Dan Scavino Archives

Posts

Death by Tweet: “User Attribution Is Important”

August 16, 2023/102 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Donald Trump nearly killed his Vice President by tweet — the tweet he sent at 2:24PM on January 6, 2021.

111. At 2:24 p.m., after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

112. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.

113. At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!”

114. The Defendant repeatedly refused to approve a message directing rioters to leave the Capitol, as urged by his most senior advisors-including the White House Counsel, a Deputy White House Counsel, the Chief of Staff, a Deputy Chief of Staff, and a Senior Advisor.

As the indictment tells it, at the time Trump sent his potentially lethal tweet, inciting the mob bearing down on Mike Pence, Pence’s spouse, and daughter, Donald Trump was alone in his dining room with the murder weapon: an unknown phone, and his Twitter account.

But when DOJ served a warrant on Twitter for Trump’s Twitter account on January 17, they couldn’t be sure who was holding the murder weapon. They also wouldn’t know whether triggering the murder weapon was coordinated with other events.

That explains why, as Thomas Windom described in a February 9 hearing, metadata from Trump’s Twitter account showing any other account associated with his own may have been just as important for the investigation as any DMs obtained with the warrant.

MR. HOLTZBLATT: Well, Your Honor, we don’t — the issue, Your Honor — there isn’t a category of “associated account information”; that’s not information that Twitter stores.

What we are doing right now is manually attempting to ascertain links between accounts. But the ascertainment of links between accounts on the basis of machine, cookie, IP address, email address, or other account or device identifier is not information that Twitter possesses, it would be information that Twitter needs to create. So that’s the reason why we had not previously produced it because it’s not a category of information that we actually possess.

[snip]

MR. WINDOM: It is, as explained more fully in the warrant — but for these purposes, it is a useful tool in identifying what other accounts are being used by the same user or by the same device that has access to the account is oftentimes in any number of cases, user attribution is important. And if there are other accounts that a user is using, that is very important to the government’s investigation.

[snip]

MR. HOLTZBLATT: That’s right. If the records — if the linkage between accounts, which is what we understand this category to be referring to, is not itself a piece of information that we keep, then it’s not a business record that we would ordinarily produce.

What I understand the government to be asking is for us to analyze our data, as opposed to produce existing data. And we are trying to work with the government in that respect, but that is the reason that it is not something that — that is a different category of information. [my emphasis]

By that point, DOJ would have had Cassidy Hutchinson’s testimony describing what she saw sitting outside Trump’s dining room door (and once, going in to pass off Mark Meadows’ phone). They would have had two grand jury appearances from the two Pats, Cipollone and Philbin, the White House Counsel and Deputy Counsel described in the passage. They would have had at least one interview with Eric Herschmann — the Senior Advisor trying to calm him down.

They did not yet have privilege waived testimony from the Chief of Staff — Mark Meadows — or the Deputy Chief of Staff — Dan Scavino.

And Dan Scavino was the most likely other person to know about that near murder by tweet, because Dan Scavino was in his position, the Deputy Chief of Staff, first and foremost because he had masterminded Trump’s own mastery of Twitter going back to 2016.

So one thing DOJ needed to know before they conducted an interview that took place after Beryl Howell rejected yet another frivolous Executive Privilege claim in March was how Dan Scavino accessed Trump’s Twitter account when he did, from what device.

Who else had access to Trump’s Twitter account, one part of the murder weapon?

When DOJ asked Twitter to go back and figure out which other accounts shared IP addresses, cookies, or other device identifier with Trump’s Twitter account, they were asking for a list of other people (or at least clues to identify those people) who might be holding that murder weapon on January 6, Trump’s Twitter account, instead of Donald Trump.

Before Dan Scavino told the grand jury that he wasn’t in the room when that tweet was sent, as he must have, DOJ would have needed a better idea whether Scavino sent the tweet, to know whether he was telling the truth once he did sit for a privilege waived interview.

But they were also asking for a very specific clue about the other part of that murder weapon: some way to identify the phone from which the potentially deadly tweet was sent. Identifying which phone was alone in the room with Donald Trump on January 6 would also identify which phone to go seize to learn who else Trump was communicating with when he was sitting alone in his dining room as he watched his supporters assault the Capitol. Identifying which phone was alone in the room with Donald Trump on January 6 would help to fill the gap in communications that the January 6 Committee never completely filled.

And not just that phone.

Obtaining the associations to Trump’s Twitter account would also help explain one of the most enduring mysteries about January 6: What happened between the time Sidney Powell left after a screaming meeting on December 18 and the time Trump announced the rally in the early hours of December 19, leading thousands of his most rabid followers to start planning to come to DC?

87. On December 19, 2020, after cultivating widespread anger and resentment for weeks with his knowingly false claims of election fraud, the Defendant urged his supporters to travel to Washington on the day of the certification proceeding, tweeting, “Big protest in D.C. on January 6th. Be there, will be wild!” Throughout late December, he repeatedly urged his supporters to come to Washington for January 6.

That December 19 tweet, and the phone it was sent from, was another kind of murder weapon, the shot that would set off the entire riot. And to figure out who was wielding it, the circumstances in which it went off, investigators would work backwards from where it was stored, on Twitter.

They would want to know, too, how Ali Alexander and Alex Jones copped on so quickly — whether any of the participants in the DM lists via which Stop the Steal was coordinated had a user who also had access to Trump’s Twitter account.

Even before Trump became President, his communication habits made it very difficult to pin down his actions. Roger Stone, for example, would call Trump during the 2016 election on Trump’s cell, his Trump Tower phone, two work phones, via three different assistants, and Keith Schiller. And Stone often used other people’s phones to call on.

Trump still has a habit of using other people’s phones. The stolen documents indictment reflects Molly Michael telling Walt Nauta that Trump had had her phone. Several of Trump’s aides were asked by J6C whether Trump ever used their phones; several probably didn’t tell the truth in response.

But much of execution of January 6 went through the single most stable means of communication Donald Trump had: his Twitter account. And to attribute any actions that happened using Trump’s Twitter account, DOJ needed as much data as possible about who else used it and in what circumstances.

User attribution is important. Especially with a guy who has the ability to murder by tweet.

Shrug: Beau Harrison’s Renewed Memory about Trump’s Lunge

January 5, 2023/44 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

One trick of trying to map the DOJ investigations into Trump onto the testimony available from the January 6 Committee is that so many Trump associates could be witnesses on so many aspects of the investigation.

I noted, for example, how Alex Cannon is a direct witness to matters pertaining to the stolen documents, Trump’s Big Lie, Trump’s misuse of money raised to combat voter fraud, and the effort to take care of Cassidy Hutchinson. When Stephen Miller appeared before a grand jury twice in eight days, did he appear on different issues, or the same? When the two Pats, Cipollone and Philbin, split a long day in grand jury rooms, were they both exclusively in a January 6 grand jury, or did they also testify before the stolen documents one?

And when three Trump aides — Dan Scavino, William Russell, and Beau Harrison– appeared before a grand jury on December 1, did they all appear before the same grand jury and for the same prong of the investigation? Their subpoenas were first reported in a NYT article that revealed the focus on Trump’s use of PAC financing. All three continued their association with Trump after he left the White House. But that doesn’t mean their testimony only relates to the financial part of the investigation. Beau Harrison’s two interviews with J6C reveal why.

I’m not aware that an interview with Russell has been released (more on him here).

Scavino refused to cooperate with J6C, for which DOJ declined to prosecute him, though the J6C report did focus on how Scavino has been paid by Save America PAC.

[F]rom July 2021 to the present, Save America has been paying approximately $9,700 per month to Dan Scavino,171 a political adviser who served in the Trump administration as White House Deputy Chief of Staff.172 Save America was also paying $20,000 per month to an entity called Hudson Digital LLC. Hudson Digital LLC was registered in Delaware twenty days after the attack on the Capitol, on January 26, 2021,173 and began receiving payments from Save America on the day it was registered.174 Hudson Digital LLC has received payments totaling over $420,000, all described as “Digital consulting.”175 No website or any other information or mention of Hudson Digital LLC could be found online.176 Though Hudson Digital LLC is registered as a Delaware company, the FEC ScheduleB listing traces back to an address belonging to Dan and Catherine Scavino.177

That leaves just Beau Harrison’s two J6C appearances (April 7, 2022; August 18, 2022).

Harrison played an Advance role in the White House and was one of several witnesses with incomplete memories about January 6 who reported to Deputy Chief of Staff Tony Ornato. In fact, Harrison shared a small office with Ornato (parts of whose unpersuasive testimony I tweeted about here).

Three things stick out about Harrison’s testimony. First, Trump’s Executive Assistant Molly Michael (who is a known witness in the stolen documents prong of the investigation and who was interviewed by the committee on March 24, 2022) named Harrison in her list of people who was employed by Save America PAC.

And how many other people from the White House staff did go onto Florida to work with him, your current colleagues or otherwise associated with the former President?

A A small handful

Q Who else was on that list besides you, Ms. Michael?

A Someone that works for the First Lady, Hayley D’Antuono.

Q Okay. She was in the White House and now works in Florida for the First Lady, correct?

A Yes.

Q Okay. Who else?

A Someone that worked in operations named Beau Harrison.

Q Okay. Mr. Harrison works for – he’s actually engaged to Ms. D’Antuono, right?

A That’s correct.

Q Okay. And what’s his role currently down in Florida?

A He continues in an operations role.

Q Okay. Are they all, like you, employed by the Save America PAC?

A Yes.

When asked about Save America in his second interview in August, here’s how Harrison answered.

Q Has anyone told you to not provide certain information, even if it’s the answer to a question that the select committee poses?

