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Ruby Freeman’s Revenge: Rudy’s Blobs and Bernie’s Glitches

July 25, 2023/96 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

The other day I had the privilege of receiving an angry response from pardoned felon Bernie Kerik to a Twitter (Xitter?) thread I wrote in response to this article, which puzzled through why Bernie had an interview scheduled next month if Jack Smith already sent Trump a target letter.

Bernie’s Tweet was an attempt to explain how he was responding to a subpoena with a delay. It was not a denial of my larger thread, which I’ll return to.

The pardoned felon has posted a similar Tweet in response to this article, which describes that, “Bernie Kerik has been engaged in a legal battle over turning over documents” but claims, “He’s finally cooperating,” pointing in part to a filing in the Ruby Freeman case over the weekend as evidence of cooperation.

For those of you responding to this article believing there’s some nefarious stuff going on, I hate to break it to you, but it’s exactly what the article says.

To clarify, I was subpoenaed several months ago and cooperated with that subpoena, giving the Special Counsel the documents that I could.

Any document covered under attorney-client privilege, or executive privilege, was held until my attorney @timparlatore/@ParlatoreLaw, recently received the appropriate waivers from President Trump to allow us to relinquish those documents to the Special Counsel.

No one has flipped, no one is selling out Trump or Giuliani.

This is about giving the Special Counsel the evidence that the legal team collected under the supervision of @RudyGiuliani, and was reviewing in the aftermath of the 2020 election relating to voter/election fraud, and improprieties in that election.

Those conspiracy theorists and haters with #TDS, please go find a hobby, instead of promoting lies and disinformation.

Bernie seems determined to explain that compliance with a subpoena — which he claims was delayed due to Trump’s privilege claims — does not equate to flipping.

I’m sure it doesn’t. Too many diehard Trump dead-enders have participated in what are being called proffers — Boris Epshteyn, then Rudy, Mike Roman, and now Bernie — for them to be preludes to a flip. I think the press is simply misunderstanding how Smith is using those proffers.

But he also seems intent on spinning how this “cooperation” came about.

As far as we know, Jack Smith’s visibility into what Rudy and Bernie were up to came via a process that looked something like this:

April 2021 to unknown: Seizure of Rudy’s phones on April 28, 2021 and at some unknown point thereafter sharing of fully privilege reviewed documents with January 6 investigators
Early 2022: Covert collection of metadata and cloud content
May, June, September, and November 2022: A series of subpoenas naming both Rudy and Bernie served on fake electors and other electoral shenanigans
September 2022: Seizure of Boris Ephsteyn and Mike Roman’s phones
November 2022: Rudy subpoena limited to Trump’s fundraising and spending
“Several months ago”: Bernie subpoena
April 20-21: Proffer session with Boris Ephsteyn
Week of June 19: Two day proffer session for Rudy with Jack Smith’s prosecutors
Mid-August: Anticipated proffer session for Bernie

At least three of Bernie’s closest associates have had their phones exploited, albeit via privilege reviews conducted using at least two different methods (the Special Master in Rudy’s case, and unknown means with Epshteyn and Roman). Based on how much got destroyed, Smith should have pretty good idea of what Bernie was up to.

But he subpoenaed him several months ago anyway.

For much of that period, Ruby Freeman has been suing Rudy for the false claims he made about her actions in the Fulton County vote count process. In October 2022, Beryl Howell rejected Rudy’s motion to dismiss and discovery has been going on more than a year.

In recent months, Freeman’s lawyers have filed a series of motions revealing the various methods by which Rudy and Bernie have been blowing off the lawsuit, which generally have consisted of relying on productions they made (or did not) for the January 6 Committee and other lawsuits, while (in Rudy’s case) claiming to have no access to the devices that got seized:

April 10: A status report describing how Rudy still claimed to have nothing
April 17: A motion to compel describing that Rudy was still relying on his earlier production and had not searched the archive of his seized devices, held by Trust Point, which Rudy would claim included all relevant communications from the time; the motion revealed Rudy had provided some documents on Hunter Biden
June 9: A motion to compel Bernie describing extensive efforts to refuse service and recent claims that a “technical glitch” prevented him from sharing documents with Rudy for a more detailed privilege review; it included the privilege log Bernie used with the January 6 Committee, which he had “reactivated” in August 2022
July 5: A response to Bernie’s bid to avoid compulsion that pointed to several ways his compliance was still insufficient; it included this privilege log which he turned over June 28
July 11: A motion for sanctions against Rudy that points to several communications from others that Rudy had not included on this privilege log, which dates to October 2022

A few highlights matter from this. First, Rudy and Bernie have two different sets of almost exclusive documents; there should be a great deal of overlap between these submissions, but there is virtually none. I’ll show in a follow-up, but Rudy claims to have almost no emails (including the several gmail accounts the government could have obtained without his knowledge). Bernie claims to have almost no texts.

The men adopted inconsistent approaches in the depositions, with Rudy answering more than Bernie, including on basic details about how Rudy’s team operated.

Freeman’s team claims that Rudy’s lawyer Joe Sibley conceded on May 19 that meetings in anticipation of lobbying aren’t privileged.

THE COURT: Okay. Well, I just want to be sure that you understand the law in this Circuit. The Circuit has made it clear in In re Lindsey — all the way back to 1998 — that it’s only legal advice that’s subject to the privilege, not a lawyer’s advice on political, strategic, or policy issues; that would not be shielded from disclosure by the attorney-client privilege.

[snip]

JOE SIBLEY: We actually did not claim privilege on some of the meetings that Mr. Giuliani had with staff members and things like that before these Georgia hearings because, after looking at it, this was not in anticipation of litigation but in anticipation of presenting at a hearing which would not be privileged. So we withdrew privilege assertions on that basis.

In the motion for sanctions, Freeman’s team disclosed that the things Rudy turned over from Trust Point, most were unusable for technical or content reasons, including the prevalence of “blobs” Rudy blames on DOJ corruption of the files.

Of those txt files, 2,350 are completely non-readable, non-usable computer files known as “blobs.” Id. In his position statement, Defendant Giuliani opined that, in his nonexpert view, the large volume of blank and/or non-responsive documents in his June 16 production of materials from TrustPoint “appears to be a result of file corruption resulting from the DOJ seizure.” ECF No. 77 at 20. The non-txt files are overwhelmingly non-responsive junk including: non-readable computer code; emails advertising a year-long spiritual apprenticeship course; informational packets regarding Microsoft auto-updates (in five different languages); articles and memes about George Floyd; and death notices from The Washington Post.

From the start it seems that Rudy and Bernie attempted to blow off Freeman’s team altogether, perhaps to minimize their criminal exposure, perhaps out of sheer contempt for the women whose lives they allegedly ruined.

But Beryl Howell (who I can’t help but remember, has seen what DOJ did with January 6 grand juries prior to April) chipped away at those efforts. She has excluded lobbying from privilege claims (which may represent a narrowing over what was adopted in SDNY). She has imposed sanctions on Rudy for blowing this off, is close to doing the same for Bernie. She has threatened to impose still more sanctions, potentially including contempt or default, on Rudy. At some point, even in this civil case, Rudy’s risks go beyond financial.

And all the while, Rudy and Bernie’s efforts to blow this off without expanding their potential exposure to obstruction in the January 6 investigation may have backfired. At the very least, they seem to have narrowed the scope of Bernie’s potential privilege claim and expanded his disclosure requirements.

On June 7, Bernie’s lawyer Tim Parlatore told Freeman’s lawyers, “there are other more pressing matters that have taken priority.”

Perhaps. Or perhaps Bernie made those other matters more pressing in an attempt to blow Freeman off. And that’s before you get into the conflicts between their discovery.

Dry Run: The Filing Room Came to Trump

Given the reports that former Trump spox Taylor Budowich was questioned by the head of counterintelligence Jay Bratt before a Florida grand jury today, it’s worth revisiting the public statement included in the August 2022 search affidavit to search Mar-a-Lago (my emphasis).

He released this statement after NARA’s discovery of classified documents was made public.

He specifically denied that “the President of the United States, was working in a filing room.”

This earlier response to the NARA appears to be the “dry run” that Beryl Howell invoked in her opinion finding a crime-fraud exception for Evan Corcoran’s interactions with Trump in advance of Trump’s defiance of the May 11 subpoena.

When the chief US judge Beryl Howell forced Corcoran to testify to a grand jury, she opined in a 86-page legal memo that she believed when Trump went through boxes to give materials back to the National Archives last year, it was “apparently a dress rehearsal” for the subpoena.

