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Crime in the Era of Encrypted Apps: The Relationship between the DOJ and January 6 Investigations into Fake Electors

Yesterday, DOJ took a slew of overt steps in their investigation into the fake electors:

  • WaPo: Law enforcement activity targeting GA lawyer David Carver and Trump staffer Thomas Lane, subpoenas for GA GOP Chair David Shafer and Michigan fake electors
  • NYT: Subpoenas to Trump campaign aide in MI, Shawn Flynn, as well as Carver, Lane, and Shafer
  • CBS: Search warrants for NV GOP Chair Michael McDonald and Secretary James DeGraffenreid
  • CNN: Subpoena for Shafer, a warrant for David Carver’s phone, information on a GA Signal chat

Even though some of these reports cite the late January batch of subpoenas DOJ sent to people who had declined to participate in the fake elector scheme, the timing of the action — taking place one day after the hearing on the scheme — has set off the usual set of whinging that DOJ isn’t doing as much as the January 6 Committee.

Yet even the first of these stories — the WaPo one — provides reason to believe that DOJ is not chasing the January 6 Committee on this investigation at all. And as I keep pointing out, in April 2021, DOJ took steps — starting on Lisa Monaco’s first day in office — that will be critical to this investigation.

I’ve laid out how, by seizing Rudy Giuliani’s phones in conjunction with his Ukraine influence peddling investigation on April 28, DOJ has made the content available for the January 6 investigation at whatever time they were able to show probable cause for a warrant. That’s because the privilege review covered all content from the phones that post-dates January 1, 2018 and the privilege review was conducted prior to any review for relevance, so it would cover content whether or not it related to Ukraine.

As this table lays out, the review on half the devices DOJ was able to get into (there were two the passwords for which it had not cracked by April) included content to date of seizure on April 28, 2021.

Special Master Barbara Jones turned over the last of this material on January 21, days before Monaco confirmed that DOJ is investigating the fake elector scheme. In April, purportedly to conduct an interview in advance of an imminent decision on Rudy’s Ukraine influence-peddling, DOJ asked for his help to get into the last several phones (the numbers in this story don’t match Barbara Jones’ reports, but CNN may suggest there were two newly discovered phones; there has been no overt activity in the Special Master docket since then).

All of which is to say that whatever material Rudy, a prolific texter, had on his phones about the fake elector scheme he was central to would have been available to DOJ with a warrant since January, but that’s only true because DOJ started this process on Monaco’s first day on the job.

Even in spite of that (and the timing of Monaco’s announcement of the investigation into the fake electors), like many people, I believed DOJ might have been chasing the January 6 Committee investigation. Except several details revealed in recent days makes it clear that DOJ had developed information independent of the Committee.

For example, I first learned that Boris Epshteyn was involved from this slide in Tuesday’s hearing, which left Epshteyn’s name unredacted whereas the copy docketed in the John Eastman litigation redacts it.

But Kyle Cheney noted that Epshteyn’s name was first made public in a footnote in the associated court filing. That filing was dated May 26.

Before May 26, according to earlier NYT and CNN stories on DOJ’s investigation into the fake electors, prosecutors were already asking about Epshteyn’s role. Here’s CNN:

Former Trump attorney Rudy Giuliani, adviser Boris Epshteyn and campaign lawyer Justin Clark are among the list of names the witness was asked about, the source said.

Yesterday’s WaPo story similarly described prosecutors asking about the involvement of someone — Bernie Kerik — whose role the January 6 Committee has not yet (as far as I’m aware) public disclosed.

Those earlier subpoenas sought all documents since Oct. 1, 2020, related to the electoral college vote, as well as any election-related communications with roughly a dozen people in Trump’s inner circle, including Rudy Giuliani, Bernard Kerik, Boris Epshteyn, Jenna Ellis and John Eastman.

One would-be Trump elector in Georgia, Patrick Gartland, had been appointed to the Cobb County Board of Elections and Registration and believed that post meant serving as an elector would have created a conflict of interest for him. Still, two FBI agents recently came to his home with a subpoena and asked whether he had any contact with Trump advisers around the time of the November election. “They wanted to know if I had talked to Giuliani,” Gartland said.

