On Friday, DC Chief Judge James Boasberg released a redacted version of a March 29 opinion on another attempt by Xitter to refuse compliance with legal process based on a complaint about a gag order (formally, a non-disclosure order, referred to as an NDO below). Kyle Cheney, who first posted on it and who tends to have a good read on these things, noted that it seems important.
As you recall, Xitter successfully delayed Jack Smith’s access to Trump’s Xitter account for 23 days in January and February of last year (from when then-Chief Judge Beryl Howell approved the warrant on January 17 until when Xitter finally complied on February 9), then spent several more months arguing that it should be able to inform Trump they had provided the information and should not have to pay fines for being in contempt.
This time around, Xitter delayed DOJ’s access to the mere subscriber records — that is, records showing who owns the accounts in question — for two Xitter accounts for over two months (January 25 through March 29 of this year) based on a similar complaint: that before it complied, it should be able to tell the subjects of the criminal investigation about the request.
While (as Cheney noted) there’s no clear tie to Trump, this investigation is focused on public figures of some sort. We know that because Xitter argued that notifying the targets would not harm the investigation, and then claimed there was nothing publicly known about the targets to suggest informing them would lead to witness intimidation or any of the other bases DOJ provided for delaying notice for a year.
Judge Boasberg debunked Xitter’s claim. There was information in the affidavit, he said, even just “based on what is publicly known about the investigation’s targets,” to show that disclosure might result in witness intimidation. Xitter also complained that the government offered more information to justify its gag after Xitter challenged it, but Boasberg declined to “infer” from that the initial basis was lacking.
And while there’s no reason to believe that those public people have a tie to Trump, Boasberg cited last year’s legal dispute in three places to justify denying Xitter’s demand.
He invoked Yogi Berra (and the government’s filings) to explain why Xitter’s “imagined categorical prohibition on omnibus NDOs” was little different than the arguments it made last year.
On that question, much of X’s argumentation may be characterized by Yogi Berra’s immortal line, “It’s déjà vu all over again.” That is because the company mostly regurgitates the arguments that it made — which both this Court’s predecessor and the D.C. Circuit rejected — just last year in a case involving the same parties. See In re Sealed Case, 77 F. 4th 815, aff’g in the Matter of the Search; see also Redacted Gov’t Mot. at 13 (asserting that X “knows [its arguments] are losing arguments — having just had the D.C. Circuit reject them last year when it challenged a different NDO”); see also id., at 1, 7-8. The NDO at issue in In re Sealed Case accompanied a search warrant directing Twitter to produce information related to former President Trump’s account. See 77 F.4th at 821. Twitter challenged the NDO on much the same grounds as it does here, and the Circuit did not bite.
Boasberg likened Xitter’s glib offer to tell only the subjects of the investigation to Xitter’s similar offer last year to tell only Trump, which the DC Circuit rejected.
The company believes that “[a] less restrictive means of furthering the government’s interests . . . would be to permit X to disclose the Subpoena’s existence to the targeted users, while prohibiting disclosure . . . to anyone else.” Id. at 24. That is akin to asking for the donut minus the hole.
Indeed, the Circuit rejected an analogous alternative in In re Sealed Case. There, the company proposed notifying just Trump–the target of the warrant that the challenged NDO accompanied–of the warrant’s existence. Yet the Circuit considered that alternative a “nonstarter[]” because it “would not have maintained the confidentiality of the criminal investigation and therefore risked jeopardizing it.” In re Sealed Case. 77 F.4th at 831. Nor would it have safeguarded the security and integrity of the investigation, as the whole point of the nondisclosure was to avoid tipping off the former President about the warrant’s existence.” Id. at 832. X’s proposal here falls flat for precisely the same reason: permitting it to disclose the subpoena’s existence [redacted] would neither protect the investigation’s confidentiality nor safeguard its integrity. See Redacted Gov’t Mot. at 12 n.4.
[Paragraph redacted]
Notably, last year Xitter at least relied on a purported interest in preserving Executive Privilege. Here, there’s no such claim; just a specious argument that DOJ should have to get individualized NDOs for every subpoena it submits in this investigation, even if all of them ask for no more than basic social media account information. So this is not some protected class, like a member of Congress or staffer.
Perhaps Boasberg’s most interesting invocation of Xitter’s earlier attempt to tamper in the Trump investigation is where, in almost entirely redacted language, he compares the urgency of this investigation with that of Jack Smith’s investigation into, “activity intended to alter the outcome of a valid national election for the leadership of the Executive Branch of the federal government.”
He spends three (redacted) paragraphs describing the import of the investigation.
To be sure, the Government’s interest in In re Sealed Case “was particularly strong” because of the goal of the investigation at issue: “[T]o ferret out activity intended to alter the outcome of a valid national election for the leadership of the Executive Branch of the federal government . . . and to assess whether that activity crossed lines into criminal culpability.” In re Sealed Case. 77 F4th at 830. The United States does not purport to target election interference in this case. But it submits that its interest are nevertheless heightened here for another reason: [1.5 lines redacted] The Court wholly agrees based on the evidence outlined in the Government’s ex parte briefing. [3 paragraphs redacted]
Whether or not this has a direct tie to Trump, it’s worth noting that Musk met with Trump (on March 2) during the pendency of this fight; last year, Musk met with Jim Jordan twice during Xitter’s challenge to the Trump warrant.
Whatever that three paragraph description was, Boasberg described the type of investigation using a short word — four or maybe five characters. This could be a FARA investigation or a leak investigation, for example, or perhaps he cited code to describe it.
Update: I guess I should explain why I used Musk’s Council of Nicea tweets as my featured image? In this post (linked above), I noted that on the day Xitter started complying with the Trump warrant, Musk posted this tweet:
So I went to Musk’s tweets from the day after Boasberg’s order and noted that he tweeted obliquely about “trac[ing] to source documents.”
If this is a leak investigation, it could be a reference to an attempt to source a leak.
Timeline
December 11, 2023: Application for omnibus NDO
January 5, 2024: DOJ serves Xitter with subpoena for subscriber information
January 24: Xitter moves to vacate the NDO, review the affidavit, and stay compliance
https://www.emptywheel.net/wp-content/uploads/2023/08/Screenshot-2024-04-17-at-12.20.51.png6321180emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-04-17 07:27:152024-04-17 08:01:02Elon Musk’s Xitter Stalls a Criminal Investigation, Again
In his sentencing memo for Charles McGonigal’s DC case, former Bill Barr flunky Seth DuCharme twice misstated the nature of the false statement for which Kevin Clinesmith was sentenced.
In a passage comparing other government officials who had omitted information from government filings, as McGonigal pled he had, DuCharme asserted that Clinesmith was prosecuted for making “false statements,” plural, “in application for” FISA warrant.
United States v. Clinesmith, No. 1:20-cr-165 (D.D.C. 2020) (imposing probation against FBI attorney for false statements in application for a Foreign Intelligence Surveillance Act (“FISA”) warrant); [my emphasis]
Even before that, in arguing that Judge Colleen Kollar-Kotelly should not apply a sentencing enhancement, he turned to Clinesmith. This time, he accused Clinesmith of causing false information to be submitted to FISC.
Mr. McGonigal disagrees with the application of the cross reference in Section 2B1.1(c)(3), which would increase his base offense level to 14, as inconsistent with case precedent. In United States v. Clinesmith, No. 1:20-cr-165 (D.D.C. 2020), the government did not seek and the sentencing court did not independently apply the cross reference to the obstruction Guideline at the sentencing of an FBI attorney who caused false information to be submitted to the U.S. Foreign Intelligence Surveillance Court (“FISC”) in an application for a Foreign Intelligence Surveillance Act (“FISA”) warrant sought in connection with an active FBI investigation. The government’s position that false statements to the FISC during an active investigation does not warrant application of the cross reference while Mr. McGonigal’s conduct does is perplexing. While Mr. McGonigal concedes that this Court in United States v. Hawkins, 185 F. Supp. 3d 114 (D.D.C. 2016) held that it may consider conduct in the statement of the offense, and the court in United States v. Saffarinia, 424 F. Supp. 3d 46 (D.D.C. 2020) held that at the motion to dismiss phase Section 1519 is broad enough to cover false statements on OGE-278 forms, it is difficult to reconcile these cases with the Clinesmith court’s more recent analysis. In Clinesmith, the District Court declined to apply the obstruction cross reference in determining the applicable Guidelines range, and we respectfully request that this Court similarly decline to apply the cross reference to the facts at issue here. [my emphasis]
Kevin Clinesmith altered an email and with it, misled a colleague, thereby preventing the FBI from fully informing the FISA Court on something material to the application. In that, he “caused” information not to be shared with the FISC. He did not make false statements in the application (and in any case, the original decision not to notify the court that Page had years earlier shared information with the CIA about Russian spies, which Clinesmith had no part of, had in significant part to do the the fact that Page had not been an approved contact of the CIA for several years before 2016, when he went out of his way to contact the Russians about his role in a counterintelligence investigation). Nor did Clinesmith cause affirmative false statements to be made.
His was a crime of omission, not commission, as DuCharme claimed. I emailed DuCharme about the basis for these claims but got no response.
More importantly, whether you agree with him or not, Judge James Boasberg explained why he sentenced Clinesmith to probation: because he didn’t think Clinesmith believed he was lying and the former FBI lawyer got no benefit from his false claim.
First, he obtained no real personal benefit from his actions and he had no active intent to harm.
Although the government has contested this, my view of the evidence is that Mr. Clinesmith likely believed that what he said about Dr. Page was true, namely that he was a subsource but not a source of the Other Government Agency. By altering the e-mail, he was saving himself some work and taking an inappropriate shortcut. But I do not believe that he was attempting to achieve an end he knew was wrong.
I’m on the record saying Clinesmith should have gotten some jail time, even in spite of the wildly unsubstantiated claims Durham’s team made about politicization. I think DuCharme is totally right to compare how lenient courts have been with government officials who fail to disclose things, including by invoking the Clinesmith sentence. That’s all sound lawyering.