The Post attributed the “dress rehearsal” line to officials, though it was in Howell’s legal opinion that was reported in March.

We also know that DOJ obtained 5 months of surveillance footage, going back to 8 days before Trump returned these classified documents.

So it may well be that much of what has happened since has involved an attempt to hide that, yes, Trump really was working in a filing room (or at the very least, a filing room came to him).

Update: Hugo Lowell is the first major person covering this stuff to confirm that Trump was told he’s a target. This will all solidify in days ahead. For the moment I’m interested in the timing. He would have been told last week he was a target, and then NYT published their rebuttal of his work, and then Trump’s lawyers either went and did a standard pitch or spewed a conspiracy theory (which John Solomon is pushing).

In other words, what we say in the last 4 days is a response to the target notification.

Rudy’s Very Bad Week

May 20, 2023/57 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel /by emptywheel

Three things happened with Rudy Giuliani’s legal woes this week that could have larger repercussions.

As the Philly Inquirer reported, Bruce Castor, the sole noticed attorney in one of the voter fraud lawsuits against Rudy from 2020, asked to be relieved. The Inky lays out how people close to Trump asked Castor to sponsor Joseph Sibley Pro Hac Vice into Philadelphia, only to have Sibley refuse to sign something and then back out of the case, leaving Castor holding the bag. Castor complains that he hasn’t gotten paid and hasn’t gotten Rudy to cooperate at all on discovery.

But a more interesting detail may be that some unnamed lawyer recently contacted Castor to inform him he would pay for the representation, but would do nothing to secure cooperation from Rudy.

23. A lawyer, previously unknown to Petitioner, wrote to Petitioner portraying that he represented Mr. Giuliani, and Petitioner immediately inquired in a response writing when this lawyer would be assuming responsibility for defending the present case.

24. Instead, the lawyer wrote Petitioner that he would be coordinating funding for Defendants, that payment would be forthcoming, but that Defendants expected Petitioner to conduct their defense.

[snip]

26. Petitioner advised the lawyer, who contacted him to relate that funding for the Defendants was forthcoming, of the motion to compel discovery, and pleaded with him to solicit substantive cooperation from Defendants (since this lawyer evidently was in contact with Defendants), in addition to simply the payment of Petitioners’ fees. Petitioner also continued to contact Defendants directly to keep them informed of developments, such as the motion to compel, further demands for payment of the retainer, and to seek cooperation in the discovery process. Petitioner unequivocally threatened both the newly revealed lawyer who was promising funding, and Defendants that he would file the instant motion to withdraw if Defendants failed to comply with Petitioner’s demands by a certain deadline. [emphasis original]

This is a plea by Castor not to have to represent an uncooperative defendant for free. But it also reads like a plea by Castor not to force him to risk his legal reputation in a situation where shady lawyers call up out of the blue and promise to pay respectable lawyers to stall a case.

Sibley, the guy who was supposed to represent this case in Philly and who also represented Christina Bobb before the January 6 Committee, remains Rudy’s lawyer of record in Ruby Freeman’s lawsuit in DC, which I wrote about here. Depending on your vantage point, it either seems that Sibley is having as much trouble as Castor is getting Rudy’s cooperation, or that the lawyer has successfully stonewalled discovery so as to avoid increasing Rudy’s criminal liability.

I should say, had successfully stonewalled.

Yesterday, Judge Beryl Howell issued an order requiring certain cooperation from Rudy, including that he list all his devices, social media accounts, and financial assets on which he allegedly defamed Freeman and her daughter, Shaye Moss, with deadlines attached.

MINUTE ORDER (paperless): Upon consideration of plaintiffs’ [44] Motion to Compel Discovery, For Attorneys’ Fees and Costs, and For Sanctions (“Motion”), defendant’s [51] Response to Plaintiffs’ Motion to Compel, plaintiffs’ [56] Reply in Support of Plaintiffs’ Motion, and the parties’ representations to the Court in the proceedings held on May 19, 2023 regarding plaintiffs’ Motion, GRANTING plaintiffs’ Motion in part, and RERSERVING [sic] ruling in part.

Specifically, plaintiffs’ Motion is GRANTED as follows:

1) by May 30, 2023, defendant Rudolph W. Giuliani shall file a declaration, subject to penalty of perjury, that details:

a) All efforts taken to preserve, collect, and search potentially responsive data and locations that may contain responsive materials to all of plaintiffs’ Requests for Production (RFP);

b) A complete list of all “locations and data” that defendant used to communicate about any materials responsive to any of Plaintiffs’ RFPs (including, but not limited to, specific email accounts, text messaging platforms, other messaging applications, social media, devices, hardware, and any form of communication);

c) The specific “data” located in the TrustPoint database, including–

i) a list identifying the source devices from which the data was extracted or obtained;

ii) for each such device, the type of device (i.e., iPhone, Macbook, laptop, iPad, etc.) and user, if known;

iii) a list identifying any social media accounts, messaging applications, and email accounts from which the data was extracted or obtained; and

iv) for each such account and application, the account name and user; and

d) What searches, if any, have occurred as to both categories (b) and (c), see Plaintiffs’ [44-16] Proposed Order Granting Plaintiffs’ Motion; and

2) By May 30, 2023, in order to evaluate defendant’s claim of an inability to afford the cost of access to, and search of, the TrustPoint dataset or to use a professional vendor, either to access the original electronic devices seized from defendant by the Federal Bureau of Investigation in April 2021 and returned to defendant, or, alternatively, to conduct a search of the archived TrustPoint dataset, defendant is DIRECTED to produce to plaintiffs:

a) full and complete responses to plaintiffs’ requests for financial information in RFP Nos. 40 and 41; and

b) documentation to support his estimated costs for further searches on the TrustPoint dataset.

3) By June 16, 2023, plaintiffs are DIRECTED to submit to the Court an assessment of defendant’s ability to bear the cost of further searches, along with any response to defendant’s submission required under paragraph 1, above; and

4) By June 30, 2023, defendant shall file any response to plaintiffs’ submission required under paragraph 3, above.

The Court RESERVES ruling on the remainder of plaintiffs’ relief, pending the parties’ compliance with directions set out in paragraphs 1) through 4), above. Signed by Judge Beryl A. Howell on May 19, 2023.

In two weeks, if and when Rudy continues to stonewall, then Judge Howell will start imposing penalties on him.

The 3-hour hearing that led to this order was as interesting for the insane comments Rudy made outside the courthouse as anything else. The guy who helped Trump attempt a coup complained that he is being persecuted by fascists. And he claimed that he faces no legal risk from either the Jack Smith investigation or the Fani Willis one, in the latter of which he was already specifically named as a target.

Outside the courthouse following the hearing, Giuliani said he hadn’t received any communication from Justice Department Special Counsel Jack Smith’s office and wasn’t worried about federal charges since he cooperated with investigators immediately after the Jan. 6, 2021, attack on the US Capitol.

Asked if he had any pending federal grand jury subpoenas, he replied, “not that I know of.”

Regarding a separate probe into efforts by former President Donald Trump and allies to overturn Georgia’s 2020 election results by the Fulton County district attorney’s office, Giuliani said he wasn’t worried because he was serving as an attorney at the time. Last summer, his lawyer confirmed that they’d received notice Giuliani was a target of that probe.

He said on Friday that he hadn’t heard anything from that office since he appeared before a special investigative grand jury in August 2022; District Attorney Fani Willis recently indicated that charges could come later this summer.

Sure, Pops. A judge found crime-fraud exception over a year ago, and you’re in no danger because you’re a lawyer.

Side note: I find it interesting that Robert Costello, who represented Rudy in the Ukraine investigation and before the January 6 Committee and who was involved in the “Hunter Biden” “laptop” caper, has not sued Rudy for payment. He did sue Bannon, for what must be far less unpaid work. Maybe some shady lawyer showed up and found a way to pay Costello too?

Finally, against the background of 1) the lawsuits that Rudy appears to be attempting to stonewall for free, 2) the twin criminal investigations that are expected to start issuing indictments no later than August, and 3) Trump’s attempt to win the presidency again, a former Rudy associate, Noelle Dunphy, filed a lawsuit against Rudy for sexual assault and harassment and unpaid labor going back to 2019.

This lawsuit is — and it is designed to be — eye-popping, alleging lots of drunken coerced sex, some bigotry and kink caught on tape, as well as allegations that implicate Trump just in time for campaign season.

Just as one example, Dunphy makes an allegation that exactly matches a John Kiriakou claim about Rudy selling pardons for $2 million, but unlike some of her other allegations, she doesn’t claim to have proof.