One possible explanation (though not the only one) is that DOJ has a more Rudy-focused understanding of the elector scheme than the Committee, which would make sense if they had materials from Rudy’s devices that the Committee doesn’t have.

To be clear: I think it likely that DOJ has or will exploit the January 6 investigation into the same topic in at least two ways.

First, I think it likely that DOJ piggybacked on the Committee’s privilege fight with Eastman. They’ve always had the ability to serve a warrant on Chapman University for the same emails the Committee has been receiving covertly, after all, which is the kind of thing DOJ loves to do in an investigation. But by doing so in the wake of Judge David Carter’s privilege decisions, DOJ can get crime-fraud excepted communications without a Special Master process like the one they used with Rudy.

And, because the January 6 Committee is obtaining sworn depositions from some of the people involved, DOJ may get evidence of false statements — from people claiming to have no knowledge of the larger scheme or corrupt intent of the fake electors — that they could use to coerce cooperation down the road.

With the warrants in NV and GA, DOJ is taking the kind of overt acts that sometimes precede arrests. Because DOJ can get email and social media content covertly, it almost always does that before serving subpoenas (to minimize the chance someone will destroy evidence in response). Only after that, usually, do they seize someone’s phone. That kind of stuff takes months. So there’s no way DOJ could have gotten there overnight based entirely off watching the January 6 hearing.

In Tuesday’s hearing, it became clear that the GOP will try to, institutionally, blame Trump for all this. That may not be true. But it may be useful for DOJ investigators.

Update: Fixed the names of the NV GOPers.

Rudy Giuliani Launched a Lynch Mob over a Ginger Mint

I find it harder to describe the details of yesterday’s January 6 Committee hearing, covering pressure Trump put on states to alter the vote, than the earlier hearings. That’s because the testimony about Trump’s bullying of those who upheld democracy — particularly election worker Shaye Moss and Arizona Speaker of the House Rusty Bowers — elicited so much emotion. This is what Trump has turned great swaths of the Republican Party into: bullies attacking those who defend democracy.

Trump’s bullies attacking anyone defending democracy

Bowers described how a mob, including an armed man wearing a 3%er militia patch, came to his house as his daughter fought a terminal illness.

Moss described how a mob descended on her granny’s house, hunting for her and her mother, Ruby Freeman. At least one member of the mob targeting those two Black women who chose to work elections betrayed self-awareness off their regressive stance: Moss testified that one of the threats targeted at her said, “Be glad it’s 2020 and not 1920.”

And Adam Schiff got Moss to explain a detail that formed the core of a video Rudy Giuliani used to summon his mob. Rudy had claimed that when Ms. Freeman passed Shaye something, it was a thumb drive to replace votes.

It was actually a ginger mint.

Schiff: In one of the videos we just watched, Mr. Giuliani accused you and your mother of passing some sort of USB drive to each other. What was your mom actually handing you on that video?

Moss: A ginger mint.

Moss testified that none of the people who had been working with her full time on elections in Fulton County, Georgia are still doing that work. They’ve all been bullied out of working to uphold democracy.

Tying the state violence to the January 6 violence

Early in the hearing, Schiff tied these threats of violence to Stop the Steal, the organization behind the purported speakers that formed the excuse to bring mobs to the January 6 attack. He explained, “As we will show, the President’s supporters heard the former President’s claims of fraud and the false allegations he made against state and local officials as a call to action.” Shortly thereafter, investigative counsel Josh Roselman showed a video from Ali Alexander predicting at a protest in November 2020, “we’ll light the whole shit on fire.”

Much later in the hearing, Schiff tied the takeover of state capitals to the January 6 riot with a picture of Jacob Chansley invading Capitols in both AZ and DC.

Chansley already pled guilty to attempting to obstruct the vote certification, and one of the overt acts he took was to leave Mike Pence this threatening note on the dais.

So one thing the hearing yesterday did was to tie the threats of violence in the states to the expressions of violence on January 6.

Showing obstruction of the vote certification, including documents

A second video described the fake electors scheme, developing several pieces of evidence that may help DOJ tie all this together in conspiracy charges.

The video included testimony from Ronna McDaniel acknowledging the RNC’s involvement. (Remember that McDaniel joined in the effort to censure Liz Cheney when she learned the committee had subpoenaed Kathy Berden, the lead Michigander on that fake certificate; Berden has close ties to McDaniel.)