But his sloppy treatment of Clinesmith — the appointment of John Durham to prosecute for which DuCharme played a central role — comes off as petulant and partisan. Indeed, Barr’s office took personal interest in this prosecution all the way through the time DuCharme swapped back to EDNY, as revealed by a text exchange Barr had with his Chief of Staff, probably complaining that Boasberg remained on this case, after the plea deal.
There are few factual similarities to the two cases, and by focusing so much on him, DuCharme seems to be saying, “if Kevin Clinesmith didn’t have to go to jail based on our conspiracy theories about him, my guy shouldn’t have to either.”
All the more so given another enhancement argument DuCharme made. He argues that a 3-level enhancement should not be applied because McGonigal trumped up a FARA investigation into the rival of the Albanian paying him to travel around Europe, the thing he failed to disclose.
Mr. McGonigal further disagrees with the application of Section 2J1.2(b)(2) resulting in a three-level enhancement for “substantial interference” with the administration of justice. According to the PSR, the enhancement is applied to Mr. McGonigal because he admitted to “speaking with a foreign official about a matter in which Person A had a financial interest, and opening a criminal investigation based on information provided to him by Person A.” PSR ¶ 57. While the enhancement is appropriately applied to the “premature or improper termination of a felony investigation,” we are aware of no authority supporting its application to the opening of a felony investigation, as is the case here. 7 As Special Agent in Charge (“SAC”) of Counterintelligence for the New York Field Office, it was Mr. McGonigal’s job to pass along information he received that could be indicative of criminal activity. Had Mr. McGonigal taken the alternative route and concealed or withheld the information he received from Person A concerning potential criminal activity in the United States, that would be troubling. Instead, he passed the tip and lead to the FBI, to be appropriately vetted by the Bureau and the U.S. Attorney’s Office. Accordingly, the application of Section 2J1.2(b)(2) is unwarranted.
7 U.S.S.G. § 2J1.2 (“Substantial interference with the administration of justice” means “a premature or improper termination of a felony investigation; an indictment, verdict, or any judicial determination based upon perjury, false testimony, or other false evidence; or the unnecessary expenditure of substantial governmental or court resources.”); see e.g., United States v. Baker, 82 F.3d 273 (8th Cir 1996) (applying enhancement to police officer who improperly terminated a felony investigation). [my bold, italics original]
The technical issue — whether this enhancement can be used because someone initiated an improper investigation rather than improperly ending one — will make an interesting appeal if Kollar-Kotelly applies the enhancement and and sentences McGonigal to serve his sentence concurrent to the 50-month sentence Judge Jennifer Rearden gave McGonigal for trying to trump up sanctions against an Oleg Deripaska rival in SDNY, something DOJ is not requesting. But it’s likely that would be unsuccessful: As the government notes in its sentencing memo and even the footnote here makes clear, after the termination language DuCharme focuses on, the guideline continues, “or the unnecessary expenditure of substantial governmental or court resources.” And McGonigal’s opening an investigation against his business partner’s rival used counterintelligence resources that should have been spent on more serious threats.
FBI officials even questioned the propriety of opening up the criminal investigation at the time it was initiated, but cited the defendant’s directive. See Ex. 1 at 1.
[snip]
Here, initiating the investigation based on Person A’s information was particularly egregious given its lack of substantiation, which is why it was promptly closed following the defendant’s retirement.
DOJ provided records showing that one of McGonigal’s colleagues was genuinely troubled about the propriety of opening a FARA case against someone who had already registered under FARA regarding a country, Albania, that isn’t among the countries of priority for such things. By opening an investigation into a lobbyist for an Albanian political party (reportedly former Ted Cruz Chief of Staff Nicholas Muzin), McGonigal was drawing resources away from more pressing threats.
So my question is with all the talk of shortage of resources and most field offices having difficulty covering Band 3 and 4 threats, and FARA cases from banded threat countries rarely prosecuted by DOJ, why is NY requesting a SIM FAR investigation be opened on Albania for an improper FARA registration as a threat to national security?
I of course will fully support anything NY wants to do in their AOR, but once the paperwork to restrict the case gets reported up my chain of command, I would like to be able to explain to them why we are working an Albanian SIM/FARA case when every day I am in there fighting for resources on some national security matters pertaining to banded countries such as [redacted]. I am assuming since this directive is coming from SAC McGonigal there is more to this story?
Per those records, McGonigal appears to have caused a politically connected Republican to have nine of his bank accounts scrutinized before the investigation got closed. The Albanian section of Oversight Democrats’ report on Trump’s acceptance of emoluments provides more background on the political wranglings involved; Albanian Prime Minister Edi Rama and two aides spent almost $3,500 at Trump’s hotel on a trip when they met with McGonigal.
Notably, the investigation against this lobbyist, like Crossfire Hurricane, was opened as a Full investigation from the start.
And after the FBI discovered that McGonigal had opened up an investigation to help his business partner, the FBI has had to review all the other cases he was working on to make sure he hadn’t similarly used criminal investigations for self-interested purposes.
Moreover, given the defendant’s senior and sensitive role in the organization, the FBI has been forced to undertake substantial reviews of numerous other investigations to insure that none were compromised during the defendant’s tenure as an FBI special agent and supervisory special agent. The defendant worked on some of the most sensitive and significant matters handled by the FBI. PSR ¶¶ 98-101. His lack of credibility, as revealed by his conduct underlying his offense of conviction, could jeopardize them all. The resulting internal review has been a large undertaking, requiring an unnecessary expenditure of substantial governmental resources.
The misrepresentation of the Clinesmith plea might be reasonable coming from someone else. Like all criminal defendants, McGonigal deserves zealous advocacy.
But this argument came from Seth DuCharme.
It came from someone who opened a four year follow-on investigation in which the only crime ever identified was that Clinesmith alteration — and that crime was discovered by someone else, and could easily have been, and should have been, prosecuted by the very same prosecutors who did prosecute it, only instead reporting to the Trump appointed US Attorney in DC rather than Durham. And among the prosecutions pursued as part of that four year investigation that Seth DuCharme opened was a false statements case against Michael Sussmann based off logic directly contrary to what DuCharme argues here, that McGonigal would have failed to do his duty if he hadn’t opened the investigation into his business partner’s rival. That logic, applied to the Durham investigation, says it would have been remiss not to investigate the Alfa Bank allegations that Sussmann shared with Jim Baker — which is exactly what Sussmann said from the start.
Worse still, that argument DuCharme makes, that, “it was Mr. McGonigal’s job to pass along information he received that could be indicative of criminal activity,” is precisely the argument that Bill Barr made to explain a similar laundering of self-interested information that Seth DuCharme effected: the channeling of information from Rudy Giuliani to the Hunter Biden investigation.
The DOJ has the obligation to have an open door to anybody who wishes to provide us information that they think is relevant.
That is, the dishonest argument that Seth DuCharme is making, trying to dismiss the seriousness of Charles McGonigal’s use of FBI resources to conduct an investigation in which he had an undisclosed personal interest? It’s an argument that might also exonerate his own twin efforts to launch massive investigations into Donald Trump’s political rivals.
In fact, in McGonigal’s Deripaska-related sentencing hearing, DuCharme said something shocking. In that case, he said that McGonigal’s enthusiasm for working with someone whom the former FBI agent himself had identified as a Russian spy was only a problem because he was no longer covered by public authority defense. “[O]ne of the critical mistakes he makes in embracing this is that he no longer has the public authority that he had as an FBI agent.” That is, Seth DuCharme, who did set up a way to use dirt from a known Russian spy for a politicized investigation, argued that’s all cool if you’ve got the legal cover of official employ.
By all means, lawyers for Charles McGonigal should point out that DC judges rarely punish government officials who lie by omission that harshly. But in attempting to do that, Seth DuCharme said as much about his own ethics and actions than he did about his client’s crimes.
https://www.emptywheel.net/wp-content/uploads/2024/01/Screenshot-2024-01-12-at-13.30.31.png7001162emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-01-12 08:55:072024-01-12 09:05:37The Seth DuCharme Confession in the Charles McGonigal Sentencing Memo
By my rough count, Judge Tanya Chutkan has presided over the cases of more than 25 January 6 defendants, in addition to Donald Trump. Nevertheless, Trump keeps trying to lecture Chutkan about what happened, often by pointing to reports from journalists who have not otherwise covered the investigation closely.
Contrary to their false claims about how much video she has seen, Judge Chutkan knows these details far better than Trump’s attorneys.
For example, Trump keeps pointing to a December 2021 piece from Will Arkin to argue, using very dated numbers regarding the investigation, just one percent of his mobsters qualify as insurrectionists.
The Secret Service and the FBI estimated that at least 120,000 Americans gathered on the Mall for President Trump’s speech. 6 Government agencies estimated that about 1,200 people—at most 1% of the size of the crowd gathered to listen to President Trump—entered the Capitol, and a smaller percentage than that committed violent acts. 7 Thus, we can easily conclude that well over 99% of the attendees at President Trump’s speech did not engage in the events at the Capitol. Moreover, as the Indictment recognizes, a crowd had gathered at the Capitol before President Trump finished speaking, further proving he had nothing to do with those events.
6 William M. Arkin, Exclusive: Classified Documents Reveal the Number of January 6 Protestors, NEWSWEEK (Dec. 23, 2021), at https://www.newsweek.com/exclusive-classified-documentsreveal-number-january-6-protestors-1661296. The January 6 Committee estimated the crowd on the Mall at 53,000, while President Trump estimated it at 250,000. Compare Final Report, SELECT COMMITTEE TO INVESTIGATE THE JANUARY 6TH ATTACK ON THE UNITED STATES CAPITOL (Dec. 22, 2022), 585, at https://www.govinfo.gov/content/pkg/GPO-J6-REPORT/pdf/GPO-J6-REPORT.pdf with Read Trump’s Jan. 6 Speech, A Key Part of Impeachment Trial, NPR (Feb. 10, 2021), at https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-ofimpeachment-trial (emphasis added).
7 Id. (“[T]he facts seem to indicate that as few as one percent of the people who were there fit the label of insurrectionist.”).