A No.

Q And then just a final set of questions. Are you receiving any assistance from anyone or entity to help cover your legal costs related to the select committee only, nothing else?

A Yes. I’m not personally — I’m not personally paying for legal representation.

Q Do you know who is, who’s covering those costs?

A Not specifically, which may be something I probably should know, but that I don’t Know.

Q Do you know what the Save America PAC is?

A Yes

Q Do you know if they have any role in helping to cover your legal costs or find somebody who would cover your legal costs?

A They — I don’t know if they are covering them. They are associated with — with whoever — whoever it may be that is.

Q Do you have a contact there who — who you talk to about issues related to this?

A The only — the only time it’s ever come up — or the only contact, you know, related to this would be when I got the initial phone call, whenever, you know, whenever, a couple months ago. whenever it was. And I contacted Justin Clark.

Like Cassidy Hutchinson, Justin Clark helped arrange for a lawyer. Like Cassidy Hutchinson, Stefan Passantino represented Harrison, including in this second interview.

A far more important part of Harrison’s testimony pertains to Trump’s reported request to be taken to the Capitol on January 6. Though the final J6C report focused closely on the story Cassidy Hutchinson first relayed about Trump lunging in his limo when informed he couldn’t be driven to the Capitol, it makes no mention of Harrison’s testimony on the issue.

In his first interview, Harrison claimed not to remember much of anything unusual about the day. The security alerts he elevated to Mark Meadows, including Ashli Babbit’s shooting, were just normal security alerts, per that testimony. Though he played a security liaison role, there was virtually nothing unusual about the day when Trump’s mob attacked the Capitol.

In that first appearance, over and over, Harrison denied recalling details of Trump’s interest in going to the Capitol. After explaining that he learned of Trump’s call to walk to the Capitol from Twitter, Harrison provided these answers about specific knowledge of discussions of Trump going to the Capitol.

Q Do you know whether Mr. Ornato or anybody else talked to the Secret Service or anyone about making arrangements for the President to goto the Capitol that day?

A I mean, I think that — again, I don’t know this for fact or specifics, but remember, you know, the – kind of the understanding was If for whatever reason it were to come up, it should be directed as with any game-time decision, it should be directed to the Secret Service, to, you know, Bob Engel or Robert Engel, you know, if that could happen.

Q Okay. And after the President said he was going to march or even shortly before, but on that day of January 6th, are you aware of those conversations or communications happening with the Secret Service or otherwise?

A No.

In his second interview, however, Harrison had a much clearer memory of Bobby Engel stopping in the office he shared with Tony Ornato than he did before Cassidy Hutchinson testified publicly in June (after she got a new lawyer to replace Passantino). In his revised memory, Harrison said that Bobby Engel described Trump “shrugg[ing] off” the instructions from Secret Service that he would not be taken to the Capitol.

Q When the President came back, do you remember Bobby Engel ever coming to your office or the office you shared with s Mr. Ornato?

A Yes

Q Tell us about that. What was he there for? What happened? What did you guys talk about?

A So as Bobby Engel normally would do, so, you know, the limo would drop off, depending on where the President was, if they were arriving on the south grounds, you know, if the President was going up to the residence, it would stop at the portico there, you know, kind of the center of the residence. If he was going the — the President was going back to his office, they would pull forward. And, you know, he could walk. There’s a little pathway from. you know, you’ve probably seen that. There was a, you know, a pathway from the drop point to the corner of the, you know, the door of the in between the Oval Office and the Rose Garden that he would use. Tony — or Bobby would be in the car with him and would, obviously, he wouldn’t go back into the Oval Office. But he would continue through the West Wing back through his office in the EEOB. You know, one of the common things that he would do would be he would, you know, pop in our office and just kind of give us an update of how the trip went or what — really anything.

And so when they got back that afternoon, again, I don’t remember the time, when they got back. I remember Bobby popped into our office. It was the three of us — Tony, Bobby, myself. And he gave an update of, you know, kind of the events there at the Capitol.

I have a memory of Bobby saying that, before the President went onstage there at the offstage announce area, you know, the whole question of should he go up to the Capitol, should he go up to the Capitol. That was kind of getting tossed around. A lot of it was — was getting directed back to Bob Engel as kind of the deciding, you know, with the events in real time, you know. Anything like that would go — would run through Bobby.

I remember Bobby, you know, saying, hey, you know, we can’t do that. You know, we have no plan for that. There are no plans to do — to do that. You know, we couldn’t — we couldn’t secure that in this amount, short amount of time, on and on like, you know, as we talked about last time. You know, further than, that he said the President went on stage, gave his remarks. And this is Bobby told Tony and myself that, you know, he was like — it was almost like he had to ask. And then when he was told that, hey, you can’t go to the Capitol, he was like, you know, kind of, again, shrugged it off and was like, all right, at least I asked. And that was it.

Now, there are a lot of ways in which this (and other parts of his) testimony conflicts with what Harrison had already said, what Engel testified to later, what records subsequently shared with the committee (and so far more readily available to DOJ) revealed.

But it’s not this conflict that I find most interesting. It’s the conflict between what Tony Ornato had to say about talking to Harrison and what Harrison had testified to months earlier.

When Liz Cheney asked Ornato whether he had spoken to anyone after Hutchinson’s testimony, he admitted speaking to the Secret Service people about Hutchinson’s testimony, but claimed that a conversation he had with Harrison was about real estate.

Ms. Cheney. Anyone else from the administration?

The Witness. I have talked to [Beau] Harrison, who has left the — Trump’s — at this point, but nothing about any testimony or anything of that nature. It was more about real estate and him moving to the area.

Ms. Cheney. Did you speak with the Secret Service spokesperson following Ms. Hutchinson’s testimony?

The Witness. I recall, that day after Ms. Hutchinson’s testimony, going to the Secret Service Counsel and being in his office and then the Secret Service spokesperson asking me about what my recollection was of that story. And I relayed that that is not a story I recollect and I don’t recall that story happening and the first time hearing it is when she had said it.

Harrison told the story differently. In an exchange just after Passantino piped in to make sure the record reflected Harrison saying that Trump “shrugged it off” rather than “shrugged his shoulders” in response to being told he couldn’t go to the Capitol, Harrison assured the committee he would know if this kind of conflict had taken place.

Q Uh-huh. so I think [redacted] had asked you about there was public reporting about a heated argument that occurred in the — and I’ll take it in two parts. First the heated argument, did you hear anything to that effect?

A No.

Q And how about what, as you said, you described, you saw Ms. Hutchinson’s testimony on TV. Is that — I want to make sure heard you correctly. Was that the first time you heard that testimony in terms of what occurred in the vehicle, as she said, relayed by Mr. Engel?

A Yes. Her — the story that was — the story that was told during her public testimony was the first I had heard of you know, anything like that being described.

Q Was there any kind of discussion, putting aside the testimony, but the days following, did you learn of anything that occurred that was more than just a back and forth of as you’re describing, of can I go and I guess Mr. Engel saying no? Was there anything in that range of more of a request, anger, heated 6 argument, altercation, anything?

A No.

Q Did you see —

A I would — I’m sorry

Q That’s okay.

A I would also add that, if something like had been described had occurred, I percent would have known about it and would have heard that.

Q And why do you say that?

A Because that is something that would have, you know — that’s — that’s the report that Bobby would share when he got — when he got back. You know, that would fall into the, hey, how’d it go and he’d be like, oh, you know. like, you know, this — this — let me tell you. But —

Q If it was shared only with Mr. Ornato, would Mr. Ornato have shared that with you?

A If it was shared with Tony, yes, Tony would have shared it with me.

Harrison similarly assured the committee, even less convincingly, that there’s no way Trump’s limo was left running to keep open the possibility of a trip to the Capitol without him knowing.

But then the committee asked Harrison, three months before Ornato would answer the same question, whether he had spoken to Ornato about this.

In addition to explaining that he’s “kind of a big brother” to Ornato’s son, Harrison revealed that Ornato called Harrison immediately after (during, maybe!?!?) Hutchinson’s testimony.

Q What about with Tony Ornato, have you talked to him about January 6th or anything that happened on January 6th before your testimony today?

A The only — the only, you know, time that we — again. Tony and I are personal friends and have talked about — you know, I’m — I’m kind of a big brother to his son and to, you know — he — we’re personal friends. The only thing that we’ve talked about on this matter is during Cassidy’s testimony, he just — he basically said, can you — you know, can you believe this? And — and that was that. You know, nothing further — nothing further. you know, was — was discussed on the matter of — aside from the fact of like, you know. where is this coming from?

Q How did he say that to you? Did he call you? Did he send you a text message?

A I believe it was a phone call. And — and I think it was more of, you know, he was like, did I — you know, did I miss something or am I — am I — you know, clearly this did not happen, but how — how is this being — you know, where is this story even coming from or, you know, where could this even, you 12 know, be coming from.

Q In that conversation, did he — he told you it didn’t happen? What portion of the testimony did he say didn’t happen in that phone call with you?

A I –well, I mean, as it was described when — you know, the whole — the whole story of — the whole story of Bob Engel returning to our office, you know, and going into the — going into the — you know, the story about the President being irate and, you know, the President grabbing Bob Engel’s neck and grabbing for the steering wheel, you know, that was the part he was like, you know — like, did that happen? Did the — you know, did that — did — was that even discussed? Was that — did that ever come up? And at that point I said —

Q In that —

A I’m sorry, go ahead.

Q Go ahead. I’m sorry. I cut you off right before you were about to say what you said in response.

A And I’m saying, no, you know, the first — the first I had even — I have ever even heard of this was. you know, just this afternoon, this afternoon when it was being described, you know, that way on TV.