Essentially he turned the call over to Mr. Eastman who then proceeded to talk about the importance of the RNC helping the campaign gather these contingent electors in case any of the legal challenges that were ongoing changed the result of any of the states. I think more just helping them reach out and assemble them. But the — my understanding is the campaign did take the lead and we just were … helping them in that role.

The video also cited Trump’s own campaign lawyers (including Justin Clark, who represented Trump in conjunction with Steve Bannon’s refusal to testify) describing that they didn’t believe the fake electors scheme was prudent if the campaign no longer had legal challenges in a given state.

In a videotaped deposition, former campaign staffer Robert Sinners described himself and other workers as, “useful idiots or rubes at that point.” When ask how he felt upon learning that Clark and Matt Morgan and other lawyers had concerns about the fake electors, Sinners explained, “I’m angry because I think in a sense, no one really cared if … if people were potentially putting themselves in jeopardy.” He went on, “I absolutely would not have” continued to participate, “had I known that the three main lawyers for the campaign that I’ve spoken to in the past and leading up were not on board.”

And electors in individual states claimed to have been duped into participating, too. Wisconsin Republican Party Chair Andrew Hitt described that, “I was told that these would only count if a court ruled in our favor.” So using them as an excuse to make challenges on January 6, “would have been using our electors, well, it would have been using our electors in ways that we weren’t told about and we wouldn’t have supported.”

In the wake of yesterday’s hearing, one of MI’s fake electors, Michele Lundgren, texted reporters to claim that they had not been permitted to read the first page of the form they signed, which made the false claims.

As the video showed the fake certificates next to the real ones, Investigative Counsel Casey Lucier explained that,

At the request of the Trump campaign, the electors from these battleground states signed documents falsely asserting that they were the duly elected electors from their state, and submitted them to the National Archives and to Vice President Pence in his capacity as President of the Senate.

[snip]

But these ballots had no legal effect. In an email produced to the Select Committee, Dr. Eastman told a Trump campaign representative [Boris Epshteyn] that it did not matter that the electors had not been approved by a state authority. Quote, the fact that we have multiple slates of electors demonstrates the uncertainty of either. That should be enough. He urged that Pence act boldly and be challenged.

Documents produced to the Select Committee show that the Trump campaign took steps to ensure that the physical copies of the fake electors’ electoral votes from two states were delivered to Washington for January 6. Text messages exchanged between Republican Party officials in Wisconsin show that on January 4, the Trump campaign asked for someone to fly their fake electors documents to Washington.

A staffer for Wisconsin Senator Ron Johnson texted a staffer for Vice President Pence just minutes before the beginning of the Joint Session. This staffer stated that Senator Johnson wished to hand deliver to the Vice President the fake electors votes from Michigan and Wisconsin. The Vice President’s aide unambiguously instructed them not to deliver the fake votes to the Vice President.

Lucier made it clear, though, that these fake electors were delivered to both Congress (Johnson) and the Executive Branch (the Archives).

This video lays out critical steps in a conspiracy to obstruct the vote certification, one that — because it involves a corrupt act with respect to fraudulent documents — would even meet Judge Carl Nichols’ standard for obstruction under 18 USC 1512(c)(2).

The Court therefore concludes that § 1512(c)(2) must be interpreted as limited by subsection (c)(1), and thus requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.

Understand, many of these people are awful and complicit (and bmaz will surely be by shortly to talk about what an asshole Rusty Bowers is). But with respect to the fake electors scheme, the Committee has teed up a parade of witnesses who recognize their own criminal exposure, and who are, as a result, already rushing to blame Trump for all of it. We know DOJ has been subpoenaing them for evidence about the lawyers involved — not just Rudy and Eastman, but also Justin Clark.

DOJ has also been asking about Boris Epshteyn. He showed up as the recipient of an email from Eastman explaining that it didn’t matter that the electors had no legal legitimacy.

As Kyle Cheney noted, the Committee released that email last month, albeit with Epshteyn’s name redacted.

The Republican Party has not just an incentive, but a existential need at this point, to blame Trump’s people for all of this, and it may do wonders not just for obtaining cooperative and cooperating witnesses, but also to change how Republicans view the January 6 investigation.