There are a slew of problematic assumptions in Arkin’s piece (as well as the follow-up piece that appears to be the actual source cited in footnote 7): about the relationship between militias and others, about the role of non-militia organized groups like QAnon or anti-vaxxers, about the role and increasing percentage of military participants.
The most important misconception is that only people who entered the building, as distinct from the often more violent crowds outside it or Proud Boy seditionists orchestrating things from afar, could be an insurrectionist.
Plus, Arkin’s 2021 numbers were outdated at the time — most outlets put the number of insiders at 2,000 to 2,500 at the one year anniversary and the Sedition Hunters have identified 3,200 specific people who went inside the Capitol (though this includes people, including at least one WaPo journalist, who weren’t rioters).
Given Trump’s reliance on such outdated numbers, however, I wanted to look at a filing in the latest challenge to one of the geofence warrants used in the investigation, this time from Isreal Easterday, a Confederate-flag toting rioter who sprayed two cops before entering the Capitol through the east door.
There have already been two failed challenges to geofence warrants used in the investigation. In August 2022, then-Chief Judge Beryl Howell rejected Matthew Bledsoe’s challenge to a geofence of those who live streamed to Facebook during the riot; he is appealing his conviction, but not that ruling. In January, then-presiding FISA Judge Rudolph Contreras rejected David Rhine’s challenge to the Google geofence tied to voluntary use of Google’s Location History service (there’s no FISA component to this, but FISA judges see more novel Fourth Amendment issues). Rhine does appear to be including that ruling in his appeal, in which his initial brief is due in February.
Like Rhine, Easterday is challenging the Google geofence, but from a Fourth Amendment standpoint, he is different than Rhine in two key ways. First, the investigation into Rhine started from some tips called in as early as January 10, 2021; the FBI didn’t need the Google geofence to find him, though it made it easier to pinpoint video of his path through the Capitol.
With Easterday (probably because two distinctive aspects of his appearance changed that day — he dropped his flag and took off his hat — making it harder to track him), the first really good lead on his identity was the geofence.
The second difference between Rhine and Easterday arises from the technicalities of how the FBI did the geofence.
The FBI did three rounds of geofence with Google. In the first, starting with a January 13, 2021 warrant to Google, they:
Obtained the identifiers for all the phones that hit the geofence during the riot
Took out the identifiers that were present in the building in the 15 minutes before and after the riot (assuming those were people who were lawfully present in the Capitol)
Sorted out hits that were in places (for example, areas where surveillance footage showed no rioters to be present) inconsistent with unlawful activity
Eliminated identifiers without at least one hit entirely within the Capitol factoring in margin-of-error radius
Added back in identifiers with lower confidence radius that deleted Location History with the week after the attack
Asked Google to deanonymize that data
For the second round, they submitted a second request for deanonymization on April 14, based on the logic that those for whom there were only low confidence hits within the Capitol would be high confidence hits for the larger restricted area.
Based on the same logic, on May 21, 2021, the FBI obtained a second geofence warrant to include (per Easterday’s filings) the entire restricted area on January 6.
This time, to cull the data, they:
Obtained the identifier for all the phones that hit the geofence during the riot
Removed identifiers previously deanonymized
Took out the lawfully present identifiers either voluntarily identified by Congressional offices or obtained by law enforcement
Removed identifiers present in the 15 minutes before or after the riot
Eliminated identifiers without at least one hit entirely within the restricted grounds
Asked Google to deanonymize that data
Rhine’s phone identifier was included in the first batch of identifiers the FBI asked to be deanonymized, a group of about 1,500 identifiers; Easterday’s was not. His phone was included in the second batch deanonymized, an additional 2,200 identifiers obtained in the first warrant. His phone was also IDed in the second warrant, but by that point had already been deanonymized.
The details of how the Google geofence worked were described in filings in the Rhine case (see this post and this post), but because Easterday was not identified until the second batch, the second cull gets more attention in Easterday’s filings.
Easterday did enter the Capitol. There are pictures of him wandering hallways and stairs. On October 26, a jury convicted him of trespassing inside the Capitol, 40 USC 5104, along with the more serious assault and riot felonies he committed outside the building.
Easterday was only inside the Capitol itself for 12 minutes — he entered at 2:39 and exited at 2:51; Easterday entered three minutes before Rhine but left 13 minutes before Rhine. But he would have been at the east door — not inside the Capitol, but helping to violently break into it — for at least 22 minutes; the assault on one of the cops was captured in video that starts at 2:17.
There are a number of possible explanations for why Easterday phone would not have had a high confidence hit inside the Capitol geofence but did trigger the broadened geofence. For example, the original hit or hits on Easterday’s phone may have been in a location (such as the east door) where the confidence radius of the location was partially outside the Capitol itself. Some of the relevant hits were surely entirely within that area outside the Capitol but inside the restricted area that day. As the government noted in their response to this challenge, being in that area was also a trespassing crime, 18 USC 1752, even if DOJ charged fewer of the people who were in that area. The jury convicted Easterday of that crime, too.
The government provided a supplement answering specific questions Chief Judge James Boasberg posed after the guilty verdict that provides more possible explanations why Easterday did not trigger the geofence within the building at high confidence. For example, it describes that iPhones capture a lot less activity in Location History than Androids do.
[Location History] is sometimes collected automatically, but is primarily and most frequently collected when a user is doing something with his or her device that specifically involves location information (such as following Google Maps directions or taking photographs or videos that record location as part of their metadata).
Moreover, in the government’s experience examining Google LH returns, the range of activities that generate a LH point is narrower on Apple’s iPhones than Android phones. Apple iPhones apparently collect LH data primarily when the user is specifically using Google Maps.
[snip]
In contrast, Android phones can collect LH data when the user uses a wider array of Google-based applications, or even when the device is not in use at all, such as when it is sitting on a user’s bedside table overnight. Additionally, if an Android phone detects that a user is moving, the Android phone specifically and automatically requests location data from the server about every two minutes, leading to a LH data point being collected by Google. However, if the phone determines that the user is standing relatively still, or remaining within the same Wi-Fi network’s range, Android phones will request location data much less frequently, as the phone is effectively not moving. Similarly, devices will not automatically request location data from the server—or will do so less frequently—when they are low on battery.
Easterday appears to have made a call while inside the building (which would trigger a different kind of location data, but data that DOJ only obtained with individualized warrants), but that’s less likely to be captured in Location History than taking a picture would.
Judge Boasberg’s request for more information — an order he made after the guilty verdict — appears to stem, in significant part, from the fact that FBI’s initial exclusion set of 215 people is obviously a mere fraction of the people who were lawfully in the Capitol that day.
(2) how could the Control List searches for the Initial Google Geofence Warrant have generated hits for only 215 unique devices/accounts when Google applications are so ubiquitous and presumably between 1,500-2,000 people were lawfully present in the Capitol building in the time periods before and after the riot?
It its earlier filings, DOJ used a dated stat that only 30% of Google users actually use the Location History service, a service that takes several steps to turn on. In this filing, DOJ argues that as the proportion of iPhone users increase, the number of people who trigger Location History will be smaller still, unless they’re using Google maps.
Boasberg is suggesting (and DOJ is not contesting) that their initial exclusion effort may only have included about 15% of those lawfully in the Capitol. While there would be some subset of people lawfully present who weren’t excluded in the first batch (people who were not moving in the 15 minutes before and after but who fled or took pictures during the riot, for example), this filing suggests all these numbers are low — very low.
If just one third of the people who entered the building could be expected to trigger the Google geofence, then the number who entered may be well over 4,000 (a reasonable number given the number Sedition Hunters have IDed).
If just a third of the people who were at the Capitol but not necessarily taking pictures inside it triggered the Google geofence, that number might be closer to 7,000 additional bodies, including those assaulting cops. And there could be another 23,000 people outside the Capitol — some no more than MAGA tourists, but others among the most violent people that day.
Using the Arkin numbers that were outdated when he published them in December 2021, Trump claims that, “we can easily conclude that well over 99% of the attendees at President Trump’s speech did not engage in the events at the Capitol.”
That’s not what the geofence shows. Using the same 120,000 number he uses for his own calculations, about one in ten were right at the building and a quarter may have made it to restricted ground, and the numbers could be double that.
One thing is clear though: the violent mobsters literally carrying the banner of insurrection as they attack cops may not be the ones you’ll find taking pictures inside the Capitol. And once you figure that out, the numbers of potential Trump insurrectionists starts to grow.
And Judge Chutkan knows that.
Take, Robert Palmer, whom Trump raised to complain that Chutkan had presided over the prosecution of someone who said he went to the Capitol at Trump’s behest, where he serially assaulted cops because he believed he needed to stop the voter certification. Robert Palmer never entered the Capitol. But it’s quite clear he believes Trump sent him.
Update: Distinguished between the two trespassing crimes to show one can be applied to both locations.
https://www.emptywheel.net/wp-content/uploads/2023/11/Screenshot-2023-11-25-at-16.46.31.png484640emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-11-25 18:14:302023-12-15 04:46:00The MAGA Tourist Geofence and the Violent Confederate Flag-Toting Geofence
There’s a passage in Stan Woodward’s surreply to DOJ’s motion for a conflicts hearing in the stolen documents case that goes to the core of Woodward’s conduct in his representation of multiple witnesses in Trump investigations.
Woodward claims that because Yuscil Taveras testified in a July 20 grand jury appearance that he had not been coached (by Woodward, presumably) to lie about whether he had any conversation with Carlos De Oliveira, it’s proof that Taveras’ original grand jury testimony that he did not was not perjurious.