Q In that conversation, did Mr. Ornato kind of relay his recollection of the events to you?

A That, I don’t remember. But, I mean, I don’t think he went, you know, play by play of what happened. I think it was mainly just kind of just, you know, kind of shock as to, you know, getting associated with and being the kind of the source of that type of information.

Harrison and Ornato could — and one day may — testify in defense of Trump at some trial. On the issue of whether he responded angrily when told he could not going to the Capitol, their testimony might just present a conflicting account to that of Hutchinson and others (and some documentary records).

But on the issue of the conversation that Harrison had with Ornato, there’s a dramatic conflict, real estate versus a direct response to Hutchinson’s testimony, possibly even as she testified.

And that’s what I mean about how interlocking all these issues are. Sure, Harrison may have been interviewed about being paid out of funds originally raised based on false claims of voter fraud.

But it’s hard to separate those payments from his evolving testimony about that shrug.

Update: At the very end of Ornato’s testimony, after learning Engel’s testimony conflicted with his and learning that Hutchinson had shared Signal texts Ornato had sent her, he described speaking to both Engel and Harrison during Hutchinson’s testimony, a clear conflict with his earlier answer about real estate.

A No, sir. The only time I had reached out to Mr. Engel was when Cassidy Hutchinson was testifying during her – as she was testifying, and I was I wasn’t watching it, was called to put it on, and I was shocked and surprised of her testimony and called Mr. Engel and asked him, What’s she talking about? And his response was, I don’t know.

And then I then proceeded to say I said, Let me listen to the rest of this now. I have no idea And that was the only time I had — I had reached out to Mr. Engel. I actually reached out to Mr. Harrison as well, because I knew Beau was in my office. And I said, Beau, what’s she talking about? And Beau said the same thing. He said, I don’t know. I don’t remember her being in your office. that was just shocked and surprised at – of the testimony, and I did reach out 9 during her testimony, I believe, to the both of them to ask that. ~ But, at that point, after I~ my head settled down, I didn’t discuss it any further.

The Money Trail Stuck in an Appendix of the January 6 Report

December 27, 2022/75 Comments/in 2020 Presidential Election, emptywheel, Financial Fraud, January 6 Insurrection /by emptywheel

Several weeks before the January 6 Committee released its report, CNN published a somewhat overlooked report describing the investigation that Jack Smith has inherited. Among other things, it revealed that (as Merrick Garland had promised) DOJ was following the money.

Another top prosecutor, JP Cooney, the former head of public corruption in the DC US Attorney’s Office, is overseeing a significant financial probe that Smith will take on. The probe includes examining the possible misuse of political contributions, according to some of the sources. The DC US Attorney’s Office, before the special counsel’s arrival, had examined potential financial crimes related to the January 6 riot, including possible money laundering and the support of rioters’ hotel stays and bus trips to Washington ahead of January 6.

In recent months, however, the financial investigation has sought information about Trump’s post-election Save America PAC and other funding of people who assisted Trump, according to subpoenas viewed by CNN. The financial investigation picked up steam as DOJ investigators enlisted cooperators months after the 2021 riot, one of the sources said.

Given the report that DOJ already has a robust investigation into the money trail, was a bit surprised that the January 6 Committee not only didn’t refer Trump for financial crimes — an easier way to look smart than referring him for inciting insurrection when DOJ has charged no one with insurrection — but relegated the financial part of the report to an appendix. I thought that choice was especially odd given that the false claims Trump made about the Big Lie were repurposed in campaign ads. But among other things, because Alex Cannon (he of the good Maggie Haberman press on the stolen document case) happened to be assigned both to debunking claims of voter fraud generally and he was part of the ad approval process (but as someone who had been doing vendor relations for Trump golf courses until shortly before he moved to the campaign, he was totally unprepared to deal with campaign finance law), you have a witness otherwise exposed in DOJ investigations who recognized the fundraising claims could not be substantiated.

Q Okay. Did you have discussions with anyone within the campaign about the inflammatory tone of the post-election emails?

A Yeah. mean, I did mention it to Justin Clark.

Q What did you say to him?

A That, you know, I just didn’t love the messaging, something along those lines.

Q What was the issue you had with the messaging?

A I think it’s just some of it seemed a little over the top to me.

Q Because you had just spent weeks researching and looking and trying to figure out what was verifiable and what wasn’t right?

A Yes, maam.

Q You had had face-to-face conversations with Mark Meadows, with Peter Navarro, with the Vice President. You’d been told to your face you’d been accused of) being an agent of the deep state in response to telling people the truth about what you were seeing in terms of election fraud that was verifiable or would be admissible in court, hadn’t you?

A Yes

Q And, in response to all of the truth that you were propounding to people, you watched for weeks as the ton of these email got stronger and more inflammatory, raising millions — hundreds of million dollars off of theories that you had spent weeks debunking and denying because you had found that they were not verifiable, right?

A I can see how you would draw that conclusion.

As one of the J6C hearings had noted — and as the appendix lays out in more depth — Trump continued to fundraise until the riot kicked off on January 6.

Within the campaign, there was a really junior staffer who got fired, seemingly because he refused to make false claims in ads.

In that meeting, as Coby addressed the staff and expressed that the digital team would continue to work, Ethan Katz, an RNC staffer in his early twenties, rose to ask a question: 130 How were staffers supposed to tell voters that the Trump Campaign wanted to keep countingvotes in Arizona but stop counting votes in other States (like Pennsylvania, Georgia, and Michigan)? 131

Katz said that Coby provided an answer without substance, which caused Katz to reiterate his question. His question made clear that the Campaign’s position was wildly inconsistent.132 Allred and Boedigheimer corroborated that Katz confronted leadership.133

Katz also recalled that, shortly after the election, Allred directed him to write an email declaring that President Trump had won the State of Pennsylvania before anyone had called Pennsylvania for either party.134 Katz believed the Trump Campaign wanted to send this email out to preempt apotential call that was likely to be in former Vice President Biden’s favor.135 He refused to write the email. Allred was stunned, and instead assigned it toanother copywriter.136 Allred confirmed that Katz expressed discomfort at writing such an email and that she relied on another copywriter.137 On November 4, 2020, the Trump Campaign sent out an email preemptively and falsely declaring that President Trump won Pennsylvania.138 Katz was fired approximately three weeks after the election.139 In aninterview with the Select Committee, when Allred was asked why Katz, her direct report, was fired, she explained that she was not sure why because TMAGAC was raising more money than ever after the election, but that the decision was not hers to make.140

The RNC simply stopped echoing all the claims Trump was making.

Allred and Katz both received direction from the RNC’s lawyers shortly after the election to not say “steal the election” and instead were told to use “try to steal the election.”94 Allred also recalled that, at some point, theRNC legal team directed the copywriters not to use the term “rigged.”95

After the media called the election for former Vice President Joe Biden on Saturday, November 7, 2020, the RNC began to quietly pull back from definitive language about President Trump having won the election and instead used language of insinuation. For example, on November 10, 2020, Justin Reimer, RNC’s then-chief counsel, revised a fundraising email sent to the Approvals Group to remove the sentence that “Joe Biden should not wrongfully claim the office of the President.”96 Instead, Reimer indicated the email should read, “Joe Biden does not get to decide when this election ends. Only LEGAL ballots must be counted and verified.”97 Both Alex Cannon and Zach Parkinson signed off on Reimer’s edits.98

On November 11, 2020, Reimer again revised a fundraising email sent to the Approvals Group. This time, he revised a claim that “President Trump won this election by a lot” to instead state that “President Trump got 71 MILLION LEGAL votes.”99 Once again Cannon and Parkinson signed off on Reimer’s edits.100 Also on November 11, 2020, Jenna Kirsch, associate counsel at the RNC, revised a fundraising email sent to the Approvals Group to, among other things, remove the request “to step up and contribute to our critical Election Defense Fund so that we can DEFEND the Election and secure FOUR MORE YEARS.”101 Instead of “secure FOUR MORE YEARS,” Kirsch’s revised version stated a contribution would “finish the fight.”102 Once again Cannon and Parkinson signed off on these edits for the Trump Campaign.103 Regarding the change to finish the fight, Zambrano conceded, “I would say this a substantive change from the legal department.”104 Kirsch made numerous edits like this, in which she removed assertions about “four more years.”105 Such edits continued into late November 2020.

Even so, the fundraising emails from both the campaign and the RNC got more and more incendiary in the weeks after the election, so much so that the direct mail services for both, Iterable and Salesforce, rejected some ads for Terms of Service violations, and actually shut down RNC ads for a brief period after the attack.

The Select Committee interviewed an individual (“J. Doe”) who worked at Salesforce during the post-election period during which TMAGAC was sending out the fundraising emails concerning false election fraud claims.147 Doe worked for Salesforce’s privacy and abuse management team, colloquially known as the abuse desk.148 An abuse desk is responsible for preventing fraud and abuse emanating from the provider’s user or subscriber network.