132. He also asked Ms. Dunphy if she knew anyone in need of a pardon, telling her that he was selling pardons for $2 million, which he and President Trump would split. He told Ms. Dunphy that she could refer individuals seeking pardons to him, so long as they did not go through “the normal channels” of the Office of the Pardon Attorney, because correspondence going to that office would be subject to disclosure under the Freedom of Information Act.

And the allegation is not tied, in any way, to the complaints in the lawsuit. But it is one thing that has ensured the lawsuit will attract a lot of attention.

I’m sure many of the claims made in this suit are true, but packaged up as it is, it feels too convenient, just like the “Hunter Biden” “laptop.”

What makes that analogy even more apt, in my own humble opinion, is that the period during which Dunphy most credibly claims to have had damaging contact with Rudy largely overlaps with the period in which Rudy was hunting dirt in Ukraine to help Trump win the presidency, from January 21 through November 2019. She claims to have reviewed his interview with Viktor Shokin as well as his plan to accuse Marie Yovanovitch of corruption. Throughout that period, she claims have been involved in the shady pitches he received. One of those pitches — one she recorded! — involved a $72 billion gas deal in China.

See what I mean about how it feels like the “Hunter Biden” “laptop”?

Meanwhile, she suggests she’s a first-hand witness to matters that were part of the Ukraine investigation into Rudy, and that Rudy coached her to obstruct justice. She says she and Rudy discussed whether he had an obligation to register under FARA — and as proof, she included a photo from a February 9, 2019 meeting with Lev Parnas.

A week later, she claims, after reviewing the emails he had exchanged with various Ukrainian officials, she offered to file a FARA registration for Rudy, but he declined because, he said, he had immunity.

Perhaps most incredible, she claimed that in June and July of 2019, the guy who had just spent a year helping Trump dodge obstruction of justice charges, “asked Ms. Dunphy for help Googling information about obstruction of justice, among other topics.” I don’t doubt that that search exists in her Google account, but I do question whether it got there in the way she describes.

That same period, she claims, is when he first instructed her not to talk to the FBI about him — at a time when the investigation into Parnas and Igor Fruman was not yet public.

Dunphy claims that on October 22, 2019 — after the arrest of Parnas and Fruman but at a time when (at least according to SDNY’s subsequent claims) the investigation into Rudy was not overt — the FBI called and asked for an interview.

209. On October 22, 2019, Ms. Dunphy received a voicemail from the FBI regarding an investigation they were conducting into Giuliani. The FBI was apparently aware that she was working for Giuliani and sought to interview her. The FBI was clear that Ms. Dunphy was considered a witness and was not a target of the investigation.

Nowhere in this 70-page lawsuit does Dunphy say whether she ever was interviewed about all the things she witnessed firsthand when Rudy was soliciting dirt from Ukraine. She does say that within a month, on a day when the FBI showed up in person seeking an interview, Rudy promised to put her on his payroll, seemingly tying that payment to her willingness to claim she didn’t know who he was.

210. On November 19, 2019, Ms. Dunphy went to Giuliani’s home office, and they spoke. Giuliani promised Ms. Dunphy that he would officially put Ms. Dunphy on the books and would “straighten it [i.e., her employment situation] out.” Giuliani and Ms. Dunphy discussed Giuliani’s increasing legal concerns, including his fear that Lev Parnas was “turning on him” in connection with the FBI investigation. Ms. Dunphy told him that the FBI had come to her family’s home in Florida that day seeking to question her. Giuliani informed Ms. Dunphy that his friend and private detective, Bo Dietl, had already told him the specific FBI agents who were involved. Ms. Dunphy was concerned that Giuliani was apparently so powerful that his investigators had secret information, including the names of the FBI agents who had just appeared at her family’s Florida home. Giuliani demanded that Ms. Dunphy not talk to or cooperate with the FBI. Giuliani told Ms. Dunphy that they are all “after him” and that one or two of them are “going to get totally destroyed.” This situation made Ms. Dunphy confused and fearful, and added another layer of tension to a work environment that was already outrageously hostile.13

13 From this point on, Giuliani often spoke to Ms. Dunphy about he FBI’s investigation of him, and Ms. Dunphy understood that participating in these discussions was part of her work for him. He told her that if the FBI sought to interview her, she should “not remember” anything, and should claim that she did not know Giuliani. Ms. Dunphy refused to agree to lie to the FBI, which angered Giuliani.

It’s certainly possible that Bill Barr’s very active obstruction of the investigation at that point — an effort to stave off impeachment, though Dunphy doesn’t mention impeachment — led the FBI to decide not to interview her. But that wouldn’t explain why the FBI wouldn’t interview her in 2021, when the investigation did become overt.

At one level, this lawsuit seems more like an offer to testify to the FBI at a time (have I mentioned there’s an election coming up?) when the statutes of limitation still have a year before they expire.

At another, it’s an implicit threat.

Close to the beginning of the lawsuit, Dunphy reveals that — whether because he thought it’d be a good idea or because he got really drunk and did something stupid — Rudy accessed his work email account from her computer, giving her access to a his email correspondence with a whole lot of corrupt people.

93. Therefore, Giuliani added one of his work email accounts into Ms. Dunphy’s email program on her computer, typing his password onto her computer.

94. Once Giuliani’s email account was loaded onto Ms. Dunphy’s computer, at least 23,000 emails associated with the account, including many from before her employment with Giuliani, were stored on her computer.

95. Since Giuliani gave Ms. Dunphy access to his email account, she had access to information that was, upon information and belief, privileged, confidential, and highly sensitive.

96. For example, Ms. Dunphy was given access to emails from, to, or concerning President Trump, the Trump family (including emails from Donald Trump, Jr., Ivanka Trump, and Eric Trump), Trump’s son-in-law Jared Kushner, former FBI director Louis Freeh, Trump lawyer Jay Sekulow, Secretaries of State, former aides to President Trump such as Steve Bannon, Reince Priebus, and Kellyanne Conway, former Attorneys General Michael Mukasey and Jeff Sessions, media figures such as Rupert Murdoch, Sean Hannity, and Tucker Carlson, and other notable figures including Newt Gingrich, presidential candidates for Ukraine, President Recep Tayyip Erdogan of Turkey, the Ailes family, the LeFrak family, Bernard Kerik, Igor Fruman, Lev Parnas, and attorneys Marc Mukasey, Robert Costello, Victoria Toensing, Fred Fielding, and Joe DeGenova.

97. Ms. Dunphy understood that she was given access to these emails because she was employed by Giuliani and the Giuliani Companies. Indeed, although Giuliani and his surrogates have argued that Ms. Dunphy was not an employee of Giuliani or the Giuliani Companies, it is impossible to understand Giuliani’s decision to give Ms. Dunphy complete access to (and copies of) these sensitive emails in any other context.

98. As a lawyer, Giuliani sent and received emails containing privileged information that could not legally be shared with Ms. Dunphy if she were not an employee or consultant. Likewise, Giuliani’s business often involved highly confidential information, and upon information and belief, there were confidentiality and nondisclosure agreements governing access to some of this information. Upon information and belief, those agreements barred Giuliani from sharing covered confidential information with someone who was not an employee or consultant.

99. Giuliani never asked Ms. Dunphy to sign a non-disclosure or confidentiality agreement.

Dunphy suggests she continued to have access to Rudy’s emails and his social media accounts — the very same social media accounts he is trying to hide from Ruby Freeman — through January 31, 2021.

And, as she notes, Rudy never asked Dunphy to sign a non-disclosure agreement about all this.

The FBI may be seeking this information. Several plaintiffs, including Freeman, definitely are (Dunphy also helpfully includes a summary of the property he owns, including five homes). And nothing prevents her from sharing it with them unless Rudy retroactively claims she was an employee, covered by non-disclosure obligations, through this entire period, with the $2 million payment she claims he promised her to go along with that nondisclosure agreement.

Not just Rudy — but also the entire Trump family (have I mentioned there’s an election coming up?), Rupert Murdoch and some of his star current and former employees, as well as a bunch of lawyers who’ve been involved in some shady shit — all of them have an incentive to retroactively make her status as an employee official, so that she won’t release these communications.

Many of these very same emails would have been unavailable to the FBI under a privilege claim, but unless Dunphy is an employee, then she can hand them over because Rudy waived privilege over them. I can’t decide whether I’m more interested in seeing the emails that might show Jay Sekulow alerted Trump to the false claims that were made on his behalf during the Russian investigation, or the ones that show Hannity was about to board a plane to meet with a mobbed up Russian asset in support of Trump’s 2020 election bid. But if I know of specific emails I’d like to see, then the people named in paragraph 96 surely do as well.