[T]he foregoing Surreply is necessary to correct the record with respect to the Special Counsel’s Office’s conduct in this matter. Specifically, defense counsel played no role in Trump Employee 4’s voluntary testimony before the grand jury resulting in the Superseding Indictment in this action.5 Superseding Indictment (July 27, 2023) (ECF No. 85). Moreover, when Trump Employee 4 testified, for the first time, before a Grand Jury in this District, Trump Employee 4 was unequivocal that, with respect to his prior testimony, he, “wasn’t coached,” and that nobody, “suggest[ed] to [him], influence[d] [him to say that th[e] conversation with Carlos De Oliveira didn’t happen.” G.J. Tr. at 50 (July 20, 2023). To that end, Trump Employee 4 did not retract false testimony and provide information that implicated Mr. Nauta, “[i]mmediately after receiving new counsel.” Reply at 4 (Aug. 22, 2023) (ECF No. 129) (emphasis added). Rather, after the Special Counsel’s Office issued a target letter on June 20, 2023, threatening Trump Employee 4 with prosecution, see Reply at 3 (Aug. 22, 2023) (ECF No. 129) (“[O]n June 20, 2023, . . . [a] target letter . . . identified . . . criminal exposure . . . entirely due to [Trump Employee 4’s allegedly] false sworn denial before the grand jury in the District of Columbia that he had information about obstructive acts that would implicate Nauta (and others).” [my emphasis]
Woodward provided no evidence — not one shred — to support his claim that Taveras didn’t change testimony. All he provided was inconclusive evidence that Taveras did not blame Woodward for his original, allegedly false, testimony.
And based off that unsupported claim, Woodward suggested that dealing with alleged perjury delivered in a DC grand jury in DC to support additional charges amounted to abuse of grand jury rules.
The argument of the Special Counsel’s Office, that it did not use the D.C. grand jury for the purpose of adding to the store of witnesses in the instant case, is unpersuasive.10 The theory the Special Counsel’s Office offers, that having called a witness before a distant grand jury to answer questions about events in this District and having nominally created an additional venue in which to claim that the witness was untruthful, should not be condoned. The approach taken by the Special Counsel’s Office – which unquestionably affected the presentation of evidence in the existing Southern District of Florida case – is a tactic inconsistent with precedent barring the use of a grand jury for trial purposes.
All of this is transparent garbage.
But he’s writing for Aileen Cannon, and so his unsubstantiated claim, on which he builds his renewed demand that Cannon exclude Taveras’ testimony altogether, might well work!
Woodward also plays temporal games by using comments Michelle Peterson and James Boasberg made on June 30, in the first conflict hearing, to claim he did nothing wrong.
5 As both the Chief Judge of the United States District Court for the District of Columbia and the First Assistant Federal Public Defender acknowledged:
[First Assistant Federal Public Defender]: Your Honor, one other thing. I did want to say for the record, I should have started with this, have seen no reason to believe that either Mr. Woodward or Mr. Brand or anyone else associated with this has done anything improper. This just came up at this point in time, and based on the status of the record, I’ve given [Trump Employee 4] my best counsel, and he will be making a decision based on everything he knows now.
THE COURT: Right. And thank you. And certainly my reading of the government’s motion for his hearing did not suggest that Mr. Woodward or Mr. Brand had done anything improper either. The government’s was a prophylactic measure to comply with the law as it exists regarding conflicts and to make sure that [Trump Employee 4] is aware of his rights. Hr’g T. at 6 (June 30, 2023) (Attached hereto as Exhibit C).
Those comments were made after just an hour of consultation between Peterson and Taveras. It’s not a comment Peterson made at the second conflicts hearing, on July 5, where Taveras said he wished to have Peterson represent him, much less after Taveras changed his testimony.
And while the exhibits Woodward included purport to support his false claims, they also reveal that the approach to the conflict hearing before Cannon is similar to what he tried — unsuccessfully — to pull before Judge Boasberg.
In an email to Boasberg’s chamber on June 28, Woodward accused the government — which filed this conflict motion with no advance notice to Woodward — of stalling on a conflicts hearing when Taveras testified in March and then played for more time and briefing.
[I]nsisting on a hearing on such short notice prejudices [Taveras] and any appointed conflicts counsel. Although the government alludes to an ex parte submission, neither the Court nor any potential conflics counsel has had the benefit of any submission on behalf of [Taveras]. Effectively, the government would have Mr. [Taveras] through counsel, present his defense to the government’s puported allegation of perjury in just a few days. Of note, the government filed its motion after meeting with us earlier today — a meeting at which we challenged the government’s evidence contesting the veractiy of [Taveras’] testimony. Among other things, government counsel conceded that the government did not believe [Taveras] engaged in obstructive conduct; and, in the heated colloquy that followed, government counsel blurted out that they believed Mr. Nauta had been untruthful to his colleagues concerning certain events related to [Taveras’] testimony, a fact wholly irrelevant to whether [Taveras] had committed perjury and evidencing the government’s clear motive in filing this motion.
Third, although we do not, as a general matter, oppose the appointment of conflicts counsel to consult with and advise [Taveras,] given the serious nature of the matters under investigation by the government, we also believe he deserves — is entitled to the benefit of — a brief responding to the government’s filing in which dozens, perhaps more than a hundred, cases are cited for the Court. Again, more than three months have passed since [Taveras’] testimony with just days’ notice on the Friday before a holiday weekend when travel to and from South Florida is has already proved problematic this week is not just unnecessary, it is unfair.
Again, none of that makes sense — we know DOJ was still obtaining new evidence, including of Nauta’s phone — that would have led to increased certainty that Taveras’ initial testimony conflicted with known evidence.
In June, Woodward tried to buy time and make his own case (and claimed it benefitted Taveras to make that case).
In August, Woodward bought an entire month. In his first response, he equivocally embraced a conflict review three pages in.
Nevertheless, defense counsel does not now – and would not ever – oppose an inquiry of Mr. Nauta by the Court to assure the Court that Mr. Nauta has been advised of all his rights, including the right to conflict-free counsel, so long as such inquiry is conducted ex parte and under seal.
This time around, having spent another month consulting with Nauta, Woodward led with support for a hearing at which Nauta would be asked if he had been advised of his right to conflict-free counsel.
This Court should hold a hearing pursuant to United States v. Garcia, 517 F.2d 272 (5th Cir. 1975), to conduct an ex parte inquiry1 of Defendant Waltine Nauta as to whether he has been apprised of his rights, including the right to conflict-free counsel.
And in spite of the fact that Woodward bought this delay, in part, by claiming that DOJ had raised new information — they hadn’t; It was in a sealed filing — Woodward didn’t address one of the newly public details in DOJ’s filing: that they had raised his payment by Trump’s PAC in the conflict motion.
That said, this whole process likely isn’t for Woodward’s benefit, or Nauta’s. It is for Judge Cannon.
Among the things Woodward’s exhibits revealed is that DOJ had already alerted Judge Cannon to the conflicts twice before they filed their motion for a Garcia hearing.
We would also note that the court is already aware of the conflicts issue given that the government previously called this to the court’s attention – twice.
Cannon was already aware of these potential conflicfts.
And she did nothing.
Update: DOJ filed a reply in the parallel motion with Carlos De Oliveira, insisting on a hearing even if John Irving has gotten the other witnesses new lawyers.
https://www.emptywheel.net/wp-content/uploads/2022/09/Cannon.webp509916emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-09-06 16:28:242023-09-07 04:24:09Stan Woodward Thinks Aileen Cannon Is an Easy Mark
In this post, I noted all the things in DOJ’s reply on their motion for a Garcia hearing that had to have come from the grand jury, and assumed that DC Chief Judge James Boasberg must have permitted DOJ to share it.
As described here, yesterday’s reply on the motion for a Garcia hearing in the stolen documents case revealed a good deal of grand jury information about Yuscil Taveras’ testimony.
It revealed:
Trump’s IT worker, Taveras, testified (falsely, the government claims) in March
DOJ obtained two more subpoenas for surveillance footage, on June 29 and July 11, 2023 (the existence of those subpoenas, but not the date, had already been disclosed in a discovery memo)
It included the docket number associated with the conflict review — 23-GJ-46 — and cited Woodward’s response to the proceedings
James Boasberg provided Taveras with conflict counsel
Taveras changed his testimony after consulting with an independent counsel
Under grand jury secrecy rules, DC Chief Judge Boasberg would have had to approve sharing that information, but the docket itself remains sealed and Boasberg has not unsealed any of the proceedings.
A filing submitted from DOJ shows that I was right.
It also shows that Judge Aileen Cannon and Walt Nauta attorney Stan Woodward are engaged in a game that is doing nothing to ensure that Nauta’s getting unconflicted legal representation, but it is protecting Trump’s protection racket.
Let’s review the timeline.
On August 2, DOJ filed their original motion for a Garcia hearing, describing, generally, that Yuscil Taveras had testified against Nauta, which presented a conflict for Woodward, even before you consider the three other possible trial witnesses — of seven remaining witnesses — he also represents. DOJ submitted a sealed supplement with information on those three as well as other information, “to facilitate the Court’s inquiry.” Five days later, Cannon ordered that filing stricken, stating that, the government had, “fail[ed] to satisfy the burden of establishing a sufficient legal or factual basis to warrant sealing the motion and supplement.” In her drawn out briefing schedule on the question, she instructed Stan Woodward to address, “the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertinent to the instant indicted matter in this district.”
On August 17, Woodward responded. He contended that Garcia hearings only covered when an attorney represented two defendants, but ultimately argued that, rather than adopt a more traditional method of resolving such a conflict (such as replacing Woodward), Judge Cannon should exclude Taveras’ testimony.
The government’s reply — filed on August 22 — is the one that made public more, damning, information on what went down in June and July.
Three more days passed before Woodward submitted a furious motion requesting opportunity to file a sur-reply. In it, filed 23 days after DOJ’s original submission and sealed filing, he accused DOJ of contravening, “a sealing order issued by the United States District Court for the District of Columbia,1” though in a rambling footnote, he admitted maybe DOJ had requested to unseal this ex parte.
1. Defense counsel is not currently aware of any application by the government to unseal defense counsel’s submission. To have done so ex parte is arguably less professional than deliberately violating the Court’s sealing order. The government did not solicit defense counsel’s position on the unsealing of defense counsel’s own submission, but appears to have deliberately misled both the District Court for the District of Columbia and this Court. Of course, if they did seek such an application ex parte, this would be the second time in as many weeks that the government has done so – a particularly ironic approach given the Special Counsel’s objection to the Court conducting any ex parte inquiry of Mr. Nauta.