Doe indicated to the Select Committee that, as soon as early 2020, they recalled issues arising with the RNC’s use of Salesforce’s services and that a“deluge of abuse would’ve started in June-ish.”149 Doe noted that Salesforce received a high number of complaints regarding the RNC’s actions, which would have been primarily the fundraising efforts of TMAGAC.150 In the latter half of 2020, Doe noticed that the emails coming from the RNC’s account included more and more violent and inflammatory rhetoric in violation of Salesforce’s Master Service Agreement (“MSA”) with the RNC, which prohibited the use of violent content.151 Doe stated that, near the time of the election, they contacted senior individuals at Salesforce to highlight the “increasingly concerning” emails coming from the RNC’s account.152 Doe explained that senior individuals at Salesforce effectively ignored their emails about TMAGAC’s inflammatory emails 153 and Salesforce ignored the terms of the MSA and permitted the RNC to continue touse its account in this problematic manner.154 Doe said, “Salesforce very obviously didn’t care about anti-abuse.”155

[snip]

Further, J. Doe, the Salesforce employee interviewed by the Select Committee, provided insight into the action that Salesforce took after the attack. Doe explained that after they became aware of the ongoing attack, they (Doe) took unilateral action to block the RNC’s ability to send emails through Salesforce’s platform.227 Doe noted that the shutdown lasted until January 11, 2021, when senior Salesforce leadership directed Doe to remove the block from RNC’s Salesforce account.228 Doe stated that Salesforce leadership told Doe that Salesforce would now begin reviewing RNC’s email campaigns to “make sure this doesn’t happen again.”229

Remember: The RNC successfully fought a subpoena from the J6C, which kept Salesforce information out of the hands of the Committee. They would have no such opportunity with a d-order from DOJ, though, and those records would show the same kind of awareness at Salesforce as Twitter and Facebook had that permitting Trump’s team to abuse the platform contributed to the violence.

After raising all this money, Trump reportedly then used it for purposes not permitted under campaign finance laws.

There was even a hilarious exchange from a Cannon deposition about how, as a lawyer working for the campaign, he could claim privilege over a discussion with Jared Kushner about setting up a PAC that could not coordinate with the campaign.

The appendix in the report has more details about where the funds eventually ended up — for example, in Dan Scavino’s pocket, or that of Melania’s dress-maker, or legal defense in investigations of these very crimes.

For example, from July 2021 to the present, Save America has been paying approximately $9,700 per month to Dan Scavino,171 a political adviser who served in the Trump administration as White House Deputy Chief of Staff.172 Save America was also paying $20,000 per month to an entity called Hudson Digital LLC. Hudson Digital LLC was registered in Delaware twenty days after the attack on the Capitol, on January 26, 2021,173 and began receiving payments from Save America on the day it was registered.174 Hudson Digital LLC has received payments totaling over $420,000, all described as “Digital consulting.”175 No website or any other information or mention of Hudson Digital LLC could be found online.176 Though Hudson Digital LLC is registered as a Delaware company, the FEC ScheduleB listing traces back to an address belonging to Dan and Catherine Scavino.177

[snip]

Through October 2022, Save America has paid nearly $100,000 in “strategy consulting” payments to Herve Pierre Braillard,195 a fashion designer who has been dressing Melania Trump for years.196

[snip]

From January 2021 to June 2022, Save America has also reported over $2.1 million in “legal consulting.” Many firms perform different kinds of practice, but more than 67% of those funds went to law firms that are representing witnesses involved in the Select Committee’s investigation whowere subpoenaed or invited to testify.

CNN’s report notes that on the financial side of the investigation, DOJ has acquired some cooperating witnesses (the Report hints at who those might include — and Cannon seems to have exposure on the obstruction side of the investigation even while getting good press for refusing to certify Trump’s production to NARA on the stolen document side).

On top of being an entirely different kind of crime, the financial trail may be one area where it is easier to show pushback on Trump’s false claims.

But J6C didn’t include that in its referrals, perhaps in part because Trump relied on the advice of one of the main GOP campaign finance firms, Jones Day, for some of the later financial decisions.

In any case, it turns out (as with many parts of the investigation) DOJ has quietly been investigating this for some time. Which may make the financial side of the Trump’s claims a key part of proof available about his campaign’s awareness that he was lying.

Special Counsel Jack Smith Taught DOJ How to Alphabetize by Last Name! A Tale of Two Subpoenas, and Other Self-Mockery

December 6, 2022/26 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection, Leak Investigations /by emptywheel

In the wake of the appointment of Jack Smith, journalists (including yours truly) and TV lawyers everywhere are overreading everything that happens in Prettyman Courthouse, when the reality is that the visible signs of investigation into Donald Trump are largely logical next steps from prior known steps before Smith was appointed. What we’re seeing, thus far, is almost certainly in reality the expected flurry of activity after the election pause ended.

So to make fun of myself and others, let me overread.

BREAKING: Jack Smith has taught DOJ how to alphabetize by last name!

I base that claim on two subpoenas from the same investigation: This subpoena, to some Arizona Republicans, first reported by WaPo in July. And this subpoena, to Milwaukee County Clerk, also reported by the WaPo, today.

Both are from grand jury 22-5, which earlier this year was focusing on the fake elector plot. Both include the same FBI agent, Daniel Mehochko, as the recipient.

But the first subpoena was sent in June, under Matthew Graves (it was signed by AUSA Thomas Windom). The second subpoena was sent on stationary naming Jack Smith (it was signed by AUSA Matthew Burke).

So, in my self-mocking overreading, the difference between the two closely related subpoenas must reflect the passage in time and new rules we’ll ascribe, with no basis, to Jack Smith (but which are almost certainly due to some other thing).

On that logic, one key difference is that in the new subpoena — the one sent under stationary with Smith’s name on it — is that a fairly standard list of names of top Trump associates is alphabetized by last name, whereas the same list in June was alphabetized by first name. (The number after the names in the left column reflect where they showed up in that earlier list.)

There are other differences, too. The newer subpoena covers an earlier but shorter timeframe, from June 1, 2020 to January 20, 2021 than the older one, which covers October 1, 2020 to then present, June 2022. The older subpoena asks for communications with “any member, employee, or agent” of the Executive or Legislative branches, but only asks for comms with agents of Donald J. Trump. The newer one doesn’t ask for comms with Congress (though that may be because members of Congress weren’t involved as they were with the fake electors). But it does ask for comms involving Donald J. Trump, the man, not just the campaign.

Perhaps the most interesting difference — one that may reflect a change of real rather than self-mocking import — is that Joshua Findlay (background here) and Mike Roman (background here) are not on the newer list. Roman had his phone seized in September.

Here are some other events that have happened since Jack Smith was appointed that are probably just the steps that prosecutors already had planned, including some who are probably not on Smith’s team:

November 18: A DC prosecutor who has focused on important assault cases, Robert Juman, issued a subpoena to Alex Holder, the documentary film maker who tracked Trump and his family. That was first reported by Politico.
November 29 and December 6: Stephen Miller makes two appearances before the grand jury.
December 1: Dan Scavino, William Russell, and William Harrison testify before the grand jury.
December 2: The two Pats — Cipollone and Philbin — testify for a combined ten hours to the grand jury.

Update: As noted in the comments, the earlier list was also alpha order, just by first name. I’ve attempted to mock myself some more above accordingly.

Trump Is a Mob Boss Whose Omertà Has Started to Fail

December 5, 2022/101 Comments/in 2020 Presidential Election, 2022 Mid-Term Election, January 6 Insurrection, Leak Investigations /by emptywheel

In the opening paragraph of Ruth Marcus’ latest column about Donald Trump, she admits that on July 21, 2015, she assured readers, “Do not worry about Donald Trump becoming president.”

It’s only fair, I guess, for me to start a response to Marcus’ column by noting that on July 30, 2015, I told people to worry.

[S]o long as the base continues to eat up Trump’s schtick –the Republicans are going to be stuck with him, because they have few means of controlling him and even fewer to limit any damage he might do if provoked.

[snip]

If all proceeds as things appear to be proceeding — although, yes, it is far too early to say for certain that it will — Republicans will ultimately be applauding the prospect of President Trump.

Marcus’ 2015 column wasn’t all embarrassingly wrong. She correctly noted that slightly over half of Republicans still recognized that Trump did not ideologically match the Republican party, then observed that Trump provided one to replace Republican ideology: Trumpism.

56 percent of all those surveyed, and 54 percent of Republicans, said Trump does not reflect the “core values” of the Republican Party.

[snip]

Trump’s appeal will, hopefully, be fleeting, but it feels different from the flavor-of-the-month parade of GOP front-runners — Michele Bachmann, Herman Cain, Rick Santorum — four years ago. His prominence cannot be attributed to simple celebrity and name recognition.

More than any of those predecessors, it taps into a fundamental anger among a portion of the electorate. Trump is the un-Reagan — unsmiling and unmoored to any ideology other than Trumpism — but his surly message matches the times.

In this week’s column, Marcus cited several other of her columns about Trump. A December 2020 one in response to a long video sowing the Big Lie that would, a month later, incite an attack on the nation’s Capitol, observed that Trump will say what he needs to, even while Marcus hoped that Trump would just melt away.

He will say whatever he needs at the time he needs to say it.

Deluded or evil — in the end, it makes little difference. What matters is the impact of Trump’s words. Perhaps we are in the final, most florid throes of Trump and Trumpism. No doubt it will be far harder to play the bully without the bully pulpit. I have always thought of the Republican Party — Republican elected officials, especially — under the thumb of Trump like the flying monkeys under the Wicked Witch of the West. Once Dorothy throws water on the witch and she melts, the monkeys rejoice in her demise — and their liberation.

What’s worrisome is that Trump isn’t melting — not fast enough, anyway.

An August 2022 one, which doesn’t mention the January 6er who, weeks earlier, had responded to Trump’s incitement and tried to breach the Cincinnati FBI office before dying in a standoff with cops, describes that Trump and Lindsey Graham were promising violence if Trump were charged.

Donald Trump and his defenders are using a version of that gambit to deter the Justice Department from prosecuting the former president, arguing that going after Trump would dangerously incite his already angry followers.

From there, Marcus engages in a factual analysis of the differences between Hillary’s use of a private server and Trump’s theft of highly classified documents, as if that would dissuade anyone from political violence.