And that, I think, is the point — perhaps a bid to invite some unnamed lawyer to call her, too, to say he can fund certain things.

But such an unnamed lawyer will need to get there before Ruby Freeman does.

Rudy Giuliani Claims He’s Shooting Blank Documents

April 18, 2023/70 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Ruby Freeman and her daughter Shaye Moss have, as Beryl Howell invited them to do, moved to compel Rudy Giuliani to comply with discovery in their defamation lawsuit. The two 2020 Georgia election workers sued for the damage caused by the lynch mob Rudy summoned by falsely claiming they were attempting to steal votes after he saw a video showing Moss passing her mother a ginger mint.

The motion and all its exhibits are here.

What seems to be happening is that Rudy, having had his phones seized in 2021 and successfully avoided — thus far — charges for his Ukraine influence-peddling, is deliberately slow-walking discovery here to avoid identifying any devices or records that prosecutors can use in that investigation, the Georgia investigation, or Jack Smith’s January 6 one, all while sustaining a story that is already starting to fall apart.

As described in the motion to compel, Rudy’s non-compliance has included:

Refusing to turn over any phone or financial records
Refusing to explain what accounts and devices he has included in his searches
Failing to search for texts and messaging apps from the phones seized in 2021
Providing discovery based on much earlier requests from the January 6 Committee and Dominion’s lawsuit against him, rather than the requests from Freeman’s lawyers
Providing documents on Hunter Biden along with one Pentagon City Costco receipt
Others — like Bernie Kerik and Christina Bobb — similarly refusing to comply
Claiming, then disclaiming, reliance on “unknown GOP operatives” for the false claims made about Freeman
Refusing to describe how he became aware of the surveillance footage on which he based his false claims about Freeman and Moss

As a reminder, back on April 21, 2021, DOJ obtained a warrant for around 18 of Rudy’s phones in conjunction with the investigation into Rudy’s Ukrainian influence peddling that Bill Barr had successfully obstructed. By September of that year, DOJ had convinced Judge Paul Oetken to have Special Master Barbara Jones to review all the contents on his phones, not just that pertaining to the Ukraine warrants. Since then, I’ve been arguing that DOJ could — and at this point, almost certainly has — obtained that content for use in the January 6 investigation.

Dominion sued Rudy back in 2021. The January 6 Committee subpoenaed Rudy in January 2022 and interviewed him in May 2022. Those are the discovery requests on which Rudy is attempting to rely in this suit, rather than doing searches specific to the requests made by Freeman’s lawyers.

But after May 2022, Rudy’s exposure in Georgia went up. In addition to Freeman’s lawyers filing their amended complaint on May 10, 2022, Fani Willis convened her grand jury on May 2, 2022, subpoenaed Rudy to testify in June 2022, and he testified in August. It is virtually certain that Rudy gave answers to Willis — at the very least, about what he knew of Trump’s call to Brad Raffensperger on January 2 — that subsequent testimony has since disputed and on which topic he has since amended his interrogatory response.

The materials in this motion reveal that Rudy’s lawyer in this matter (Joe Sibley — who represented Christina Bobb in a J6C deposition that conflicts with Rudy’s answers here, though Robert Costello was present for Rudy’s March deposition) at first promised thousands of documents to Freeman’s lawyers, while claiming that most documents would be unavailable because of the Special Master process tied to the Ukraine investigation. Last July 12, Rudy provided 1,269 documents he had also turned over to Dominion’s much earlier request, which Freeman’s lawyers describe as, “his first and only substantial document production to date.”

Then, on August 3, Robert Costello made a showy announcement that SDNY had ended the Special Master process, which is not the same thing as getting a letter that he’s not a subject of that investigation anymore. Shortly thereafter, Freeman’s attorneys pointed out that the excuse Rudy had been using to limit his discovery in this case was no longer operative. He had the phones that — he claimed — included all his communications from the period during which he had started the conspiracy theories about Freeman.

After that showy announcement from Costello on August 3, things changed dramatically. In September, Sibley told Freeman’s lawyers there were 18,000 documents relevant to discovery in the materials seized from his phone. A month later, he said there were 400. In October, Rudy turned over 177 of those documents, 51 of which were blank. Since then, Sibley seems to have provided answer after answer that amounted to throwing up his hands when describing the state of Rudy’s discovery.

Rudy is quite literally attempting to claim he can only shoot blank documents in hopes of getting through this discovery process.

In his March 2023 deposition, Rudy claimed that the physical phones returned by SDNY — which he says only happened in August — were “wiped out.” What actually seems to have happened is that he hasn’t figured out how to access the content saved to the cloud by discovery vendor TrustPoint, and may not have tried to access the phones themselves, which I believe Costello had publicly claimed to have been returned earlier last year.

But far and away the best way to understand his answers are that, first of all, he and Bobb gave materially inconsistent answers while being represented by Sibley, most notably on the topic of whether they participated in the Brad Raffensperger call, which Bobb said they did and Rudy originally claimed — and presumably claimed to Fani Willis’ grand jury — that they had not.

Just as importantly, Rudy may be aware of both messaging apps and phone accounts that he’s not certain prosecutors in SDNY, Georgia, or DC have identified, so he’s refusing to be forthcoming about all the devices and phone accounts he used. There are probably communications from his phones that Costello successfully claimed were privileged during the SDNY Special Master process, which would be obviously crime-fraud excepted in any proceeding before someone who knows the January 6 investigation well. Prosecutors in both SDNY and DC will be able to tell after a quick review of exhibits included with this motion to compel whether Rudy’s claims about the status of the phone content from TrustPoint are accurate.

And therein lies the risk of the game that Rudy is playing.

This would be an obviously bullshit response before any judge, including Carl Nichols (who is presiding over the much more leisurely Dominion suit against Rudy).

But by luck of the draw, he’s attempting this stunt before Beryl Howell, who even on good days does not suffer fools at all, much less gladly, and who until just a month ago was the Chief Judge presiding over all the grand jury proceedings in DC, including the January 6 investigation. She’s one of just two or three judges who knows whether DOJ asked for and obtained a warrant to get the stuff from Rudy’s phones in SDNY. If they did (and I’d bet a very good deal of money they did), she would have seen an affidavit explaining in what form DC USAO understood that phone content to be, and if they did, she has likely overseen discussions about any further attorney-client protections DOJ had to adhere to. If DC USAO obtained warrants for other cloud content, she might also know about any accounts that Rudy is not disclosing to Freeman, including those whose email and phone accounts Rudy consistently used as a proxy. She likely has a sense of how many phone accounts DOJ has identified for Rudy, none of the call records of which would be subject to attorney-client protection. She may know of other aliases that Rudy used in his assault on the election.

Rudy is pulling this contemptuous stunt in front of the one judge who may know the extent to which he’s bullshitting.

Which may be why, at a few points in Freeman’s Motion to Compel, her attorneys note that they’re only asking for modest relief, basically just leverage to get Rudy to actually answer the questions, as well as attorney fees for their time he has wasted.

But Judge Howell? Well, if she wants to use her discretion to provide expanded relief, Freeman’s lawyers say, they’d be open to that too.

The relief Plaintiffs seek in this Motion is narrow, while recognizing that the Court in its discretion may enter additional forms of relief, including sanctions. Plaintiffs reserve all rights relating to seeking expanded forms of relief in the future.

At this point, there are at least two criminal investigations into Rudy and two civil suits — January 6, Georgia, Dominion, and this suit. Even before reviewing his J6C transcript, it’s easy to identify plenty of ways his evolving answers here, amended in part because of inconsistent testimony given before the J6C, conflict with what he must have answered before the Georgia grand jury, which could start issuing indictments any day.

Juggling all that legal exposure would be difficult for a sober, organized man with little real legal exposure.

For Rudy, though, this insane approach may be, at best, a futile attempt to limit the damage this civil case can do to his criminal exposure.

Lordy, There Are [Transcribed] Tapes

March 21, 2023/85 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

ABC News reports that among the things Beryl Howell ordered Trump’s lawyer, Evan Corcoran, to turn over were “transcriptions of personal audio recordings” involving his representation of Donald Trump.

Sources added that Howell also ordered Corcoran to hand over a number of records tied to what Howell described as Trump’s alleged “criminal scheme,” echoing prosecutors. Those records include handwritten notes, invoices, and transcriptions of personal audio recordings.

It also reported that Howell ordered Jennifer Little, an Atlanta attorney who signed a big challenge to Fani Willis’ investigation into Trump’s attempts to cheat in Georgia, to testify further as well.