Exposing Pat Cipollone’s exceptional unwillingness to testify

Liz Cheney continued to use the hearings to shame those who aren’t cooperating with the Committee. In her opening statement, she played the video of Gabriel Sterling warning of violence, where he said, “All of you who have not said a damn word [about the threats and false claims] are complicit in this.”

Then after Schiff talked about the threat to democracy in his closing statement …

We have been blessed beyond measure to live in the world’s greatest democracy. That is a legacy to be proud of and to cherish. But it is not one to be taken for granted. That we have lived in a democracy for more than 200 years does not mean we shall do so tomorrow. We must reject violence. We must embrace our Constitution with the reverence it deserves, take our oath of office and duties as citizens seriously, informed by the knowledge of right and wrong and armed with no more than the power of our ideas and the truth, carry on this venerable experiment in self-governance.

Cheney focused on the important part played by witnesses who did what they needed to guard the Constitution, twice invoking God.

We’ve been reminded that we’re a nation of laws and we’ve been reminded by you and by Speaker Bowers and Secretary of State Raffensperger, Mr. Sterling, that our institutions don’t defend themselves. Individuals do that. And we’ve [been] reminded that it takes public servants. It takes people who have made a commitment to our system to defend our system. We have also been reminded what it means to take an oath, under God, to the Constitution. What it means to defend the Constitution. And we were reminded by Speaker Bowers that our Constitution is indeed a divinely inspired document.

That set up a marked contrast with the list of scofflaws who’ve obstructed the Committee.

To date more than 30 witnesses called before this Committee have not done what you’ve done but have invoked their Fifth Amendment rights against self-incrimination. Roger Stone took the Fifth. General Michael Flynn took the Fifth. John Eastman took the Fifth. Others like Steve Bannon and Peter Navarro simply refused to comply with lawful subpoenas. And they have been indicted. Mark Meadows has hidden behind President Trump’s claims of Executive Privilege and immunity from subpoena. We’re engaged now in litigation with Mr. Meadows.

Having set up that contrast, Congresswoman Cheney then spent the entire rest of her closing statement shaming Pat Cipollone for refusing thus far to testify.

The American people in our hearings have heard from Bill Barr, Jeff Rosen, Richard Donoghue, and many others who stood up and did what is right. And they will hear more of that testimony soon.

But the American people have not yet heard from Mr. Trump’s former White House counsel, Pat Cipollone. Our Committee is certain that Donald Trump does not want Mr. Cipollone to testify here. Indeed, our evidence shows that Mr. Cipollone and his office tried to do what was right. They tried to stop a number of President Trump’s plans for January 6.

Today and in our coming hearings, you will hear testimony from other Trump White House staff explaining what Mr. Cipollone said and did, including on January 6.

But we think the American people deserve to hear from Mr. Cipollone personally. He should appear before this Committee. And we are working to secure his testimony.

In the wake of this, someone “close to Cipollone” ran to Maggie Haberman and sold her a bullshit story, which she dutifully parroted uncritically.

Cheney had just laid out that the “institutional concerns” had been waived by other lawyers (and were, legally, in the case of Bill Clinton). And any privilege issue went out the window when Sean Hannity learned of the White House Counsel complaints. Plus, White House Counsel lawyer Eric Herschmann has testified at length, including about matters — such as the call Trump made to Vice President Pence shortly before the riot — involving Trump personally.

Given Cheney’s invocation of those who pled the Fifth, I wonder she suspects that Cipollone’s reluctance has less to do with his claimed excuses, and more to do with a concern that he has personal exposure.

He may! After all, he presided over Trump’s use of pardons to pay off several key players in the insurrection, including three of the people Cheney invoked to set up this contrast: Flynn, Stone, and Bannon (though I suspect Cipollone had checked out before the last of them). And these pardons — and the role of pardons in the planning for January 6 more broadly — may expose those involved, potentially including Cipollone, in the conspiracy.

Whether or not Cheney shames Cipollone into testifying, including with her appeal to religion, he may not have the same luxury of refusing when DOJ comes calling.