This most recent column spends a lot of time reflecting on her — Ruth Marcus’ — thought process when deciding whether to write about Trump. Before July 2015, it was beneath her dignity.

There was a time, in the naive spring and summer of 2015, when I deemed Donald Trump beneath my notice and refused to write about him:

Then she tried calling him out for a while.

There was a time, in the increasingly appalling months and years that followed, that I deemed Trump too dangerous to disregard and I could not stop calling out his never-ending, ever-escalating outrages against American democracy.

Then, until he started riling up mobs in December 2020, she got bored and ignored him.

[D]uring his final stretch in office, and in the years since, I mostly averted my gaze.

As to this particular column, written over six years after telling us not to worry, Marcus says that, even though, “no minds will be changed,” Trump’s latest embrace of authoritarianism must be denounced. Passive voice.

But I mostly thought: Why bother? Shaming targets and convincing readers are the columnist’s goals. With Trump, no minds will be changed, and neither will his behavior.

And yet, there are times when attention must be paid — if only to lay down a marker, if only (grandiose as this may sound) so historians will understand: This went too far. This cannot be allowed to stand without being denounced.

Having decided Donald Trump will be denounced, Ruth Marcus then quotes him.

In full.

The entire Tweet that Marcus found required denouncing, she reproduces in full, and only then starts scolding: “deranged,” “hijacked,” “megalomania,” “bluster,” with each scold reinforcing the tribalism that Trump has always deployed when he’s at risk. In so doing, she has voluntarily become a bit player in Trump’s reality TV show, reinforcement to the mob that Trump retains the power to earn Ruth Marcus’ scolds.

Like Marcus, I don’t think Trump’s desperate wails should be ignored. But I think there is an alternative to “giv[ing] him oxygen.” There’s certainly an alternative to disseminating his screed, which always reinforces the tribalism that Trump uses to survive. Disseminating Trump’s words unbroken, I’m convinced, only serves to signal to his supporters where the dividing lines lay, while heightening the import of that tribalism and Trump’s role in it. Trump is powerful because the liberals he has trained people to despise say he is by disseminating Trump’s words for him.

I prefer to talk about why Trump continues to ratchet up his screeds, with each new week, using increasingly violent rhetoric to ensure he’ll go viral on Twitter. He has to. Or rather, as Marcus herself recognized, “He will say whatever he needs at the time he needs to say it.”

He’s contractually stuck on his loser social media platform, which means the quickest way to get attention is to invite the scolding of people like Marcus. He’s well aware that others — Elmo, Ron DeSantis, even Kanye West — have easier means to command people’s attention. Indeed, at this point, Trump was a mere prop in the reality show that Kanye’s handlers orchestrated.

And most importantly, Trump can no longer promise to wield the tools that led others to believe they could respond to Trump’s calls with impunity — the power to corrupt the FBI and DOJ, the increasing stranglehold on the Republican party, perhaps most importantly, the power of clemency. Trump’s latest wails came on a day when, after having been smacked down by two of his own Appellate appointees, even his most reckless and ill-suited attorneys were probably explaining to Trump that he has almost no options left but to try to minimize the consequences for stealing classified documents. His wails came on a day when the two Pats, Cipollone and Philbin, men who know how he used pardons to pay off coup-conspirators and how he incited a mob to assassinate his Vice President and how he refused to use the power of the Presidency to protect Mike Pence, testified for a combined ten hours to one or more grand juries. Stephen Miller, Dan Scavino, and two others of Trump’s close aides also testified against their former boss last week. Trump even interspersed his calls for a coup with feeble attempts to discount any verdict a jury might soon — today, perhaps! — deliver against his eponymous corporate person.

Trump’s a mob boss whose omertà has started to fail.

Don’t get me wrong. Trump is dangerous as hell, and his mob will continue to pursue political violence whether or not Trump faces accountability. Trump will not melt away and even if he did those liberated from his control may prove to be more dangerous without even something as squalid as Trump to believe in.

But he is also, at this moment, as vulnerable as he has been in at least a decade.

And to a significant extent, his increasingly shrill wails are an attempt to hide that.

Yes, they are also an attempt to mobilize political violence to reverse that vulnerability. But we would do far better to describe all the ways he can no longer deliver his part of the bargain — impunity — than to willfully serve as content mules for his words of incitement.

Kash Patel’s Immunized Testimony Is about Premeditation, Not (Just) about Declassification

October 27, 2022/85 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

Thankfully, the NYT has written a second story reporting that DOJ is considering asking Beryl Howell to give Kash Patel use immunity in the Trump stolen document investigation, because I was about to go back and write about the first one.

Earlier this month, the prosecutors summoned Mr. Patel to testify before a grand jury in Washington hearing evidence about whether Mr. Trump had mishandled classified documents and obstructed justice when he refused to return the records to the government.

Mr. Patel repeatedly invoked his Fifth Amendment right against self-incrimination. In response, prosecutors asked a top federal judge in Washington to compel Mr. Patel to answer questions — a move Mr. Patel’s lawyers have strenuously opposed. The question now is whether the Justice Department will grant him immunity in order to secure his testimony.

The first was newsworthy — as I laid out in this thread and as Jay Kuo wrote up in this piece — for its silence about the fact that Stanley Woodward is the defense attorney for both people described in the story (the other was Walt Nauta, the valet who moved documents around before Evan Corcoran did a search of what was left).

Woodward represents a slew of key defendants who might serve as firewalls in a larger and much more damning crime: in addition to Patel and Nauta, Dan Scavino, Peter Navarro, Oath Keeper Kelly Meggs (who has ties to Roger Stone), and the guy who kicked off the entire riot, Ryan Samsel. Woodward’s a decent defense attorney (not least because, unlike many Trump attorneys, he is a defense attorney), but he’s got a conspiracy streak that should be accounted for when reporting on his representation of events.

Both NYT stories portray Patel’s unnamed attorneys as resisting the move to immunize him.

In response, prosecutors asked a top federal judge in Washington to force Mr. Patel to testify — a move fought by Mr. Patel’s lawyers, who are concerned the government wants to use Mr. Patel’s own statements to incriminate him. [first]

[snip]

The push for the testimony has also created friction between the Justice Department and Mr. Patel’s lawyers, who have argued that the department could use his statements against him if they build out a larger obstruction investigation. [second]

This is, frankly, silly reporting. Stanley Woodward doesn’t get a choice in whether Patel is immunized. That’s the point: You immunize a witness to compel his testimony. And defense attorneys and prosecutors are adversarial; there is supposed to be “friction” between them. That’s the nature of an adversarial system.

Including these claims in the story without explaining the import of compelled testimony does a disservice to readers and makes the story far more of vehicle for obstruction.

Best as I can tell (it’s hard to tell, because the part of the earlier story addressing immunity was so muddled), this version of the story adds no new news except for the self-congratulatory detail that Trump only learned that Kash took the Fifth from the earlier story.

Mr. Trump first learned that Mr. Patel had invoked the Fifth Amendment when The New York Times reported it on Monday, according to person briefed on the matter.

This is not actually interesting unless you’re a NYT reporter or someone like Stanley Woodward wanting to make clear he’s not directly consulting on these defense issues in advance with Trump himself, which is different than consulting with someone like Boris Epshteyn, who (unlike Woodward) is not a defense attorney but nevertheless is purportedly in charge of Trump’s defense. It just so happens that these anonymously sourced stories provide all the details that Trump would need and Woodward would want public to make sure he still got paid. (Not addressed, however, is a reference in the earlier story boasting about the treatment of the video surveillance that would have led to changed testimony from Nauta.)

Sadly, this story utterly misses several key points about the import of Kash Patel’s testimony.

First, consider Kash’s potential responses if Beryl Howell does grant him use immunity. Either he testifies truthfully, he lies, or he still refuses to testify and gets jailed for contempt. This is the real tension that Woodward is getting at — what should Kash do if he is immunized, as if the story is begging for directions from those paying the bills. While Trump was still President, the answer was easy: lie and await a pardon. It’s more complicated when you’re firewalling someone who may not return to the presidency anytime soon.

More importantly, consider possible reasons why Kash might have invoked the Fifth, if it was anything more than an attempt to avoid testifying in the absence of Executive Privilege claims.

NYT — which has spread the cover story that the only Russian documents Trump attempted to disseminate as he left office were the unclassified Strzok-Page texts (ABC had a detailed story about what really happened) — says that this is all about whether Kash’s claims that Trump declassified the documents he stole are true.

Federal prosecutors investigating former President Donald J. Trump’s handling of national security documents want to question one of his confidants about a claim that Mr. Trump had declassified national security documents he took when he left the White House.

[snip]

But the Justice Department’s interest in questioning Mr. Patel about the claim shows that prosecutors see it as potentially relevant to their investigation into the handling of the documents and whether Mr. Trump or his aides obstructed the government’s efforts to reclaim them.

If all Kash was asked about was whether — at a time when he was supposed to be running the Pentagon but instead happened to be at the White House at the precise moment Trump waved a magic wand to mass declassify documents he intended to steal — Trump had really declassified those documents, there’d be little cause to invoke the Fifth and he would have invoked Executive Privilege instead. If Trump didn’t declassify the documents, Kash would be admitting to lying in Breitbart, which is not only not a crime, but it is generally assumed of columns that appear in Breitbart.

If Trump actually did declassify these documents with Kash as a witness, Kash has no legal exposure whatsoever.