Sources told ABC News that Howell ordered Little’s testimony as well, with the exception of one of the topics for which she sought to assert attorney-client privilege.

CNN reports that Trump is appealing this decision.

Pavlov’s Press Corps: Trump Once Again Got Journalists to Willingly Serve as His Incitement Mules

March 19, 2023/92 Comments/in 2016 Presidential Election, Financial Fraud /by emptywheel

When we left the mainstream Trump press corps on Friday afternoon, they were all focused on the decision by Beryl Howell to rule that some of Evan Corcoran’s testimony in the stolen document case was crime-fraud excepted. Sure, there were journalists using wildly exaggerated descriptions for the uniqueness or surprise of the development. But, on Friday, reporters covering Trump’s legal woes were providing factual descriptions of actual newsworthy developments.

At the time, there was a general awareness that an indictment from Alvin Bragg may come next week, but the focus was the stolen documents investigation, in part because some journalists appear to believe that the crime-fraud ruling was some new sign that Jack Smith believed a crime had been committed.

Then, on Saturday morning, on his failing social media platform, the former President tweeted out incitement that included the following, in all caps:

An unsubstantiated claim about illegal leaks probably based on Fox News reporting about efforts to prepare for potential violence as a response to a Trump indictment next week
An attack on Alvin Bragg’s record on crime
A claim Bragg is funded by George Soros, the kind of coded antisemitism Trump is including in virtually all his communications these days
An assertion that he would be charged on something that “numerous other prosecutors!” had debunked as a fairy tale
An overstatement of the degree to which he is leading in polls and an admission that he is the “former” President
A day, Tuesday, when he would be “arrested”
A call to “protest,” invoking one of the same cries used to incite a coup attempt on January 6, “take our country back”

The response was almost instantaneous, with one after another journalist screen-capping the tweet in its entirety, some like Kyle Cheney adding no other commentary other than, “🚨 Trumps says he expects to be arrested Tuesday,” with the siren adding to its inflammatory nature. Jonathan Lemire repeated select newsworthy bits — while still including the full screen cap — without mentioning the coded slur on Soros or labeling the entire tweet as obvious incitement; Lemire parroted Trump’s all caps for the purported timing and quoted the incendiary line also associated with January 6.

NEW: Trump is suggesting that he will be ARRESTED ON TUESDAY due to Manhattan DA probe

This is historic: he would be the first former president to be indicted

He urges his supporters to “Protest, take our nation back!”

The absolutely most hysterical tweet magnifying Trump’s words unfiltered came from Jared Holt, a supposed expert on radicalization online, who introduced Trump’s full tweet onto Twitter (where Trump has not tweeted under his own ID since being permitted back on) with the following:

It will be hard to think of a bigger tech moderation failure than if Trump uses the platforms he’s been allowed back onto (FB, YouTube, Twitter) to incite protests again.

As of this morning, Holt’s tweet, along with the screen cap of Trump’s tweet unfiltered, had garnered 230,000 views on Twitter, over 300 RTs and almost 1,700 likes. Lemire’s had garnered 300 quote tweets, almost 600 RTs, over 2,000 likes, and 1.3M views. Cheney’s had garnered 770 quote tweets, 1,200 RTs, 7,400 likes, and 2.6M views.

By publishing such an inflammatory tweet on Truth Social, Trump was rightly calculating that even people like Holt would help to make his unfiltered words go viral on Twitter, as Trump has consistently done during the period when he still remained banned on Twitter.

It’s like Pavlov’s dogs, pure reflexive behavior at this point: The more incendiary Trump’s tweets, the more quickly journalists rush to disseminate them unfiltered on Twitter.

Remarkably, neither Lemire nor Cheney noted the import of the fact that a habitual liar like Trump was only claiming that he expected to be arrested Tuesday, not that he knew he would be.

In its report on the tweet, NYT noted, even in the subhead, that the timing was unclear, but given that at least one more witness is expected to testify on Monday, a Tuesday arrest is unlikely. It further described that Trump’s team was already in discussions about how to minimize the kind of showy arrest Trump was promising on Truth Social. NYT went on to report how Trump’s team simply guessed the date of his arrest.

His indictment by a Manhattan grand jury is expected, but its timing is unclear.

[snip]

Two hours later, a spokesman issued a statement saying that Mr. Trump had not written his post with direct knowledge of the timing of any arrest,

[snip]

Prosecutors working for Mr. Bragg have signaled that an indictment of Mr. Trump could be imminent. But they have not told Mr. Trump’s lawyers when the charges — expected to stem from a 2016 hush money payment to a porn star — would be sought or an arrest made, people with knowledge of the matter said. At least one more witness is expected to testify in front of the grand jury, which could delay an indictment, the people said.

One of the people said that even if the grand jury were to vote to indict the former president on Monday, a Tuesday surrender was unlikely, given the need to arrange timing, travel and other logistics.

The statement from Mr. Trump’s spokesman did not explain how he had landed on Tuesday as an arrest date. One person with knowledge of the matter said that Mr. Trump’s advisers had guessed that it could happen around then, and that someone might have relayed that to the former president.

A lawyer for Mr. Trump, Susan R. Necheles, said that his post had been based on news reports,

CNN, including Kaitlan Collins, who was among the first to help disseminate this incendiary tweet, later reported on the legal discussions going on inside Trump’s camp.

Trump’s defense team is expected to be notified following any possible indictment and then they would engage in negotiations for surrender and an initial appearance.

Another witness is expected to testify Monday before the grand jury investigating the hush money payments, according to a source familiar with the investigation. It is not clear whether this would be the final witness before it votes on a possible indictment.

Trump’s team has said repeatedly that he will not accept an invitation to testify before the grand jury. But multiple sources familiar with his legal team’s thinking says that if there is an indictment, he would negotiate an agreed upon surrender date with the district attorney’s office.

Trump’s team has been huddled all week planning for various scenarios, including Trump traveling to New York as well as having a remote hearing where he stays at Mar-a-Lago, according to sources familiar with the meetings.

Some members of his legal team are advising Trump to ask for a remote appearance for security reasons should an indictment occur but it is unclear if he would agree to that as he has also discussed with his team wanting to give a statement at the courthouse, sources said.

But before it got to those details, CNN described that the tweet was just a political ploy based off a guess about timing.

The former president has been agitating for his team to get his base riled up and believes that an indictment would help him politically, multiple people briefed on the matter told CNN.

[snip]

Joe Tacopina, an attorney for Trump, later said the former president had based his claims on press reports.

“No one tells us anything which is very frustrating. President Trump is basing his response on press reports,” Tacopina said in a statement to CNN.

In other words, the most newsworthy detail in Trump’s tweet (beyond the incitement) — the day he would be charged — was just made up, a guess based off the same information all the rest of us have. It was nevertheless treated as newsworthy by a slew of journalists needing an excuse to disseminate unfiltered incendiary speech on Twitter. And no one has since gone back to amend their original tweets to note that Trump’s claims to know the date of his arrest were a lie.

Trump’s team simply guessed what day he’ll be charged so as to make a call to fight newsworthy enough for kneejerk journalists to help it go viral for him.

It worked.

It works every single fucking time Trump does this.

Every. Single. Time.

And it’s not just the fact that a bunch of journalists served as willing data mules for Trump’s incendiary tweet, bringing it onto Twitter for him and helping it to go viral in unfiltered form.

It’s the other effect the tweet had on reporting about Trump.

First, everyone completely dropped the significant development in a case that even a number of diehard Republicans think has real gravity, Trump’s refusal to return all the classified documents he stole. That story — a burning story late into Friday — utterly disappeared by Saturday morning. Trump is so good at playing the media that he can effectively just dictate what even CNN and MSNBC will cover. And his tweet managed to make that more damaging investigation — an investigation led by a white man rather than a Black one, and so harder to use to mobilize Trump’s most racist followers — completely disappear from coverage. Journalists who had broken key details about the crime-fraud ruling Friday were instead asked to cover Trump’s tweet on the cable shows on Saturday.

And it wasn’t just cable coverage that Trump’s incendiary tweet managed to dictate. One after another politician — Kevin McCarthy, Mike Pence, Elise Stefanik (who released then deleted multiple drafts before hers was sufficiently dripping in obsequious propaganda) — was forced to comment on the made up news that Trump has a date when he’ll be indicted. Even poor Asa Hutchinson, who was trying hard to launch a Presidential run that didn’t define itself entirely in terms of Trump, was forced to answer multiple questions about Trump’s tweet.