In a fit of Trumpist projection, Woodward also complained that DOJ was doing things that might lead to tampering with witnesses.
2 In the time since the government’s submission, defense counsel has received several threatening and/or disparaging emails and phone calls. This is the result of the Special Counsel’s callous disregard for how their unnecessary actions affect and influence the public and the lives of the individuals involved in this matter. It defies credulity to suggest that it is coincidental that mere minutes after the government’s submission, at least one media outlet was reporting previously undisclosed details that were disclosed needlessly by the government.
Projection, projection, projection.
Well, it worked. Judge Cannon granted Woodward’s motion, even giving him one more day than he asked, until August 31 instead of August 30 (remember that she scheduled a sealed hearing sometime in this timeframe). Which will mean that because of actions taken and inaction by Aileen Cannon, Walt Nauta will go the entire month of August without getting a conflict review.
Meanwhile, on August 16, DOJ filed a motion for a Garcia hearing to discuss the three witnesses represented by Carlos De Oliveira’s attorney who may testify against him. Best as I can tell, Cannon is simply ignoring that one. Fuck De Oliveira, I guess.
After Cannon assented to yet more delay before she addressed the potentially conflicted representation of two of three defendants before her (someday, Cannon may even have to deal with conflicts Todd Blanche has, since he also represents Boris Epshteyn), DOJ submitted notice sharing a filing they submitted before the DC grand jury, assenting to Woodward’s request, filed just yesterday morning (that is, three days after their reply), asking to unseal stuff that was already unsealed.
It includes the Woodward filing, from which DOJ’s reply quoted, that Woodward claims DOJ cited out of context.
The full filing doesn’t help Woodward.
Indeed, Woodward’s own filing suggests that if Taveras wanted to cooperate with the government, that would entail seeking a new attorney.
Ultimately, this is little more than a last-ditch effort to pressure [Taveras] with vague (and likely nonexistent) criminal conduct in the hopes that [Taveras] will agree to become a witness cooperating with the government in other matters. See Government Filing, p. 10 (“A conflict may arise during an investigation if a lawyer’s ‘responsibility to his other clients prevents the lawyer from exploring with the prosecutor whether it might be in the interest of one witness to cooperate with the grand jury or to seek immunity if the witness’s cooperation or testimony would be detrimental to the lawyer’s other client.’ [] ‘Professional ethics prevent [an attorney] from advising a witness to seek immunity or leniency when the quid pro quo is testimony damning to his other clients, to whom he also owes a duty of undivided fidelity[.] [] In many cases, however, that advice is precisely what the client needs to hear, even, or perhaps especially, when it ‘is unwelcome’ advice that ‘the client, as a personal matter, does not want to hear or follow.’ [] (internal citations omitted)). Ultimately, [Taveras] has been advised by counsel that he may, at any time, seek new counsel, and that includes if he ultimately decided he wanted to cooperate with the government. However, [Taveras] has not signified any such desire and that means counsel for [Taveras] can continue to represent [Taveras] both diligently and competently. [my emphasis]
And the filing makes clear that DOJ addressed at more length the conflict presented because Woodward was being paid by Save America PAC; while I’m uncertain about the local rules in SDFL, in DC there is a specific rule 1.8(e), requiring informed consent when an attorney is paid by someone else. While Woodward addressed it (see below), Woodward’s own description that Taveras could get another lawyer if he wanted to cooperate would seem to conflict with that rule’s independence of representation, and when he addresses the rule, Woodward doesn’t address confidentiality.
Furthermore, when Woodward addresses why being paid by Save America PAC is only natural for Taveras because Taveras worked for Trump, he makes an argument that wouldn’t explain the entirety of his representation for Nauta — or, for that matter, Kash Patel, a known Woodward client who testified in the stolen documents case.
While the government has often sought to imply an illicit purpose for the Save America PAC covering the legal costs of certain grand jury witnesses, the truth has always been very simple and legitimate: many of the grand jury witnesses, including [Taveras], are only subject to this investigation by virtue of their employment with entities related to or owned by Donald Trump. Save America PAC has placed no conditions on the provision of legal services to their employees. Ultimately and in compliance with Rule 1.8, [Taveras] was advised that Save America PAC would pay his legal fees, that [Taveras] could pursue other counsel than Mr. Woodward if he so desired, that Save America PAC was not Mr. Woodward’s client, that [Taveras] was Mr. Woodward’s client, and that [Taveras] could always make the decisions relating to the trajectory of [Taveras]’s grand jury testimony. [my emphasis]
Taveras is only a witness because Trump paid him to do IT work. But for much of the conduct about which Kash must have given testimony, represented by Woodward, he was the Acting Chief of Staff at the Pentagon. That’s the period when, per Kash, Trump conducted a wild declassification spree in his last days as President before packing up boxes to move to Mar-a-Lago.
And while most of Nauta’s exposure as a witness (and now defendant) arises from things Nauta did as Trump’s valet after both left the White House, ¶25 of the superseding indictment, describing the process by which Trump and Nauta packed up to leave, entails conduct from before Nauta left government employ.
If Trump were to be charged with 18 USC 2071, Nauta would be a witness to that.
In other words, brushing off the financial conflict with Taveras is one thing, but this conflict is also about Nauta. And Nauta is now being prosecuted for conduct that may have begun when American taxpayers were paying him, not Donald Trump. One of the things Nauta may be hiding by not cooperating are details about Trump’s overt intentions as they both packed up boxes.
And that’s not even the most damning part of the filing DOJ submitted yesterday.
That motion reveals, first of all, that DOJ informed Judge Cannon of the conflict hearing on June 27.
On June 27, 2023, the government filed a sealed motion asking the Court to conduct an inquiry into potential conflicts of interests arising from attorney Stanley Woodward, Jr.’s simultaneous representation of [Taveras] and Waltine Nauta (“conflicts hearing motion”); and a separate sealed motion seeking Court authorization to disclose the conflicts hearing motion by, among other things, attaching a copy of the motion to a sealed notice to be filed in United States v. Donald J. Trump, Waltine Nauta, and Carlos De Oliveira, No. 23-cr-80101 (S.D. Fla.) (“Florida case”). The Court granted both motions, and the government filed the sealed notice, with a copy of the conflicts hearing motion attached, the same day.
As DOJ noted in its reply, that’s what the sealed docket entries 45 and 46 are.
That is, Aileen Cannon knew this was happening in real time. DOJ wasn’t hiding anything from her.
That motion to unseal also describes that DOJ intended to file “all information related to the conflicts hearing,” including the appointment of Michelle Peterson to represent Taveras, in a sealed supplement to its motion for a Garcia hearing.
The government therefore moves for an order permitting it to disclose to the court in the Florida case all information related to the conflicts hearing, including the fact and dates of the hearing, the resulting appointment of AFPD to represent [Taveras], and, if necessary, any filings, orders, or transcripts associated with the conflicts hearing. The government initially intends to include such information only in a sealed supplement to its motion for a Garcia hearing.
In other words, these two docket entries that Judge Cannon ordered be stricken, five days after they were posted and therefore made available to both Cannon and Woodward?
They include the material that, Woodward claims, he had never seen before DOJ’s reply.
Judge Cannon just gave Woodward another bite at the apple, as well as another six days before his client gets a Garcia hearing, based off Woodward’s claim that he had never seen information DOJ had shared (and which would have been available to Woodward for five days) but then Cannon herself had removed from the record. DOJ did provide this information in its initial motion. But because of actions Cannon took — the judicial equivalent of flushing that information down the toilet — Woodward (after waiting three days himself before first asking Judge Boasberg to share the information) claimed that he had never seen it before.
DOJ may have had a sense of where this was going, because back on July 30, in the same paragraph where they asked for permission to submit this information as part of a sealed supplement, DOJ also asked for permission to share it in unsealed form if things came to that.
[T]o ensure that it does not need to return to the Court for further disclosure orders, the government also seeks authorization to disclose information related to the conflicts hearing more broadly in the Florida case, as the need arises, including in briefing and in-court statements related to the Garcia hearing.
Things are going to get really testy going forward (if they haven’t already under seal) because, in a filing that DOJ did not first ask permission to file (but which I suspect would be authorized by a sealed order elsewhere in the docket, not to mention general ethical obligations requiring DOJ to inform her of everything going on in DC), DOJ just revealed that Judge Cannon threw out precisely the information that she’s now using to grant Woodward’s request for a sur-reply and — between the three days he waited to ask and the six she granted him to respond — nine more days to delay such time before Walt Nauta might be told about the significance of all the conflicted representation Woodward has taken on.
But I also expect that this will escalate quickly in one or another forum. Aileen Cannon was informed weeks ago of two significant conflicts in the representation of defendants before her, and rather than attend to those conflicts (or decide, simply, that she was going to blow them off, which in some forms might be an appealable decision), she has helped Woodward simply stall any resolution to the potential conflict.
Remember how I’ve promised I would start yelling if I believed that Cannon was doing something clearly problematic to help Trump? I’d say we’re there.
Update: Corrected my own math on the delay, which I said was 11 days but is 9. Ignoring that Cannon asked for lengthy briefing on a topic that most judges would just issue an order on, the key delays are:
5 days before Cannon flushed the sealed supplement down the judicial toilet
3 days between the DOJ reply and Woodward’s panicked demand for a sur-reply based on a claim that DOJ hadn’t previously raised the things Cannon flushed
6 days of delay before Woodward will submit his sur-reply
https://www.emptywheel.net/wp-content/uploads/2022/09/Cannon.webp509916emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-08-26 08:11:232023-08-26 08:26:47Aileen Cannon Working Hard to Protect Stan Woodward; Doing Nothing to Protect Walt Nauta or Carlos De Oliveira
As described here, yesterday’s reply on the motion for a Garcia hearing in the stolen documents case revealed a good deal of grand jury information about Yuscil Taveras’ testimony.