So (again assuming Kash invoked the Fifth because he believed he had real exposure himself, which may not be the case), what might be those possible areas of exposure? Some possibilities include [these are hypotheticals]:

At some time before January 20, 2021, Kash and Trump coordinated to select a group of documents — including the Russian binder, but also (per the Breitbart piece quoted in the search affidavit) the Ukraine quid pro quo and other topics of national security import — that Trump would steal when he left; this is consistent with a great deal of what Kash has said publicly.
The Russian binder did circulate and because the declassification process was never finalized before Trump left office — and appears not to have been finalized at all — any classified documents in it would expose the person circulating the binder to Espionage Act charges himself. If an unredacted Carter Page application were included, it would expose the person to FISA violations as well, as I noted in August.
Trump and Kash both know that he never declassified the documents he stole, but leading up to May 5 — at a time when Trump was trying to stave off further investigation and even before FBI reviewed the boxes returned in January — they coordinated the false Breitbart column and the false claims about declassification since.
The decision to make Kash and John Solomon Trump’s representatives to the Archives was an effort to assess what was stolen.
Kash was in some way part of the curating process of choosing which stolen classified documents to retain after 2021, effectively a continuation of the role he started to play in 2017, for which he was rewarded handsomely.

Again, all of these are strictly hypothetical! But they more closely match the known facts than the cover story that Trump was only disseminating unclassified Strzok texts.

And for all the NYT’s focus on obstruction — goddamnit, Mike Schmidt, will you never tire of reporting that Trump is primarily exposed to obstruction?!?! — many of these actions would expose Patel not just to obstruction, but to charges under the Espionage Act himself (and, as I noted, potentially FISA).

I described on August 12 — four days after the search — that if Trump asked Kash or John Solomon to access the stolen classified documents at Mar-a-Lago, then it would expand Trump’s exposure under the Espionage Act.

If Trump and Kash worked together while still in the White House to select a bunch of classified documents to steal and further disseminate, it might expose one or both to 793d.

(d)Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or

If, before DOJ started making the more formalized requests for Trump to return the stolen documents (and so at a time when Trump might plausibly claim he was still sorting through his documents), Kash disseminated them forward from Mar-a-Lago, it might expose one or both to 793f.

(f)Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

If Kash coordinated with Trump to try to create post hoc justification to keep the stolen classified documents — including with the Breitbart column and his subsequent claims about declassification — it might expose both to 793g.

(g)If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

Again, this post involves a lot of hypotheses (though with the advantage that, unlike the NYT, I’m not under the illusion that the only Russian documents Trump planned to disseminate were unclassified Strzok texts). But this is an absolutely critical thought experiment (especially when trying to assess venue, as Brandon Van Grack did here) because the question before DOJ is not, and never was, solely whether a former President refused to return documents he might implausibly claim to have declassified.

The question has always been about whether Trump had a premeditated plan to steal classified documents, and what Trump did with the classified documents after he stole them. Every single one of Kash’s claims to be privy to a purported declassification are also claims about premeditation and dissemination to people not authorized to have classified documents.

And that’s why he’d have a credible Fifth Amendment claim.

It would be unprecedented to charge a former President with violating 18 USC 793e for refusing to return classified documents — though I think DOJ has a clear case (with the South Florida venue that Van Grack explains in his piece) for documents retained between June 3 and August 8.

But if DOJ had evidence that Trump had a premeditated plan to steal classified documents and disseminate them to frothers — some with suspect associates — it would expand his exposure into crimes that are not close calls at all.

And that’s why the decision whether to immunize Kash is not the hard trade-off that people are making it out to be. DOJ may or may not be able to mount a case against Kash himself. But if he were a key witness in a 793g case, it would make the gravity of crimes charged under the Espionage Act far more clearcut, even if charged in Florida. It would make any case against Trump far easier to prove.

Kash Patel is not primarily a witness about whether Trump declassified the documents he stole. He’s a witness about whether Trump had a premeditated plan to steal classified documents and disseminate them to people not entitled to have them. And that’s why the serial reports about DOJ seeking to immunize Kash’s testimony are interesting.

The Evidence Needed for a Trump Prosecution

April 4, 2022/68 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

It would be easier to prosecute Trump for January 6 than Peter Navarro. I say that (in advance of today’s debate about referring Navarro and Dan Scavino for contempt) because it is far easier to tie Trump’s actions directly to the successful obstruction of the vote certification on January 6 than it would Navarro’s, and Navarro’s actions are fairly tangential to the proof that Trump’s actions met the elements of obstruction of the vote certification.

Months ago, I laid out how to prosecute Trump using the framework that DOJ has already used with hundreds of January 6 defendants. But in this post, I will show how much evidence DOJ has already collected proving the case against Trump by using the framework for Trump’s criminal exposure laid out by Judges Amit Mehta and David Carter, incorporating a key point made by Judge Reggie Walton.

In his opinion upholding the lawsuits against Trump, Amit Mehta found that it was plausible Trump conspired with the militias and also that he bore aid-and-abet liability for assaults at the Capitol (see this post and this post). He found that:

Trump and the militias jointly pursued an effort to disrupt the vote certification
Trump planned the unpermitted march to the Capitol
Trump encouraged the use of force and threats to thwart the certification from proceeding
Trump knew supporters would respond to his calls to come to DC and march on the Capitol
Trump called for collective action
Trump intended his “fight like hell” comment to be taken literally and rioters did take it literally
Trump ratified the riot

In his opinion finding that one email from John Eastman must be turned over to the January 6 Committee on a crime-fraud exception (see this post), Carter laid out the following proof that Trump obstructed the vote certification:

Trump tried to persuade Pence to disrupt the vote certification
He publicly appealed to Pence to do so
He called on his followers to walk to Congress to pressure Pence and Congress

Carter laid out this evidence that Trump had corrupt intent:

Proof that he had been told the vote fraud claims were false and his own request of Brad Raffensperger showed he knew he had lost
Trump had been told the Eastman’s plan was not legal

Carter laid out this evidence he had entered into a conspiracy:

Trump held lots of meetings to talk about plans to obstruct the vote count
Trump ratified Eastman’s plan in his Ellipse speech

To those two frameworks finding that Trump probably conspired to obstruct the vote certification, Judge Walton held that you cannot point to back-room plotting to get to the intentions of the actual rioters; you can only look at what the rioters themselves accessed, Trump’s public speech and Tweets (see this post).

This table (which is still very much a work in progress) lays out what evidence would be needed to prosecute Trump. The horizontal Elements of 1512(c)(2)/Relevant to Motive and Co-Conspirators sections show what is necessary given the elements of the offense as laid out by the judges and in DOJ filings, versus what might provide evidence of a broader conspiracy. The Must Have/Nice to Have columns show that for each kind of proof, there’s what is necessary and what would be really useful before indicting a former President.

In other words, the things in the yellow boxes are the things that would be necessary to show that Trump obstructed the vote certification. They basically amount to proof that things that Trump did brought the rioters to DC and to the Capitol and that he had the corrupt mens rea to charge with obstruction. I include there proof that Trump conspired with the militias, which I consider necessary because the Proud Boys, especially, took the bodies that Trump sent them and made those bodies tactically effective.

While prosecutors are still working on tying Roger Stone to both militias and tying Alex Jones and Ali Alexander into the crimes at the Capitol, much of the rest of this evidence has already been collected and rolled out in charging papers. For example, I showed some of the proof that rioters responded to Trump’s attacks on Pence by targeting their own attacks on Pence. There are a number of Trump comments that directly led hundreds of rioters to start making plans to come to DC, including arming themselves; NYT recently laid out the most central communication, a Tweet on December 19, 2020, though not only is that focus not new, it’s the tweet and response to which Arieh Kovler predicted the attack on the Capitol in real time.

A number of the other things you’d want to have before you charged Trump are available to DOJ:

Details of how the march to the Capitol happened and why it — and Ali Alexander’s permitted rallies at the Capitol — made a riot more likely
Explanations why Ellipse rally organizers balked at including people like Ali Alexander and Roger Stone
Testimony from Pence’s aides about how Trump pressured his Vice President in private

It is true that the testimony of several people — those involved in selling the Big Lie and Scavino’s coordination of the riot (including a particular focus on The Donald) — would be really useful. But that testimony is as important to proving that they were part of the conspiracy along with Trump.

Pat Cipollone’s tesitmony would be incredibly useful to that case, too. Normally, he could invoke privilege, but Trump already waived some of that privilege by sharing details about his conversations with Cipollone with Sean Hannity. If Cipollone did cooperate with DOJ, I don’t think he would leak that.

Similarly, the Relevant to Motive and Co-Conspirators rows — showing Trump’s coordination with Congress or his prior planning of it — would be really useful to have in prosecuting Trump. But ultimately, as Judge Walton held, what Trump did in private could not have influenced most of the rioters, because they never knew those details. As such, some of that information — precisely the kinds of stuff that TV lawyers say would be the first overt signs that Trump was a subject of the investigation — is more useful for including others in the conspiracy.

The most important of this evidence — communications from the December 18 meeting and comms during the day of the riot — are already in DOJ’s possession from Rudy’s seized phones, whether or not they obtained a warrant for that content yet.

Update: I’ve tweaked the horizontal headings on the table to clarify that the top half of the table stems from the elements of offense for 1512(c)(2), whereas the bottom half is clearly related and may help prove mens rea or incorporate other co-conspirators, but is not necessary (in my opinion) to meeting the elements of obstruction.

But His Emails! Kushner’s Unique Exposure under the Presidential Records Act

January 18, 2021/51 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, Mueller Probe /by emptywheel

The focus on what Trump will burn down in his final days as President has brought renewed focus on whether Trump will manage to destroy evidence on his way out. For example, Trump’s refusal to concede defeat may have delayed the normal archiving process, not to mention the instructions to White House employee that there needed to be an archiving process.