In other words, by releasing the tweet, Trump not only made it the sole focus of cable programming, but made it the leading political question of the day. He made the presidential race about him again, exclusively about him. And in the case of McCarthy and Stefanik — both of whom cling to power by ceaselessly performing their obeisance to Trump — made it a matter of loyalty, a political litmus test that Trump supporters and opponents alike would be required to publicly adhere to.

Finally, all this was done without any mention of the actual facts of the case. All this was done in a way guaranteed to short-circuit rational thought — that’s the point.

To be clear, I don’t know all that many people who are sure this is going to be a substantive indictment, and there are real questions about how it is not time-barred. Perhaps Bragg will surprise us, but even many lefties are skeptical about the legal soundness and wisdom of this indictment.

But the substance of it stems from Trump fucking a sex worker.

He fucked a sex worker then paid her to cover it up. And then, in his efforts to cover that up, Trump engaged in some dodgy corporate accounting. There may be other exacerbating factors, like witness intimidation. But this is about trying to cover up the fact that he fucked a sex worker so it wouldn’t harm his chances of becoming President.

This case involves a crime for which, under Jeff Sessions, SDNY prosecuted Trump’s personal lawyer, Michael Cohen. One reason Trump wasn’t prosecuted as a result is that Bill Barr interfered; Barr even tried to force SDNY to reverse Cohen’s prosecution. And when Cohen went to jail because he refused to cover up Trump’s efforts to cover up fucking a sex worker, Trump cut him off, making him a pariah. Trump’s tweet falsely claimed that multiple prosecutors had deemed this case bullshit when instead he means his own Attorney General engaged in breathtaking corruption to protect him from it.

We don’t know what the indictment includes. But we know it involves fucking a sex worker. And all the journalists repeating Kevin McCarthy’s bullshit comments about investigating this investigation, or Mike Pence’s comments about how measly an indictment this would be, are not making them go on the record about whether they think voters should know if someone is spending significant money — several times what most Trump supporters make in a year — to cover up that they fucked a sex worker. Does Mike Pence, that god-fearing Christian, think a man who paid six figures then engaged in financial fraud to cover up that he fucked a sex worker should be President? Let’s ask him.

That’s not happening, in significant part because Trump has gotten journalists to shed all rationality when reporting on this story. The point is to make this about emotion, not facts, and journalists’ immediate instincts accommodated that.

Because Trump went on offensive, the substance of the indictment — however flimsy or not — has been largely absent from any reporting on the case.

Trump has these journalists trained to act reactively, without taking the time first to figure out whether he was again making shit up (as he was in this tweet). He has these journalists trained to mindlessly help him disseminate antisemitic incitement on platforms he’s not a part of, usually without commentary identifying that’s what he’s doing. Trump is so good at exploiting journalists who know better that he has made them participants in his incitement.

And it could well get people killed.

Updated: Added the circulation numbers for the three tweets disseminating Trump’s incitement.

Beryl Howell’s Biggest Secret: Whether Bill Barr Killed the Egyptian Bank Investigation

March 18, 2023/32 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, January 6 Insurrection, Leak Investigations /by emptywheel

As I noted, Judge Beryl Howell ended her tenure as DC’s Chief Judge yesterday decisively, ruling that Evan Corcoran must testify about topics she has found to be crime-fraud excepted.

By dint of age and tenure, Howell was appointed Chief Judge just in time to preside over the most remarkable set of investigations against a sitting and former President: the Mueller investigation and certain follow-on investigations, the January 6 investigation, and the stolen documents investigation.

And now Jeb Boasberg gets to pick up her work. Like Howell, he’s an Obama appointee; he already did a stint presiding over the FISA Court.

Howell’s decision requiring Corcoran to testify elicited all sorts of superlative language about the import of the decision. I’ll return to the number of other Trump lawyers against whom Howell has already approved legal process. The Corcoran decision really is not that unusual in the twin Jack Smith investigations. Or even in the other grand juries over which Howell has presided.

Indeed, the fruits of a warrant Howell approved on August 1, 2017 as part of an investigation into suspicious payments (especially those from Viktor Vekelselberg) to Michael Cohen’s Essential Consultants’ bank account, will likely yield Donald Trump’s first criminal indictment next week. Referrals of part of the resulting investigation to SDNY led to Cohen’s 2018 prosecution, including on the hush payments scheme. NYC has started making security preparations for Trump’s arrest on the same campaign finance scheme next week.

To repeat: a fairly uncontroversial decision Howell made six years ago — to approve the first of a series of warrants targeting Trump’s personal lawyer, Michael Cohen — will have played a part if and when Alvin Bragg indicts Trump next week.

Howell’s colleagues razzed her yesterday about all the secrets she may keep from the past seven years.

Howell seemed to freeze in her seat as the most senior jurist on the court, Judge Paul Friedman, publicly described her still-secret rulings in grand jury-related matters, pointing to press accounts of Howell ruling in favor of Trump in a contempt dispute over his office’s response to a grand jury subpoena for classified records and against Trump on an effort to assert attorney-client privilege in the same probe.

“What fascinating issues!” Friedman declared wryly as Howell remained stone-faced on the dais. “We’d all love to read her opinions, but we can’t,” he said to laughter.

Friedman did note, however, that Howell had issued 100 secret grand jury opinions during her seven-year term.

Another colleague, Judge Tanya Chutkan, also alluded to Howell’s work resolving disputes related to the court’s grand juries over the past seven years.

“There’s so much work Chief Judge Howell has done that we may never know about,” Chutkan said.

In an interview with Zoe Tillman, though, Howell suggested she expects some of it will be unsealed.

Howell said she was still processing the past seven years.

“A lot of my work in the grand jury arena remains under seal, so it is going to be very hard to say what my legacy will be until after some of that work gets unsealed and people are able to evaluate it,” she said.

I expect a good deal of her recent work will be unsealed, in fairly short order.

It bears reminding, though, that Judge Howell attempted to share information about what she had been overseeing in a grand jury with the House Judiciary Committee in 2019. In a 75-page opinion invoking the Federalist papers and defending separation of powers, Howell issued a ruling that should have been uncontroversial: that the House could have grand jury materials in contemplation of impeachment.

In her opinion, Howell cited a number of the things the House might get with grand jury testimony. They included Paul Manafort’s description of how Trump ordered him to chase the documents stolen from Hillary.

Again, the Mueller Report recounts an incident when then-candidate Trump spoke to associates indicating that he may have had advance knowledge of damaging leaks of documents illegally obtained through hacks by the Russians, stating “shortly after WikiLeaks’s July 22, 2016 release of hacked documents, [Manafort] spoke to Trump [redacted]; Manafort recalled that Trump responded that Manafort should [redacted] keep Trump updated. Deputy campaign manager Rick Gates said that . . . Manafort instructed Gates [redacted] status updates on upcoming releases. Around the same time, Gates was with Trump on a trip to an airport [redacted], and shortly after the call ended, Trump told Gates that more releases of damaging information would be coming.” Id. at II-18 (footnotes omitted) (redactions in original, with citation in footnote 27 redacted due to grand jury secrecy).

They included Don Jr’s refusal to testify to the grand jury about the June 9 meeting.

[A] discussion related to the Trump Tower Meeting contains two grand jury redactions: “On July 12, 2017, the Special Counsel’s Office [redacted] Trump Jr. [redacted] related to the June 9 meeting and those who attended the June 9 meeting.” Id. at II-105 (redactions in original).

They included Manafort’s details of his discussions with Konstantin Kilimnik.

The Mueller Report further recounts evidence suggesting that then-candidate Trump may have received advance information about Russia’s interference activities, stating:

Manafort, for his part, told the Office that, shortly after WikiLeaks’s July 22 release, Manafort also spoke with candidate Trump [redacted]. Manafort also [redacted] wanted to be kept apprised of any developments with WikiLeaks and separately told Gates to keep in touch [redacted] about future WikiLeaks releases. According to Gates, by the late summer of 2016, the Trump campaign was planning a press strategy, a communications campaign, and messaging based on the possible release of Clinton emails by WikiLeaks. [Redacted] while Trump and Gates were driving to LaGuardia Airport. [Redacted], shortly after the call candidate Trump told Gates that more releases of damaging information would be coming.

Id. at I-53–54 (footnotes omitted) (redactions in original, with citation in referenced footnote 206 redacted due to grand jury secrecy).

But Bill Barr’s DOJ, after having challenged the uncontroversial notion that the House should be permitted to receive what was obviously an impeachment referral, appealed to the DC Circuit, lost, and then stalled long enough to outlast Congress. Bill Barr effectively refused to let Congress receive and act on an impeachment referral. But Howell did her constitutionally mandated part.

