related activities, and that the lie revealed his calculated plan to cover up his ties to the campaign and obstruct the committee’s work.

It sounds like Stone cleared up this testimony (Stone sent two letters to HPSCI in 2018, and one of those would have come after Steve Bannon testified about emails that included a Stone demand that Rebekah Mercer provide him funding), which may be why he didn’t get charged on that front.

As I’ve suggested, if Stone was actively trying to deny that the work of his PACs had any interaction with the Trump campaign, it might explain why he threatened to sue me when I laid out how McGahn’s continued work for Trump related to Stone’s voter suppression efforts in 2016.

And remember: when Stone aide Andrew Miller did finally testify — after agreeing to at virtually the moment Mueller announced he was closing up shop — he did so before a new grand jury, after Beryl Howell agreed with prosecutors that they were in search of evidence for charges beyond what Stone had already been indicted on or against different defendants.

McGahn’s campaign finance work for Stone and Trump is one of the things he’d have no Executive Privilege claims to protect (though barring a showing of crime-fraud exception, he would have attorney-client privilege), since it all happened before inauguration.

Again, there are lot of more obvious explanations for why he didn’t testify before the grand jury. But we know that Mueller investigated these campaign finance issues, and we know McGahn was right in the thick of them.