When Trump lost the November election, records staffers were in position to transfer electronic records, pack up the paper ones and move them to the National Archives by Jan. 20, as required by law. But Trump’s reluctance to concede has meant they will miss the deadline.

“Necessary funding from the (White House) Office of Management and Budget was delayed for many weeks after the election, which has caused delays in arranging for the transfer of the Trump presidential records into the National Archives’ custody,” the National Archives said in a statement to The Associated Press. “Even though the transfer of these records will not be completed until after Jan. 20, the National Archives will assume legal custody of them on Jan. 20 in accordance with the Presidential Records Act.”

White House spokesman Judd Deere said Saturday that contesting the election did not cause the delay in getting the president’s records transferred to the archives and that guidance was available to staffers on how to pack up their materials.

One person familiar with the transition said guidance typically emailed to executive branch employees explaining how to turn in equipment and pack up their offices was sent out in December, but quickly rescinded because Trump insisted on contesting the election.

With little guidance, some staffers in the White House started quietly calling records workers to find out what to do.

In early December, CREW and the National Security Archive tried to sue to preserve records, requesting a Temporary Restraining Order. While a key part of that suit — which the parties may be moving to novel litigation over — pertains to whether it’s enough to take a screen shot of an electronic communication, the suit also focuses on Jared Kushner’s well-documented habit of using private communications.

72. Notwithstanding these requests and the preservation directive, Mr. Kushner and his wife and Advisor to the President Ivanka Trump reportedly re-routed their personal email accounts to Trump Organization computers within one to two days of receiving the September 25, 2017 letters. Mar. 21, 2019 Oversight Letter, at 3.

73. In a December 2018 interview with then-House Oversight and Government Reform Chairman Gowdy and Ranking Member Cummings, Mr. Kushner’s counsel “confirmed that Mr. Kushner has used—and continues to use—WhatsApp” to create or send Presidential records, including to communicate “with people outside the United States.” Mar. 21, 2019 Oversight Letter, at 6. When asked by Rep. Cummings if “Mr. Kushner has ever used WhatsApp to discuss classified information,” his counsel replied, “That’s above my pay grade.” Id.

74. WhatsApp is a non-official, encrypted electronic messaging application.

75. Mr. Kushner’s lawyer further explained that Mr. Kushner preserves Presidential records created or sent from his WhatsApp account by “tak[ing] ‘screenshots’ of these communications and forward[ing] them to his official White House email account or to the National Security Council.” Mar. 21, 2019 Oversight Letter, at 6 (emphasis added).

76. Mr. Kushner’s attorney also admitted that between January and August 2017, Mr. Kushner used his personal email account to send and receive official emails. Mar. 21, 2019 Oversight Letter, at 2-3.

The government is trying to make all this go away quickly though, arguing, in part, that the NGOs suing have no private right of action under the Presidential Records Act (meaning there’s no way for them to demand more diligent treatment of records).

Here, Plaintiffs cannot make such a showing; not only does the PRA lack any private right of action, see Judicial Watch, Inc. v. NARA, 845 F. Supp. 2d 288, 299 n.5 (D.D.C. 2012), but, as discussed above, the D.C. Circuit has concluded that it affirmatively precludes judicial review.

That’s one of the reasons I’m so interested in what happened in the last week in another lawsuit, Andrew McCabe’s lawsuit against DOJ for being fired as a result of Trump’s personal retaliation against him.

Whereas CREW and NSA sued in December, McCabe instead submitted a document subpoena to the Executive Office of the President on November 4 asking for materials relating to McCabe and his firing. Since then, the parties have been squabbling over how to deal with the subpoena and, specifically, how to make sure that relevant records stored on private accounts would be preserved.

In a mid-December hearing, Judge Randolph Moss endorsed, in principle, that such records should be preserved both by those who’ve already left government and those who remained at the White House.

That’s when things got interesting.

According to a status report submitted the day of the insurrection, even though this dispute was primarily about those still in the White House, the government tried to claim it would be too onerous to ask current White House employees — McCabe focused specifically on Hope Hicks, Dan Scavino, Stephen Miller, and Jared Kushner — to simply ask these four specifically whether they have archived their private server emails and WhatsApp chats properly and if not, to both do so and tell McCabe’s team if they haven’t.

Defendants’ position is as follows: Plaintiff asks that Defendants apply the procedure outlined in paragraph five above to four current EOP employees (Hope Hicks, Jared Kushner, Stephen Miller, and Daniel Scavino) to ensure that the individuals have copied any PRA records to an official EOP account before the end of their service at the White House. The White House has reminded all employees since the November election of their existing obligation to do just that—ensure that any official communications conducted on personal devices have been preserved on an official EOP account before the transition. Thus, there is no need to provide additional reminders to these individuals, particularly where there is no reason to presume that they have not complied with their obligations to preserve records. The benefit, if any, of requiring another reminder is outweighed by the burden on the EOP and its employees, especially given the deference owed to the White House in matters of discovery, see Cheney v. United States District Court for the District of Columbia, 542 U.S. 367, 387 (2004), and the alleged peripheral, at best, role of the four EOP employees in this litigation, as to which the White House is not even a defendant.

As McCabe’s team pointed out, it’s not enough to say these White House employees have a general obligation under the toothless PRA; these employees should also know they have a specific obligation under a lawsuit in which discovery has already been granted.

Moreover, a general post-election reminder to preserve documents does not suffice to inform the four current EOP employees of their obligation, specific to this litigation, to preserve relevant documents.

There’s no reason for DOJ to react in the way they did unless they had reason to believe the simple document retention request would cause problems. That’s particularly true given that, over the course of the Mueller investigation, DOJ has learned over and over that Jared (and people like Steve Bannon) weren’t archiving official records on specifically this topic. They already know details about what Jared (and Bannon) destroyed, which may explain why they responded in this fashion.

On January 8, Judge Moss sided with McCabe on this dispute, and ordered DOJ to give the four people specific warnings.

I assume, like everyone else, that Trump and his spawn have been lighting bonfires on their way out.

But in Jared’s case, he will now be asked, legally, whether he has done so.

The PRA still doesn’t have any teeth. But we may learn whether DOJ has been covering for Jared’s past document destruction, including on matters pertaining to the Mueller investigation and Trump’s vengeance for the investigation.

Four Data Points on the January 6 Insurrection

January 11, 2021/209 Comments/in emptywheel, January 6 Insurrection /by emptywheel

The NYT and WaPo both have stories beginning to explain the failures to protect the Capitol (ProPublica had a really good one days ago). The core issue, thus far, concerns DOD’s delays before sending in the National Guard — something that they happened to incorporate into a timeline not long after the attack, before the Capitol Police or City of DC had put their own together (the timeline has some gaps).

I can think of two charitable explanations for the lapses. First, in the wake of criticism over the deployment of military resources and tear gas against peaceful protestors to protect Donald Trump in June, those who had been criticized were reluctant to repeat such a display of force to protect Congress (and Mike Pence). In addition, in both DOJ and FBI under the Trump Administration, job security and career advancement depended on reinforcing the President’s false claims that his political supporters had been unfairly spied on, which undoubtedly created a predictable reluctance to treat those political supporters as the urgent national security threat they are and have always been.

Those are just the most charitable explanations I can think of, though. Both are barely distinguishable from a deliberate attempt to punish the President’s opponents — including Muriel Bowser and Nancy Pelosi — for their past criticism of Trump’s militarization of the police and an overt politicization of law enforcement. Or, even worse, a plan to exploit these past events to create the opportunity for a coup to succeed.

We won’t know which of these possible explanations it is (likely, there are a range of explanations), and won’t know for many months.

That said, I want to look at a few data points that may provide useful background.

Trump plans to pardon those in the bunker

First, as I noted here, according to Bloomberg, Trump has talked about pardoning the four men who’ve been in the bunker with Trump plotting recent events, along with Rudy Giuliani, who is also likely to be pardoned.

Preemptive pardons are under discussion for top White House officials who have not been charged with crimes, including Chief of Staff Mark Meadows, senior adviser Stephen Miller, personnel chief John McEntee, and social media director Dan Scavino.

I like to think I’ve got a pretty good sense of potential legal exposure Trump’s flunkies have, yet I know of nothing (aside, perhaps, from McEntee’s gambling problems) that these men have clear criminal liability in. And yet Trump seems to believe these men — including the guy with close ties to far right Congressmen, the white nationalist, the guy who remade several agencies to ensure that only loyalists remained in key positions, and the guy who tweets out Trump’s barely-coded dogwhistles — need a pardon.

That may suggest that they engaged in sufficient affirmative plotting even before Wednesday’s events.

Mind you, if these men had a role in coordinating all this, a pardon might backfire, as it would free them up to testify about any role Trump had in planning what happened on Wednesday.

Trump rewards Devin Nunes for helping him to avoid accountability

Several key questions going forward will focus on whether incompetence or worse led top officials at DOD to limit the mandate for the National Guard on January 6 and, as both DC and the Capitol Police desperately called for reinforcements, stalled before sending them.

A key player in that question is Kash Patel, who served as a gatekeeper at HPSCI to ensure that Republicans got a distorted view of the Russian intelligence implicating Trump, then moved to the White House to ensure that Trump got his Ukraine intelligence via Patel rather than people who knew anything about the topic, and then got moved to DOD to oversee a takeover of the Pentagon by people fiercely loyal to Trump.

And a key player in coordinating Kash’s activities was his original boss, Devin Nunes. On Monday, Trump gave Nunes the Medal of Freedom, basically the equivalent of a pardon to someone who likely believes his actions have all been protected by speech and debate. The entire citation for the award is an expression of the steps by which Trump, with Nunes’ help, undermined legitimate investigations into himself. In particular, Trump cited how Nunes’ efforts had hollowed out the FBI of people who might investigate anyone loyal to Trump.