[Photo: Emily Morter via Unsplash]

Oddly-Timed Story: White House Counsel McGahn’s Call to FCC’s Ajit Pai

[NB: Check the byline — it’s Rayne and some of this post is speculative.]

Maybe it’s something; maybe it’s nothing. But with White House Counsel Don McGahn under so much scrutiny this week, the timing of the story about McGahn’s call to the Federal Communications Commission seems odd.

You may recall I wrote recently (item 2) about the proposed merger of Sinclair Broadcast Group and Tribune Media, a deal which would have created a behemoth reaching at least 72% of U.S. households via local broadcast TV stations. FCC chair Ajit Pai revealed in testimony before the Senate Commerce Committee on Thursday this past week that McGahn had called him about the Sinclair Broadcast Group-Tribune Media merger.

Let’s look at the timeline of events related to this deal:

22-JAN-2017 — Ajit Pai named FCC chair on Trump’s second full day in office.
7-MAR-2017 — Trump nominates Ajit Pai to a second five-year term with the FCC as its chair.

Trump and Pai met at the White House on Monday for a meeting that was closed to the press, although an FCC official said that no pending business before the agency was discussed.

17-MAR-2017 — Rumors surfaced about a Sinclair-Tribune merger.
8-MAY-2017 — Sinclair announced it would buy Tribune; assets would include WGN (Chicago) and WMIL (Milwaukee) radio stations. Tribune newspapers were not included in the deal.
2-OCT-2017 — Senate confirms Pai as FCC chair.
24-OCT-2017 — FCC killed a rule requiring broadcasters to have physical offices in their primary local coverage area. The move was seen as beneficial to Sinclair’s merger as they would not have to change office locations.

16-JUL-2018 — Pai expressed concerns about the merger deal, drafting a Hearing Designated Order (HDO) to place the merger before an administrative judge.
17-JUL-2018 — McGahn called Pai for an update on the Sinclair-Tribune merger.
18-JUL-2018 — FCC signs and issues the HDO.
18-JUL-2018 — House Subcommittee on Communications and Technology announced an FCC oversight hearing for 25-JUL-2018.
24-JUL-2018 — Trump tweets about his disappointment with FCC about the Sinclair-Tribune deal:

So sad and unfair that the FCC wouldn’t approve the Sinclair Broadcast merger with Tribune. This would have been a great and much needed Conservative voice for and of the People. Liberal Fake News NBC and Comcast gets approved, much bigger, but not Sinclair. Disgraceful!

25-JUL-2018 — During House Energy and Commerce Committee FCC oversight hearing, Chairman Frank Pallone asked Pai, “If the President or anyone in the White House discusses or has discussed the Sinclair-Tribune merger with you or anyone at the FCC, will you commit to disclosing that in the public docket? Yes or no?” Pai responded, “Yes, except, Congressman, we have ex parte rules, because this is now a restricted proceeding. We are limited in what information we can receive and what we can put on the record. But consistent with our restricted ex parte rules, we would be happy to accommodate to the extent we can.” (video excerpt)
02-AUG-2018 — Pai did not mention the call from McGahn during an FCC press conference.
09-AUG-2018 — Tribune, not Sinclair, terminated the deal.
16-AUG-2018 — Pai appears before the Senate Commerce, Science and Transportation Committee, disclosing McGahn’s call.
18-AUG-2018 — NYT publishes the first of two pieces on McGahn.
19-AUG-2018 — NYT publishes the second of two pieces on McGahn.
20-AUG-2018 — House Energy and Commerce Committee Chairman Pallone Jr. said McGahn’s call to Pai should have been disclosed the previous week during a hearing before the Senate Commerce, Science and Transportation Committee hearing the previous week. Pallone wants answers about that call.

A couple things stand out immediately. First, Pai parsed responses to the House Energy and Commerce Committee and the Senate Commerce Committee. He was already on thin ice because of his claim a DDoS swamped public comments related to net neutrality but the FCC’s inspector general found Pai to be less than honest about the DDoS.

Second, the story about McGahn calling Pai was published on Thursday afternoon, approaching an advanced news dump zone during August. Why did NYT run not one but two stories about McGahn over the weekend? Why didn’t they wait until Monday? It’s as if somebody realized they needed to get a story out in spite of late summer weekend doldrums.