It’s an action DOJ took during precisely the period when Barr was stalling long enough to outlast Congress that, in my mind, is the biggest secret Howell takes from her tenure: What happened with an investigation into a suspected $10 million donation in September 2016 from an Egyptian-owned bank that allowed Trump to stay in the race when he was running out of funds. Though aspects of the investigation were dribbled out in grand jury unsealings from Howell along the way, CNN first confirmed the Egyptian bank angle in 2020.

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

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

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

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

Shortly after the investigation was killed, Barr went up to Hillsdale College and ranted about prosecuting corruption.

This criminalization of politics is not healthy. The criminal law is supposed to be reserved for the most egregious misconduct — conduct so bad that our society has decided it requires serious punishment, up to and including being locked away in a cage. These tools are not built to resolve political disputes and it would be a decidedly bad development for us to go the way of third world nations where new administrations routinely prosecute their predecessors for various ill-defined crimes against the state. The political winners ritually prosecuting the political losers is not the stuff of a mature democracy.

The Justice Department abets this culture of criminalization when we are not disciplined about what charges we will bring and what legal theories we will bless. Rather than root out true crimes — while leaving ethically dubious conduct to the voters — our prosecutors have all too often inserted themselves into the political process based on the flimsiest of legal theories. We have seen this time and again, with prosecutors bringing ill-conceived charges against prominent political figures, or launching debilitating investigations that thrust the Justice Department into the middle of the political process and preempt the ability of the people to decide.

This criminalization of politics will only worsen until we change the culture of concocting new legal theories to criminalize all manner of questionable conduct. Smart, ambitious lawyers have sought to amass glory by prosecuting prominent public figures since the Roman Republic. It is utterly unsurprising that prosecutors continue to do so today to the extent the Justice Department’s leaders will permit it.

Even at the time — with the Mike Flynn, Roger Stone, and Paul Manafort cases — it was clear that Barr was engaged in fairly unprecedented corruption of DOJ to protect Trump. Since then, we’ve learned of more. Most notably, as we await a potential Bragg indictment, Geoffrey Berman described how, after Cohen pled guilty in the hush payment case, Barr not only shut down any investigation of Trump on the charge, but attempted to reverse Cohen’s own prosecution.

While Cohen had pleaded guilty, our office continued to pursue investigations related to other possible campaign finance violations. When Barr took over in February 2019, he not only tried to kill the ongoing investigations but—incredibly—suggested that Cohen’s conviction on campaign finance charges be reversed.

Barr summoned Rob Khuzami in late February to challenge the basis of Cohen’s plea as well as the reasoning behind pursuing similar campaign finance charges against other individuals. Khuzami was told to cease all investigative work on the campaign finance allegations until the Office of Legal Counsel, an important part of Main Justice, determined there was a legal basis for the campaign finance charges to which Cohen pleaded guilty—and until Barr determined there was a sufficient federal interest in pursuing charges against others.

Barr even attempted to put supervision of the case in the hands of Richard Donoghue, as he did do with the Rudy Giuliani case.

Given that Barr didn’t think Trump should be prosecuted for the Cohen illegal contribution case, there’s no telling what he thought of the suspected Egyptian bank donation. Certainly, he was in complete control of DC USAO at the time, if he wanted to shut down an otherwise viable investigation.

We are, as Howell herself said, likely to know much of what she has been doing for the last two years. But her biggest secret is whether Bill Barr prevented DOJ from fully attempting to learn whether Donald Trump was beholden to Egypt or some other foreign country for the entirety of the time he served as President.

Evan Corcoran: You’re the Next Contestant on Trump’s Crime-Fraud Reality Show

March 17, 2023/56 Comments/in 2016 Presidential Election, 2020 Presidential Election, January 6 Insurrection, Leak Investigations /by emptywheel

Multiple outlets are reporting that Judge Beryl Howell, in what may be her last ruling as Chief Judge, has ruled that Evan Corcoran must testify about his conversations with Trump.

This follows the news, from ABC, that Jack Smith’s team is particularly interested in a conversation Trump and Corcoran had on June 24, 2022, after prosecutors sent a subpoena to Trump Organization for surveillance footage that would show Walt Nauta moving boxes out of the storage room where the FBI would later find 70 classified documents. As I noted last year, in the early weeks of Trump’s efforts to stall the investigation, there was a discrepancy about what date this subpoena was served, which I suspected might suggest DOJ had to file subpoenas to two different entities before Trump agreed to comply.

So now we’ve ended up where it was clear we were going to end up in September, with another of Trump’s lawyers whose communications with him are found to be crime fraud excepted.

Corcoran is in good company. He is probably at least the fourth Trump lawyer whose comms were deemed crime-fraud excepted in the last five years. The others are:

Michael Cohen, April 2018
Rudy Giuliani, January 2022
John Eastman, March 2022

Indeed, the first such instance, the conversation Cohen recorded of Trump agreeing to a hush payment, will likely lead to the first (or possibly second, depending on what Fani Willis is doing) indictment of Trump, perhaps early next week.

With both Cohen and Rudy, the lawyers withdrew objections after Special Master Barbara Jones deemed the comms not to be privileged.

Corcoran should feel pretty good, though. He may be the first Trump crime-fraud contestant who manages to avoid legal exposure himself.

That’s got to count for something in the Trump Crime-Fraud Reality Show, right?

Some People Have Sex Toys; Trump [Claims He] Has Empty Classified Evening Briefing Folders

February 12, 2023/45 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

I’d like to situate the details about an empty folder marked, “Classified Evening Briefing,” from this Guardian story into what we know about the searches of Mar-a-Lago. It describes that the folder was first observed, in Trump’s residence, and recorded in a report shared with DOJ by the investigators who did the search of Trump’s properties. But Trump didn’t return the folder because it, itself, was not classified information.

The folder was seen in Trump’s residence by a team of investigators he hired to search his properties last year for any remaining documents marked as classified. The team transparently included the observation in an inventory of Mar-a-Lago and Trump properties in Florida, New Jersey and New York.

[snip]

The folder is understood to have not been initially returned because the lawyers thought “Classified Evening Briefing” did not make it classified, nor is it a formal classification marking.

“Weeks after” DOJ got the report on Trump’s properties in December, DOJ subpoenaed the folder in January.

Donald Trump’s lawyers turned over an empty manilla folder marked “Classified Evening Briefing” after the US justice department issued a subpoena for its surrender once prosecutors became aware that it was located inside the residential area of the former president’s Mar-a-Lago resort, two sources familiar with the matter said.

The previously unreported subpoena was issued last month, the sources said, as the recently appointed special counsel escalates the inquiry into Trump’s possible unauthorized retention of national security materials and obstruction of justice.

[snip]

Weeks after the report was sent to the justice department, the sources said, federal prosecutors subpoenaed the folder.

Here’s the story Trump told to DOJ about the empty classified folder:

The backstory the justice department was told about the folder was that Trump would sometimes ask to keep the envelopes, featuring only the “Classified Evening Briefings” in red lettering, as keepsakes after briefings were delivered, one of the sources said.

It’s just some kink that Trump has, his lawyers want DOJ to believe, that he wants to have “Classified Evening Briefing” folders strewn around his personal residence.

It’s not entirely ridiculous. After all, just two days after the search of Mar-a-Lago, reporters found a folder just like that one at a shrine to the Donald in Trump’s Wine and Whiskey Bar in Manhattan.

There are several problems with this story, though.

Let’s review some chronology of Trump’s stolen document scandal. In May, Trump’s lawyer Evan Corcoran accepted a subpoena for all documents with classified markings at any Trump property. Trump stalled for almost a month, but then the day before Trump was set to leave for Bedminster, Corcoran told the FBI to come to Mar-a-Lago the next day to retrieve documents. On June 3, Jay Bratt showed up with some FBI agents, and Corcoran handed over a folder of documents — certified by Christina Bobb, not himself — and also showed the people from DOJ the storage room where many, but not all, of Trump’s presidential records were stored. Trump’s story does not match DOJ’s story about whether Trump interacted with Jay Bratt when the senior DOJ official was at Mar-a-Lago.

On June 24, DOJ subpoenaed surveillance footage that, subsequent reporting has made clear, showed Walt Nauta moving boxes out of the storage facility, thereby preventing Corcoran from finding the documents inside in the search he did in advance of June 3. Prior to obtaining the video, Nauta had testified that he didn’t move any documents; afterwards, he testified he had moved boxes to Trump’s residence.