It revealed:
Trump’s IT worker, Taveras, testified (falsely, the government claims) in March
DOJ obtained two more subpoenas for surveillance footage, on June 29 and July 11, 2023 (the existence of those subpoenas, but not the date, had already been disclosed in a discovery memo)
It included the docket number associated with the conflict review — 23-GJ-46 — and cited Woodward’s response to the proceedings
James Boasberg provided Taveras with conflict counsel
Taveras changed his testimony after consulting with an independent counsel
Under grand jury secrecy rules, DC Chief Judge Boasberg would have had to approve sharing that information, but the docket itself remains sealed and Boasberg has not unsealed any of the proceedings.
The filing also explains two sealed entries in Judge Cannon’s docket: dockets 45 and 46.
DOJ informed Cannon of the grand jury proceedings in those two docket entries.
The Government notified this Court on the same day, by sealed notice, of the filing in the District of Columbia. See ECF Nos. 45, 46.
That explains, then, two of the multiple sealed entries on the docket. But those weren’t the only sealed dockets.
There was one before DOJ’s notice.
And one after.
Both of those may be orders from Cannon, since she wouldn’t have to ask for permission to file something under seal.
There’s the twin entry on August 2, in which DOJ asked to seal what was probably a description of the potential conflict involving Stan Woodward’s representation of three other witnesses who may testify against Walt Nauta.
Then there were five more — or more likely, two, and then three — on August 11 and 14.
All those sealed docket entries took place before — yesterday’s filing disclosed — the grand jury “completed its term” on August 17.
The Government notes that the grand jury in the District of Columbia completed its term on August 17, 2023.
DC grand juries generally sit for 18 months, but if this was a special grand jury focused only on this investigation (which has always been the assumption), it would have been convened (again, per the filing), in April, 2022, two months shy of that.
There’s no guarantee those other docket entries pertain to the DC grand jury. But it’s one possible explanation for the sealed entries.
Certainly, DOJ afforded itself of the opportunity presented by Cannon’s order to brief what she called “the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertienent to the instant indicted matter in this district.
Waltine Nauta shall file a response to the Motion for a Garcia hearing [ECF No. 97] on or before August 17, 2023. Among other topics as raised in the Motion, the response shall address the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertinent to the instant indicted matter in this district. The Special Counsel shall respond to that discussion in a Reply in Support of the Motion [ECF No. 97], due on or before August 22, 2023.
As DOJ’s reply noted, this wasn’t post-indictment investigation. Rather, it was pre-indictment investigation for the indictment adding Carlos De Oliveira and adding new charges against Trump and Nauta. And DOJ had to deal with all that in DC, because that’s where Taveras’ gave his original false testimony.
Following the indictment in this district, it was appropriate to use the grand jury in the District of Columbia to investigate false statements by Trump Employee 4 and De Oliveira. Neither individual was named in the indictment against Nauta and Trump, and venue for charges based upon their false statements in the District of Columbia would lie only in that district. It therefore necessarily follows that the grand jury was not used “for the primary purpose of strengthening its case on a pending indictment or as a substitute for discovery,” even if that “may be an incidental benefit.” United States v. Beasley, 550 F.2d 261, 266 (5th Cir. 1977).
[snip]
A claim of improper use of the grand jury here is even further afield than in Beasley. Whereas the recanted testimony in Beasley was relevant only to the charges pending in the indictment, as described above, Trump Employee 4’s corrected testimony is probative of “crimes not covered in the indictment.” US Infrastructure, Inc., 576 F.3d at 1214.
Not only was it appropriate to use the grand jury to investigate false statements by Trump Employee 4 and De Oliveira, it was appropriate to use the grand jury in the District of Columbia, where the statements were made and where venue for any false-statement charges would be proper. See United States v. John, 477 F. App’x 570, 572 (11th Cir. 2012) (unpublished) (concluding that venue for a violation of 18 U.S.C. § 1001 is “proper only in the district or districts where the defendant made the false statement”); United States v. Paxson, 861 F.2d 730, 733-34 (D.C. Cir. 1988) (upholding conviction for perjurious grand jury testimony in the District of Columbia material to antitrust charges subsequently brought in the Northern District of Georgia). And it was necessary to bring to the attention of the Chief Judge in that district the potential conflict that arose from Mr. Woodward’s representation of Trump Employee 4 in those proceedings. As “an incident of [its] supervisory power, a court has jurisdiction” to consider potential conflicts of interest that “relate[] to a grand jury proceeding within that court’s control,” and when the Government discerns such a potential conflict of interest, it “is not only authorized but is in fact obligated to bring the problem to that court’s attention.” In re Gopman, 531 F.2d 262, 265-66 (5th Cir. 1976).
Nauta is therefore incorrect when he claims (ECF No. 126 at 8) that the Government was “attempt[ing] to diminish the Court’s authority over the proceedings in this case and to undermine attorney-client relationships.” When a conflict arose in the context of Trump Employee 4’s status as a putative defendant in the District of Columbia, the Government raised the conflicts issue there; now that a conflict arises from potential cross-examination of Trump Employee 4 in the case against Nauta in this district, the Government has raised the conflicts issue here. Nauta makes no showing of improper use of the grand jury, let alone the strong showing that is required to rebut the presumption of regularity in grand jury proceedings.
There’s far more secrecy than there should be, for the prosecution of the former President, even accounting for the highly sensitive documents involved.
Not only has Cannon made it prohibitively difficult for the media to cover the proceedings, but she canceled an open hearing scheduled for August 25 in lieu of a sealed hearing — secret time, secret place — to discuss the classified protective order. She did that while refusing to let DOJ protect the secrecy of the grand jury in DC.
It’s her courtroom, and if she wants to pick and choose which proceedings against the former President become public, to some degree that’s her prerogative.
Having been forced to unseal these matters by Cannon’s order, though, this filing (and in the Garcia motion pertaining to John Irving), DOJ laid out how damning the alternative can be.
https://www.emptywheel.net/wp-content/uploads/2022/08/Screen-Shot-2022-08-31-at-6.40.53-AM.png11481718emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-08-23 05:49:522023-08-23 05:49:52The Secrets within Donald Trump’s Stolen Secrets Docket
Nine pages into the twelve page reply regarding DOJ’s request that Judge Aileen Cannon hold a Garcia hearing to explain to Walt Nauta the potential hazards of Stan Woodward’s conflicts in the stolen document case, DOJ warns Judge Cannon that if she does what Woodward wants her to do, it will be (reversible) error.
In his response, Woodward had suggested that rather than hold a hearing to explain to Nauta the potential conflict and hazards to his defense, Judge Cannon should just exclude the testimony of Yuscil Taveras, the IT guy who testified against Nauta and Carlos De Oliveira.
To do that, DOJ argued, would be unprecedented, particularly given that Woodward had advance notice of this conflict.
III. It Would Be Error to Suppress Trump Employee 4’s Testimony
Nauta contends (ECF No. 126 at 4-5) that if the Court finds a conflict, it should preclude Trump Employee 4 from testifying at trial, rather than employ more routine remedies. That proposed remedy is contrary to precedent and—except for the district court ruling reversed in United States v. Messino, 181 F.3d 826 (7th Cir. 1999)—would appear to be unprecedented.
Courts have rejected exclusion of evidence as a remedy to avoid a conflict of interest, concluding that evidence that is “relevant to the Government’s case” should not “be excluded to accommodate a defendant’s choice of counsel.” United States v. Urbana, 770 F. Supp. 1552, 1559 n.17 (S.D. Fla. 1991); see Messino, 181 F.3d at 830; United States v. Lech, 895 F. Supp. 586, 592- 93 (S.D.N.Y. 1995). Exclusion of probative testimony “is an extreme sanction and would only harm the interests of justice.” Lech, 895 F. Supp. at 592. A “defendant’s choice of counsel” should not “take precedence over the Government’s discretion in deciding what charges to prosecute and how to present its case.” United States v. Pungitore, 910 F.2d 1084, 1142-43 (3d Cir. 1990).
[snip]
Nauta has not identified any case, and the Government is unaware of one, in which a court has excluded evidence to avoid a conflict on facts remotely similar to this case, where the Government put Mr. Woodward on notice long ago about potential conflicts, and he is now seeking to affirmatively use those conflicts to gain a tactical advantage at trial by excluding highly incriminating evidence to the benefit of not only his own client but also a co-defendant (Trump) whose PAC is paying his legal fees. The Court should not countenance this maneuver. [my emphasis]
Before they provided this implicit warning that if she makes such a decision, DOJ laid out how and why Taveras testified in DC, after the original indictment obtained in Florida. As I predicted, it’s because he had made false claims in an earlier appearance before the grand jury — one Woodward (who was still representing him) knew about.
In March, DOJ claims, Taveras gave false testimony to the grand jury about this, denying all knowledge of an attempt to destroy surveillance footage.
Before that, DOJ raised Woodward’s conflict, but he said he was not aware of one.
Then, after the June 8 indictment in Florida, DOJ warned Taveras, through Woodward, he was a target, and served two more subpoenas for surveillance footage. After serving the target letter, DOJ got DC Chief Judge James Boasberg involved and told Judge Cannon about it. Woodward raised no objection to a review of the conflict in DC. And that’s when Judge Boasberg assigned a public defender to advise Taveras, which led him to revise his testimony against Nauta and De Oliveira.
The target letter to Trump Employee 4 crystallized a conflict of interest arising from Mr. Woodward’s concurrent representation of Trump Employee 4 and Nauta. Advising Trump Employee 4 to correct his sworn testimony would result in testimony incriminating Mr. Woodward’s other client, Nauta; but permitting Trump Employee 4’s false testimony to stand uncorrected would leave Trump Employee 4 exposed to criminal charges for perjury. Moreover, an attorney for Trump had put Trump Employee 4 in contact with Mr. Woodward, and his fees were being paid by Trump’s political action committee (PAC). See In re Grand Jury Investigation, 447 F. Supp. 2d 453, 460 (E.D. Pa. 2006) (explaining that potential conflicts can be “further heightened by the financial dynamics of the joint representation,” where, for example, a client “did not independently select the” attorney but instead had the attorney “pre-selected for them by the attorney to the [person] who is the central focus of the grand jury proceedings”).