Devin Nunes’ courageous actions helped thwart a plot to take down a sitting United States president. Devin’s efforts led to the firing, demotion, or resignation of over a dozen FBI and DOJ employees. He also forced the disclosure of documents that proved that a corrupt senior FBI official pursued a vindictive persecution of General Michael Flynn — even after rank and file FBI agents found no evidence of wrongdoing.

Congressman Nunes pursued the Russia Hoax at great personal risk and never stopped standing up for the truth. He had the fortitude to take on the media, the FBI, the Intelligence Community, the Democrat Party, foreign spies, and the full power of the Deep State. Devin paid a price for his courage. The media smeared him and liberal activists opened a frivolous and unjustified ethics investigation, dragging his name through the mud for eight long months. Two dozen members of his family received threatening phone calls – including his 98 year old grandmother.

Whatever else this debasement of the nation’s highest award for civilians might have done, it signaled to Nunes’ team — including but not limited to Patel — Trump’s appreciation for their work, and rewarded the guy he credits with politicizing the FBI.

That politicization is, as I noted above, one of the more charitable explanations for the FBI’s lack of preparation on Wednesday.

~~Interestingly, Nunes is not one of the members of Congress who challenged Biden’s votes after law enforcement restored order.~~

Corrected: Nunes did object to both AZ and PA.

Trump takes steps to designate Antifa as a Foreign Terrorist Organization

The day before the insurrection, Trump signed an Executive Order excluding immigrants if they have any tie to Antifa. Effectively, it put Antifa on the same kind of exclusionary footing as Communists or ISIS terrorists. Had Trump signed the EO before he was on his way out the door, it would have initiated a process likely to end with Antifa listed as a Foreign Terrorist Organization, giving the Intelligence Community additional intelligence tools to track members of the organization, even in the United States (the kind of tools, not coincidentally, that some experts say the FBI needs against white supremacist terrorists).

The EO will have next to no effect. Joe Biden will rescind it among the other trash he needs to clean up in the early days of his Administration.

But I find it curious that Trump effectively named a domestic movement a terrorist organization just days before multiple Trump associates attempted to blame Antifa for the riot at the Capitol.

That effort actually started before the order was signed. Back in December, Enrique Tarrio suggested that the Proud Boys (a group Trump had called to “Stand by” in September) might wear all black — a costume for Antifa — as they protested.

“The ProudBoys will turn out in record numbers on Jan 6th but this time with a twist…,” Henry “Enrique” Tarrio, the group’s president, wrote in a late-December post on Parler, a social media platform that has become popular with right-wing activists and conservatives. “We will not be wearing our traditional Black and Yellow. We will be incognito and we will spread across downtown DC in smaller teams. And who knows….we might dress in all BLACK for the occasion.”

The day after the riot, Matt Gaetz relied on a since-deleted Washington Times post to claim that the riot was a false flag launched by Antifa.

In a speech during the process of certifying President-elect Joe Biden, Gaetz claimed there was “some pretty compelling evidence from a facial recognition company” that some Capitol rioters were actually “members of the violent terrorist group antifa.” (Antifa is not a single defined group, does not have an official membership, and has not been designated a terrorist organization, although President Donald Trump has described it as one.)

Gaetz attributed this claim to a short Washington Times article published yesterday. That article, in turn, cited a “retired military officer.” The officer asserted that a company called XRVision “used its software to do facial recognition of protesters and matched two Philadelphia antifa members to two men inside the Senate.” The Times said it had been given a copy of the photo match, but it didn’t publish the picture.

There is no evidence to support the Times’ article, however. An XRVision spokesperson linked The Verge to a blog post by CTO Yaacov Apelbaum, denying its claims and calling the story “outright false, misleading, and defamatory.” (Speech delivered during congressional debate, such as Gaetz’s, is protected from defamation claims.) The Times article was apparently deleted a few hours after Apelbaum’s post.

Rudy Giuliani also attempted to blame Antifa.

And Captain Emily Rainey, who resigned today as DOD investigates the PsyOp officer for her role in the insurgency, also blamed Antifa for the violence.

Her group — as well as most at Wednesday’s rally — were “peace-loving, law-abiding people who were doing nothing but demonstrating our First Amendment rights,” she said.

She even shared a video on Facebook insisting that the rioters were all Antifa, saying, “I don’t know any violent Patriots. I don’t know any Patriots who would smash the windows of a National jewel like the [Capitol].”

It is entirely predictable that Trump loyalists would blame Antifa for anything bad they do — Bill Barr did so as the formal policy of DOJ going back at least a year. But Trump seems to have prepared the ground for such predictable scapegoating by taking steps to declare Antifa a terrorist “organization” hours before a riot led by his supporters would storm the Capitol.

The White House makes DHS Secretary Chad Wolf’s appointment especially illegal

I’m most intrigued by a flip-flop that had the effect of making DHS Acting Secretary’s appointment even more illegal than it has already been at times in the last two years.

On January 3, the White House submitted Chad Wolf’s nomination, along with those of 29 other people, to be DHS Secretary. Then, on January 6, it withdrew the nomination.

Wolf himself was out of the country in Bahrain when the riot happened. But he did tweet out — before DOD mobilized the Guard — that DHS officials were supporting the counter-insurgency. And he issued both a tweet and then — the next day — a more formal statement condemning the violence.

It’s not entirely clear what happened between his renomination and the withdrawal, but Steve Vladeck (who tracks this stuff more closely than anyone), had a lot to say about the juggling, not least that the withdrawal of his resubmitted nomination made it very clear that Wolf is not now legally serving.

This could have had — and could have, going forward — a chilling effect on any orders Wolf issues to deploy law enforcement.

Thus far, we haven’t seen much about what DHS did and did not do in advance of the riot — though its maligned intelligence unit did not issue a bulletin warning of the danger.

The Federal Bureau of Investigation and an intelligence unit inside the Department of Homeland Security didn’t issue a threat assessment of the Jan. 6 pro-Trump protests that devolved into violence inside the Capitol, people briefed on the matter said.

In the weeks leading up to the protests, extremists posted about their plans to “storm” the Capitol on social media.

The joint department bulletin is a routine report before notable events that the agencies usually send to federal, state and local law-enforcement and homeland security advisers. The reports help plan for events that could pose significant risks.

At the DHS unit, called Intelligence and Analysis, management didn’t view the demonstrations as posing a significant threat, some of the people said.

Last year, Ken Cuccinelli forced whistleblower Brian Murphy to change language in a threat analysis to downplay white supremacist violence and instead blame Antifa and related groups.

In May 2020, Mr. Glawe retired, and Mr. Murphy assumed the role of Acting Under Secretary. In May 2020 and June 2020, Mr. Murphy had several meetings with Mr. Cuccinelli regarding the status of the HTA. Mr. Cuccinelli stated that Mr. Murphy needed to specifically modify the section on White Supremacy in a manner that made the threat appear less severe, as well as include information on the prominence of violent “left-wing” groups. Mr. Murphy declined to make the requested modifications, and informed Mr. Cuccinelli that it would constitute censorship of analysis and the improper administration of an intelligence program.

Wolf had been complicit in that past politicization. But something happened this week to lead the Trump White House to ensure that his orders can be legally challenged.

Update: Jake Gibson just reported that Wolf is stepping down.

These are just data points. We’ll learn far more about Trump’s involvement as the FBI obtains warrants for the communications who have ties to both groups like the Proud Boys and Trump associates like Roger Stone and Steve Bannon. But these are a few data points worth keeping an eye on.

The Unaddressed Counterintelligence Threat of Rudy Giuliani

January 10, 2021/73 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

The name “Giuliani” shows up, unredacted, just five times in the SSCI Russia Report:

A reference to a meeting that Rudy had with Paul Manafort and Trump at 5:30 PM on August 2, 2016, the last thing on Manafort’s calendar before he met with Konstantin Kilimnik to discuss how to win the Midwest, share campaign polling data, and carve up Ukraine.
A citation to a Rick Gates 302 that describes that Manafort was relying on Rudy, along with Jared Kushner, in his efforts to try to place people in the new Administration.
A footnote citing this story describing Rudy’s meetings with Andrii Telizhenko as part of his search for dirt in support of Trump’s 2020 re-election. The footnote is one of the few unredacted passages in an 8-page section that is part of a larger section describing Manafort’s follow-up on that August 2, 2016 meeting on Ukraine.
A footnote describing an email — involving Rudy, Hope Hicks, Dan Scavino, and Stephen Miller — used as an example of Trump’s team incorporating stolen information released by WikiLeaks into Trump’s tweets.
A footnote sourcing a rather incredible claim from Psy Group’s Joel Zamel that he first met Jared Kushner via an introduction, months after inauguration, from Rudy.

I raise this not because I think there’s any direct tie between Russia and the coup this week (though I find it interesting that of those scripting WikiLeaks information into Trump tweets, all but Hicks may be seeking a pardon). This coup was an all-American affair, with roots in racist extremism that goes back before the Civil War. Someday, six months from today, we can talk about how this attack was consistent with events started over four years ago, with all the same players in starring roles. But these are American fascists running the show, not Russians.

I raise it, instead, to point out that the single most sustained review of the danger that some of Trump’s closest advisors pose to his presidency almost entirely excluded one who played the key role in the post-election period, the purported lawyer who — at every step of the way — encouraged the President to take more and more extreme measures to hold on his power.

This coup attempt happened, in significant part, because Rudy had almost unfettered access to the President, Rudy was one of few people who never lost his trust, and Rudy always encouraged the worst decisions from Trump.