In this past weekend’s hullabaloo about McGahn’s “cooperation” with Special Counsel’s Office, there was a concerted effort to portray McGahn as serving and protecting the presidency, not Trump. As White House Counsel this is McGahn’s job but the obvious effort to distance McGahn from Trump should be noted.

Which makes me wonder: why did McGahn as White House Counsel, responsible for protecting the presidency, need an update from the chair of the independent FCC on a media merger? Why wouldn’t Commerce Department address this if Trump was curious? Or why wouldn’t Trump act like an ass and bumble a demand for information directly over Twitter as he has before with companies like Boeing?

As Marcy has pointed out, McGahn has extensive background in campaign finance; he was the Trump campaign’s counsel during the 2016 election season. Coincidentally he was counsel when David Smith, CEO of Sinclair Broadcasting Group, told Trump, “We are here to deliver your message.

Sounds like an offer of an unreported in-kind campaign donation to me since there are no reports that Smith or anyone at Sinclair made a similar offer to any other GOP primary candidate or to Hillary Clinton. Sinclair vigorously denied they hadn’t offered equal time when Sinclair’s offer to Trump was reported:

. . .there was a flap when Trump advisor Jared Kushner told a private business luncheon in December that Sinclair executives worked with the campaign to spread pro-Trump messages in Sinclair newscasts, which reach 81 markets in key heartland regions that supported Trump. Sinclair vehemently denied the claim, asserting that it offered equal amounts of air time for in-depth interviews to Trump and his Democratic rival, Hillary Clinton, and that Clinton declined the invitation.

Did McGahn know about and approve this offer?

Pai’s squirrelly behavior about Sinclair-Tribune as well as McGahn’s sudden distancing from Trump cast a different light on David Smith’s so-helpful offer and Sinclair’s mandatory group-wide airing of former White House communications aide Boris Epshteyn’s program — the same Epshteyn who has a history of pro-Russian sentiment. Add these couple line items to the timeline:

25-MAR-2017 — Epshteyn left his role as Special Assistant to The President and Assistant Communications Director for Surrogate Operations, having previously served in Trump campaign communications and as director of communications for Trump inauguration committee.
17-APR-2017 — Sinclair announced Epshteyn joined them as a political analyst.

Conveniently after the rumors emerged about the Sinclair-Tribune merger but before it was formally announced — what a coincidence.

It doesn’t appear Epshteyn was replaced in the White House. Was Epshteyn placed with Sinclair at Trump’s request — not because of Epshteyn’s rumored confrontational approach to Fox News — after having been parked with the White House for two months post-inauguration for the purposes of resume padding?

Is Epshteyn really an independent political analyst or is he still shilling for Trump as an under-cover communications aide on Sinclair’s dime — gaslighting America for Trump’s benefit — given David Smith’s eagerness to deliver Trump’s message? Is Epshteyn really doing advance work for Trump 2020 campaign?

Is this the reason why Sinclair issued a diktat to all its 173 stations that they must read on air a statement about other media outlets’ “fake news,” in order to elevate their content, including Epshteyn’s by contrast, engaging in what NPR’s David Folkenflik called “negative campaigning”?

Is this the reason why Ajit Pai didn’t disclose the call from McGahn and attempted to obstruct access to information about the call behind an HDO that McGahn called not on behalf of the president but on behalf of the Trump 2020 campaign?

Did McGahn help push the two back-to-back NYT articles this weekend to wallpaper over what may have been a Hatch Act violation — using his role as White House Counsel to reach Ajit Pai and press for approval of the Sinclair-Tribune merger to benefit Trump 2020?

Reaching at least 72% of American households from now until Election Day 2020, to push anti-Democratic Party content while collecting data on viewers and shaping voter turnout, might have been adequate motivation to do so if one were working for the Trump campaign — not to mention  McGahn’s legal exposure.

It’d be nice if one of the Congressional committees conducting oversight of the FCC asked Pai more pointed questions about that phone call.

It’d be nice, too, if somebody asked any of the 2016 GOP primary candidates or Hillary Clinton’s campaign team if they received the same offer from Sinclair’s Smith extended to Trump or his proxies (hello, Jared).

And there’s more than one David helming a media empire who needs to answer some questions about their friend Trump.