On June 27, 2023, consistent with its responsibility to promptly notify courts of potential conflicts, and given the prospective charges Trump Employee 4 faced in the District of Columbia, the Government filed a motion for a conflicts hearing with the Chief Judge of the United States District Court for District of Columbia (Boasberg, C.J.), who presides over grand jury matters in that district. The Government notified this Court on the same day, by sealed notice, of the filing in the District of Columbia. See ECF Nos. 45, 46. Mr. Woodward raised no objection to proceeding in the District of Columbia regarding Trump Employee 4. In fact, he responded that he “welcome[d] the Court’s inquiry into [his] representation of” Trump Employee 4, Response at 1, In re Grand Jury Subpoena, No. 23-GJ-46 (D.D.C. June 30, 2023), but asserted that he had no “information to support the Government’s claim that [Trump Employee 4] has provided false testimony to the grand jury,” and that “even if [Trump Employee 4] did provide conflicting information to the grand jury such that could expose him to criminal charges, he has other recourse besides reaching a plea bargain with the Government. Namely, he can go to trial with the presumption of innocence and fight the charges as against him.” Id. at 3. According to Mr. Woodward, if Trump Employee 4 “wishes to become a cooperating Government witness, he has already been advised that he may do so at any time.” Id.
Chief Judge Boasberg made available independent counsel (the First Assistant in the Federal Public Defender’s Office for the District of Columbia) to provide advice to Trump Employee 4 regarding potential conflicts. On July 5, 2023, Trump Employee 4 informed Chief Judge Boasberg that he no longer wished to be represented by Mr. Woodward and that, going forward, he wished to be represented by the First Assistant Federal Defender. Immediately after receiving new counsel, Trump Employee 4 retracted his prior false testimony and provided information that implicated Nauta, De Oliveira, and Trump in efforts to delete security camera footage, as set forth in the superseding indictment. [my emphasis]
Because Taveras’ false statements to the grand jury were in DC, venue would have been DC.
Not only was it appropriate to use the grand jury to investigate false statements by Trump Employee 4 and De Oliveira, it was appropriate to use the grand jury in the District of Columbia, where the statements were made and where venue for any false-statement charges would be proper. See United States v. John, 477 F. App’x 570, 572 (11th Cir. 2012) (unpublished) (concluding that venue for a violation of 18 U.S.C. § 1001 is “proper only in the district or districts where the defendant made the false statement”); United States v. Paxson, 861 F.2d 730, 733-34 (D.C. Cir. 1988) (upholding conviction for perjurious grand jury testimony in the District of Columbia material to antitrust charges subsequently brought in the Northern District of Georgia). And it was necessary to bring to the attention of the Chief Judge in that district the potential conflict that arose from Mr. Woodward’s representation of Trump Employee 4 in those proceedings. As “an incident of [its] supervisory power, a court has jurisdiction” to consider potential conflicts of interest that “relate[] to a grand jury proceeding within that court’s control,” and when the Government discerns such a potential conflict of interest, it “is not only authorized but is in fact obligated to bring the problem to that court’s attention.” In re Gopman, 531 F.2d 262, 265-66 (5th Cir. 1976)
The term of that grand jury ended on August 17.
Judge Cannon has already been reversed by the 11th Circuit in humiliating fashion on this matter once.
DOJ is trying to help her avoid a second reversal.
Meanwhile, twice in this filing (bolded above), DOJ notes that Woodward is being paid by Trump’s PAC. DOJ is inching closer to raising that as a separate conflict in his representation of Nauta.
https://www.emptywheel.net/wp-content/uploads/2023/06/Screenshot-2023-06-10-at-08.02.55.png692600emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-08-22 17:56:422023-08-22 18:07:56DOJ Invites Aileen Cannon to Avoid Another Reversible Error
The headline revelation in DOJ’s renewed bid for a classified protective order in the Trump case is that Trump wants to be able to discuss classified documents with his attorneys in his offices, which the government correctly notes, “seeks permission to do so in the very location at which he is charged with willfully retaining the documents charged in this case.”
I’m sure we’ll come back to that, particularly if Judge Aileen Cannon entertains Trump’s demand seriously (under CIPA the government could immediately appeal any decision to the 11th Circuit).
But I’ve been more interested in Walt Nauta’s demand: that he get to see all the stolen classified documents charged in the indictment.
Defendant Nauta objects to language that limits his personal access to classified information, as opposed to access by his cleared counsel;
[snip]
Defendant Nauta is charged only with obstruction and false statement offenses related the movement and concealment of Defendant Trump’s boxes; the contents of the classified documents contained in the boxes, and the national defense information that they contain, are not material to proving or defending against those charges. Moreover, Defendant Nauta’s counsel will have the opportunity to review the classified discovery, and should they see a need to share any particular classified documents with Defendant Nauta, counsel will have an opportunity to raise the issue with the Government and the Court.1
1 The Government intends to provide to Defendant Nauta’s counsel all classified discovery identified to date.
[snip]
As explained, Defendant Nauta has no need to review the contents of the classified information. His cleared counsel will have full access to the documents in preparing his defense, and the protective order will allow Nauta to seek permission to review classified information personally if he establishes a need to know. The procedure set forth in the Government’s proposed protective order appropriately balances the need to protect classified information while allowing Defendant Nauta’s counsel the ability to assess the documents.
I assume this is one more effort from Stan Woodward — who is being paid by Trump’s PAC — to test the boundaries of Judge Cannon’s indulgence, a tactical move to figure out how much the defense team can get away with.
This is, in my opinion as someone who has been covering Espionage Act cases for over 15 years, an ill-considered move.
As I noted in my first review of the original indictment, Nauta’s alleged overt acts already then fulfilled all the elements of the offense of 18 USC 793(g), conspiring with Trump to hoard classified documents, which would dramatically increase Nauta’s legal jeopardy. Already then, Nauta was at risk of being superseded with charges that expose him to over a decade of prison time, possibly two.
Effectively, this demand from Woodward is a request: Please give my client a Need to Know what is in those 32 highly classified documents that Nauta wouldn’t even have had the Need to Know when he was working in the White House.
The one thing that would give Nauta a Need to Know what’s in the stolen documents — as the government intimates — is if Nauta were charged under the Espionage Act, as he could be under 18 USC 793(g).
Which brings me to a key detail in this WaPo story — which reveals that, tomorrow, Trump will disclose he has spent $40M on lawyers, eating up his campaign cash (which makes Will Hurd’s quip from the other night — that Trump is running for President to stay out of prison — pretty timely).
Stan Woodward — the lawyer who has decided it’d be a good idea to ask that his client be given a Need to Know what’s in the stolen classified documents — has started to face very serious conflict problems that have been inevitable for months.
Woodward represents at least the following people (I’ll add more when I remember them):
Peter Navarro (who goes on trial for contempt in September)
Dan Scavino
Kash Patel
Walt Nauta
Will Russell, who testified on July 20
Taylor Budowich, who testified in Florida
Brad Parscale in AJ Delgado’s pregnancy discrimination suit against the Trump campaign
Kelly Meggs, who has already been sentenced for sedition
Freddie Klein, the former State Department official who was part of the Tunnel battle, also recently sentenced
Ryan Samsel, who kicked off the entire riot on January 6
Critically, Woodward was representing Yuscil Taveras, whose recent testimony is one of the things that made it possible to add Carlos De Oliveira (represented by a different Trump paid lawyer) to the indictment and include the Keystone Cops effort to delete footage. That created a conflict between Nauta’s interests and Taveras’, and someone — presumably Chief Judge James Boasberg — appointed a conflict counsel for Taveras, which is what led to Taveras becoming dramatically more forthcoming.
Nauta, who investigators long considered a key witness in the classified documents investigation, has been represented for many months by lawyer Stan Woodward, with Save America footing the bills. Woodward also represents several other Trump-linked clients who have been subpoenaed as part of Smith’s investigations, including an IT worker named Yuscil Taveras.
For much of the classified documents probe, there did not appear to be a conflict between Nauta and Taveras.
After Trump and Nauta were indicted in June, however, Taveras decided he had more he wanted to tell the authorities about his conversations with De Oliveira, according to people familiar with the investigation who spoke on the condition of anonymity to describe private discussions.
Taveras offered information implicating all three defendants in an alleged conspiracy to cover up evidence, these people said.
Legal ethics rules bar attorneys from arguing adverse positions in a case — such as defending one client by cross-examining another client, or advising one person who is testifying to investigators or a grand jury against another.
Once Taveras’s position put him potentially at odds with Nauta’s defense, a judge reviewed the issue, a person familiar with the matter said. A second lawyer — not paid by the PAC — was brought in to provide legal advice to Taveras, who then spoke to investigators, according to people familiar with the matter. [my emphasis]
I’ve been waiting for the moment when DOJ would ask for a conflict counsel to be appointed for Nauta: because Woodward getting paid by a PAC that is under investigation for this spending is, by itself, a potential conflict. But this describes that a judge, probably Boasberg, brought in a conflict counsel for Taveras.
It’s not clear whether Taveras has flipped or just gotten far more cooperative — he fits the description of a person who had received a target letter, so the decision to be more forthcoming may have been entirely about self-preservation.
But Taveras has not only provided damaging testimony about Nauta, De Oliveira, and Trump, but he likely can explain who from Trump Organization in New York participated in the still uncharged successful efforts to delete surveillance footage, who might be able to give someone the rights to do that.
That is, he likely has testimony that could implicate the Matthews Calamari, key players in Trump’s corporate empire.
More importantly, prosecutors will do with Taveras what DOJ did with Cassidy Hutchinson after she described that Stefan Passantino was discouraging her from being all that forthcoming: ask more about the nature of that legal arrangement. They may also ask about Susie Wiles’ role in it (which is also laid out in the WaPo article), which also came up in even Hutchinson’s publicly released testimony about these matters.
And Wiles, of course, is not only the person arranging all this conflicted legal representation for people and now running Trump’s campaign, but she’s also someone who has been involved in the use of the documents; she is also reportedly the person to whom Trump showed a classified document in Bedminster she was not cleared to see.
It’s not just that Trump is spending more on lawyers than he is taking in. But he’s spending on lawyers whose conflicts make this entire scheme a fragile game of jenga.