Then, on August 5, DOJ obtained a warrant to search Mar-a-Lago. The affidavit for the search specifically mentioned Trump’s residence, “Pine Hall.” And the search warrant authorized the search of “the ’45 Office,’ all storage rooms, and all other rooms or areas within the premises used or available to be used by FPOTUS and his staff and in which boxes or documents could be stored,” which particularly given DOJ’s knowledge that Trump already had hidden stolen documents in his residence, surely would include the residence. In the weeks after the search, Trump claimed publicly that the FBI had searched Melania’s closet, implying that the FBI did search the residence. But the only way Trump would know what the FBI searched or not would be if those rooms were covered by his own surveillance camera.

Let’s assume, however, that the FBI did at least go through the residence closely enough to ensure no documents remained there after Nauta had stashed them there while Corcoran conducted a search.

The FBI seized no documents from the residence on August 8. Documents were seized from just the storage room (those marked with an “A-” preface on the search warrant return) and Trump’s office (those without).

One thing supports Trump’s claim that he took this — and all the other — empty classified folders, as well as 42 empty aide folders, as trophies. There were 43 empty classified folders and 28 empty aide folders in his leatherbound box, which also had the most sensitive documents. Particularly given the appearance of those documents in the photo the FBI released, it is not inconceivable that Trump stole them as trophies of some events he think reflect well on his presidency, just like he stole the Kim Jong Un letters.

Plus, by appearances, Trump stored those super secret documents right next to his Time Magazine covers. All of which supports his claim that he stole these items as trophies of his time as President.

But that’s not the only place the FBI found empty folders in their August 8 search. They also found them in five other boxes, all stored in the storage room.

With one exception — box A-33 — all the boxes with empty folders also had classified records, though mostly just one or two classified documents.

In other words, even indulging Trump’s excuse — that he stole these empty classified folders as keepsakes — that only explains one of the motives and means by which he stole them. It only explains the folders stored with his other trophies, in the leatherbound box. It doesn’t account for the fact that Trump also stole files that weren’t keepsakes per se, but were boxes of other records, among which some classified records remained. It doesn’t account for the fact that hoarding large amounts of documents, as Trump did, along with sloppy treatment of classified documents while in the White House, will result in the theft of classified documents. Along with some empty classified folders.

More importantly, the discovery of an empty classified briefing folder in his residence, which was not found during the no-notice search on August 8, but was found during the search for which Trump would have had advance notice, could not readily be explained by the kink trophy explanation.

Which is why this currently operative story — and the fact that Trump’s lawyers have decided to share it publicly now — should focus on the other investigative steps that took place in the same time.

Back in October, before Attorney General Garland appointed Jack Smith, Trump was reportedly still considering letting the FBI do a further search of his property, like Joe Biden and Mike Pence have since done. But then, probably after the appointment of Smith and the 11th Circuit ruling overturning the Special Master, Trump decided to have a private firm do the search instead. After the search of (some of) Trump’s properties — this probably happened at the end of November and beginning of December — the contractors provided an inventory to DOJ, which is how DOJ learned of the empty folder. Because Trump’s lawyers refused to certify the searches themselves, DOJ immediately tried to hold Trump in contempt for violating the May 11 subpoena. That request — to hold Trump’s lawyers in contempt — happened at the same time (around December 6) as a bunch of inconsistent stories serially revealed the search of four of Trump’s properties and, the stories claimed, the discovery of just two more classified documents.

We now know those stories were false, classic Trump limited hangout. Yesterday’s stories reveal that when Trump’s lawyers told journalists the search firm had only found two documents marked as classified in December, they were hiding the Trump calendars and the classified folder. They were lying to hide the stuff just revealed yesterday.

Beryl Howell did not make a final decision on contempt, though the same Trump lawyers also falsely told journalists she had made a final decision.

Then, after some back in forth, early in January, DOJ got Beryl Howell to require Trump to turn over the names of the people who did the search. That’s the first we learned that, contrary to the headlines you’d read based on the December 2022 stories, Howell had not made a final decision on contempt.

That’s all background to the mad set of stories yesterday, announced even as Pence admitted FBI found one more classified document at his house. It should tell you something that the leaks yesterday resemble the ones from December 7, when Trump’s lawyers told two lies: That Howell had already decided not to hold them in contempt, and that the search firm had found only two more classified documents. Based on past experience, we should assume yesterday’s stories, like the ones in December, had as their primary goal to tell a false story.

What we know, though, is that after attempting to hold Trump’s lawyers in contempt in early December, DOJ took steps that would be necessary preparation for interviewing the people who did the search. First, forcing Trump to share the names. Then, interviewing two of three lawyers involved in Trump’s obstruction last June, Evan Corcoran and Christina Bobb. And then, obtaining the things found in the search that weren’t immediately turned over as positive search results, which would be necessary preparation to interviewing those who did the search.

Trump told DOJ in December that this empty folder, which the FBI didn’t find when they showed up to MAL unannounced on August 8, 2022, had found its way to Trump’s residence in time for the contracted search, because he has an empty folder fetish.

He certainly does appear to have an empty folder fetish.

But that cannot explain why the folder — full or empty — was not found in August but was found in December.

I’ve updated my resource page on Trump’s stolen documents here.

Timeline

May 11, 2022: Subpoena for all documents bearing classification marks

June 3: Corcoran hands over folder with 38 classified records

June 24: DOJ serves a subpoena for surveillance footage

July 6: Trump provides surveillance footage

October 19: Trump still considering letting FBI search his properties for further classified documents

November 18: Merrick Garland appoints Jack Smith Special Counsel

December 7: A series of inconsistent stories reveal, serially, the search of four properties and the discovery of just two more classified documents

Late 2022: DOJ reaches out to Alina Habba, who last summer claimed to have done a thorough search of Trump’s properties

December: Trump returns box of presidential schedules, which includes classified information

January 4, 2023: Beryl Howell orders Trump to turn over names of investigators to DOJ

Early January: Trump turns over aide’s laptop and DOJ subpoenas both empty folder and

Early January: Evan Corcoran and Christina Bobb appear before the grand jury

February 2: Tom Fitton appears before grand jury

February: Robert O’Brien subpoenaed for both stolen documents and attempted stolen election investigations

DOJ Has Spent Five Months Trying to Access Scott Perry’s Phone

January 31, 2023/63 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Earlier this month, I noted the difficulty created by the fact that 25 of the known witnesses or investigative subjects in the January 6 investigation were attorneys. Days later, I reiterated the difficulty presented by the six or so key participants in Trump’s suspected crimes who are members of Congress.

An important scoop from Politico demonstrates how difficult that is. It confirmed that a still-sealed appeal of a Beryl Howell decision pertains to DOJ’s efforts to get into Scott Perry’s phone.

The existence of the legal fight — a setback for DOJ reported here for the first time — is itself intended to be shielded from public scrutiny, part of the strict secrecy that governs ongoing grand jury matters. The long-running clash was described to POLITICO by two people familiar with the proceedings, who spoke candidly on the condition of anonymity.

The fight has intensified in recent weeks and drawn the House, newly led by Speaker Kevin McCarthy, into the fray. On Friday, the chamber moved to intervene in the back-and-forth over letting DOJ access the phone of Perry, the House Freedom Caucus chair, reflecting the case’s potential to result in precedent-setting rulings about the extent to which lawmakers can be shielded from scrutiny in criminal investigations.

The House’s decision to intervene in legal cases is governed by the “Bipartisan Legal Advisory Group,” a five-member panel that includes McCarthy, his Democratic counterpart Hakeem Jeffries, and other members of House leadership. The panel voted unanimously to support the House’s intervention in the matter, seeking to protect the chamber’s prerogatives, according to one of the two people familiar with the proceedings.

[snip]

More than four months after the government obtained Perry’s phone, Howell sided with DOJ. While Howell’s rulings in the dispute remain under seal, along with any rationale that appeals court judges may have offered for their actions, some spare details about the fight appear in that court’s public docket.

Remember: When DOJ was trying to breach the privilege claims of lawyers Jeffrey Clark and Ken Klukowski, they appeared to do so, in part, by prioritizing Perry’s contacts, emails that could not be privileged given the clients that Clark and Klukowski should have been representing — for a significant period for both, US taxpayers. Yet for most of the time since then, DOJ has been blocked from getting the non-lawyer’s contacts, even though he played a central role in attacking the peaceful transfer of power.

I have not yet been proven correct in my speculation that one reason Merrick Garland appointed a Special Counsel was because the Republican majority in the House made it more difficult to investigate those members of Congress, starting with Perry, who participated in Trump’s coup attempt. But Jack Smith’s background in investigating former members of Congress sure will help this investigation.