One that may have started to fall apart.
Update: Trump Employee 5 in the superseding indictment must also have given testimony, which may also be fairly recent. Given that he’s the kind of person who’d be consulted about loyalty, he presumably also was part of the in-house lawyering team.
Update: NYT has their own version of this preemptive limited hangout of Trump’s financial shell game. It mentions the potential legal problem with using funds raised for election security to pay lawyers, but steers clear of the ongoing investigation into it.
The PAC was the entity in which Mr. Trump had parked the more than $100 million raised when he sought small-dollar donations after losing the 2020 election. Mr. Trump claimed he needed the support to fight widespread fraud in the race. Officials, including some with his campaign, turned up no evidence of widespread fraud.
Mr. Trump used some of that $100 million for other politicians and political activities in 2022, but he also used it to pay more than $16 million in legal fees, most of them related to investigations into him, and at least $10 million of which was for his own personal fees.
Save America began 2023 with just $18 million in cash on hand, which is less than half of what was spent on legal bills this year.
Campaign finance experts are divided on whether Mr. Trump is even able to continue to use the PAC to pay for his personal legal bills, as he became a candidate last November.
Update: CNN has confirmed the timeline: Taveras got a target letter after the first indictment, then ditched Woodward, then testified.
Yuscil Taveras, a Mar-a-Lago employee who oversees the property’s surveillance cameras, received a target letter from federal prosecutors after former President Donald Trump was first indicted in June on charges related to his alleged mishandling of classified documents after leaving office, sources told CNN.
[snip]
After receiving the target letter, Taveras changed lawyers because his attorney, Stan Woodward, also represented Nauta, which presented a conflict, sources said.
Update: Added two more Woodward clients.
Update: Added another Woodward client.
https://www.emptywheel.net/wp-content/uploads/2022/08/Screen-Shot-2022-08-31-at-6.40.53-AM.png11481718emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-07-30 00:33:132023-08-02 13:30:16Stan Woodward Wants to Give Walt Nauta a Need to Know the Contents of the Stolen Documents
“There is no dispute in this case that Pence lacked the authority to reject certified electoral votes, [redacted].”
That’s the foundational principle of the opinion DC Chief Judge James Boasberg wrote on March 27, finding that just a limited number of topics about which DOJ wanted to question Mike Pence were covered by Speech and Debate.
Boasberg unsealed the ruling on Friday.
Trump had no standing in this dispute — his ability to prevent Pence’s testimony was limited to Executive Privilege claims, which had already decided months earlier with Pat Cipollone and others. So on the matter of whether Pence had any authority to reject the certifications, the two parties before Boasberg were always in agreement.
From that agreement, then, Boasberg treated Trump’s pressure on Pence to do so anyway as akin to the bribe at issue in US v. Brewster, a 1972 ruling that held that a conversation in which a Senator accepted a bribe was not protected under Speech and Debate Clause.
Brewster reflects the commonsense proposition that the Clause does not protect conversations whose principal purpose is to convince a Member to do something the Member cannot lawfully do.
[snip]
The bottom line is that conversations exhorting Pence to reject electors on January 6th are not protected. They fall under Brewster‘s rule that communications urging a legislator to act unlawfully or ultra vires are not preparatory — or at most are only incidentally so — to a legislative function.
That thinking is in no way controversial (unless you adhere to John Eastman’s unmoored theories about the Electoral College Act).
But the means by which Boasberg came to this decision are important for another reason.
That’s because “otherwise unlawful act” is a key part of the debate — currently before the DC Circuit — about the meaning of “corrupt purpose” in 18 USC 1512(c)(2), particularly as it applies to January 6. Conservatives on the court want to adopt a rule saying that an act is only “corrupt” if someone is seeking a personal benefit — a definition that would apply to Trump far more easily than the hundreds of other January 6 suspects charged with obstruction. Liberals want to adopt a rule saying something is corrupt more broadly. But the happy middle, a stance first adopted by Trump appointee Dabney Friedrich in December 2021, would hold that an action to obstruct the vote certification is “corrupt” if it is otherwise illegal, one of two decisions on which Boasberg built his own decision upholding the obstruction statute for January 6.
And Boasberg’s decision builds off the premise that Trump’s demands asked Pence to do something he couldn’t lawfully do.
Akin to bribe.
It’s just a small part of the many pieces that will go into a potential Trump charge. But an important one.
The DC Chief Judge has treated Trump’s demands that Pence reject the vote certifications as an otherwise illegal act.
https://www.emptywheel.net/wp-content/uploads/2017/05/Pence.png7731200emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-06-11 06:08:202023-06-11 06:08:20James Boasberg Likens Trump’s Demands on Pence to a Bribe
I’ve become convinced that what I will call the Mar-a-Lago indictment — because I doubt this will be the only stolen documents one — is a tactical nuke: A massive tool, but simply a tactical one.
As I’ve laid out, it charges 31 counts of Espionage Act violations, each carrying a 10-year sentence and most sure to get enhancements for how sensitive the stolen documents are, as well as seven obstruction-related charges, four of which carry 20-year sentences. The obstruction-related charges would group at sentencing (meaning they’d really carry 20 year sentence total), but Espionage Act charges often don’t and could draw consecutive sentences: meaning Trump could be facing a max sentence of 330 years. Walt Nauta is really facing 20 years max — though probably around three or four years.
Obviously, Trump won’t serve a 330 year sentence, not least because Trump is mortal, already 76, and has eaten far too many burgers in his life.
For his part, Nauta should look on the bright side! He has not, yet, been charged with 18 USC 793(g), conspiring with Trump to hoard all those classified documents, though the overt acts in count 32, the conspiracy to obstruct count, would certainly fulfill the elements of offense of a conspiracy to hoard classified documents. If Nauta were to be charged under 793(g), he too would be facing a veritable life sentence, all for helping his boss steal the nation’s secrets. And for Nauta, who is in his 40s and healthy enough to lug dozens of boxes around Trump’s beach resort, that life sentence would last a lot longer than it would for Trump.
And that’s something to help understand how this is tactical.
I first started thinking that might be true when I saw Jack Smith’s statement.
He emphasized:
A grand jury in Florida voted out the indictment
The gravity of the crimes
The talent and ethics of his prosecutors
That Trump and Walt Nauta are presumed innocent
He will seek a Speedy Trial
A Florida jury will hear this case
The dedication of FBI Agents
He packed a lot in fewer than three minutes, but the thing that surprised me was his promise for a Speedy Trial. He effectively said he wants to try this case, charging 31 counts of the Espionage Act, within 70 days.
That means the trial would start around August 20, and last — per one of the filings in the docket — 21 days, through mid-September. While all the other GOP candidates were on a debate stage, Trump would be in South Florida, watching as his closest aides described how he venally refused to give boxes and boxes of the nation’s secrets back.
There’s not a chance in hell that will happen, certainly not for Trump. Even if Trump already had at least three cleared attorneys with experience defending Espionage Act cases, that wouldn’t happen, because the CIPA process for this case, the fight over what classified evidence would be available and how it would be presented at trial, would last at least six months. And as of yesterday, he has just one lawyer on this case, Todd Blanche, who is also defending Trump in the New York State case.
In fact, even though I understand how CIPA works, I’m not convinced this case can be tried. Before the indictment was unsealed, I imagined that Smith would charge about six documents, classified Secret, each of which demonstrated that Trump was exploiting the nation’s secrets, and just nod to the sensitivity of all the more sensitive secrets he was storing in an unlocked bathroom. Boy howdy was I wrong! Peter Strzok does the math to show that DOJ actually charged all but 13 of the Top Secret documents obtained either with the May 11, 2022 subpoena or in the August 8, 2022 search. And these are not just Top Secret. Of those documents whose compartments themselves are not classified, the documents include satellite intelligence, human intelligence, nuclear intelligence. Brandon Van Grack, one of the few other people who has been interested in the CIPA aspect of this case, seemed to struggle to describe the documents charged in this case.
One of the only ways I can imagine taking this to trial easily would be if the government had simply burned all the collection involved (including on the two Five Eyes documents), meaning presenting the documents he stole at trial would consist of one after another spook describing collection programs the government had to shut down because of Trump. In fact, last September, DOJ suggested they had had to do just that by invoking a letter NSA Director Mike Rogers sent in sentencing Nghia Pho. That letter described how, after discovering that Pho had compromised a bunch of NSA programs, the NSA had had to abandon much of it.
Once the government loses positive control over classified material, the government must often treat the material as compromised and take remedial actions as dictated by the particular circumstances. Depending on the type and volume of compromised classified material, such reactions can be costly, time consuming and cause a shift in or abandonment of programs. In this case, the fact that such a tremendous volume of highly classified, sophisticated collection tools was removed from secure space and left unprotected, especially in digital form on devices connected to the Internet, left the NSA with no choice but to abandon certain important initiatives, at great economic and operational cost.
For the moment, then, consider the possibility that this indictment is, as far as it involves Trump, simply a messaging document to alert Republicans who can still be reasoned with that Trump left the most sensitive secrets on a stage at Mar-a-Lago while weddings were going on and as a result, the IC simply shut down all the programs he had compromised.
My comment about the difficulty of taking this to trial is not, however, true for Nauta. Because he wasn’t (yet) charged with conspiring to steal these secrets, you could make it all the way to sentencing without having to expose the secrets Trump destroyed.
So let’s talk about Nauta.
As the indictment describes, he was interviewed on May 26, 2022. As ¶53 through ¶62 show, that interview happened in the middle of the scheme to fool Evan Corcoran into submitting a false verification that Trump had returned everything (Corcoran, in turn, fooled Christina Bobb into signing it). Nauta moved boxes on the following days before and after his first interview:
May 22: One box out of storage
May 24: 3 boxes out of storage
May 26: Interview
May 30: 50 boxes out of storage
June 1: 11 boxes out of storage
June 2: 30 boxes from Trump’s residence to storage
As the indictment describes, Nauta moved 64 boxes out of storage and 30 back. This had the effect of ensuring that at least 34 boxes of classified documents were not reviewed by Corcoran.
There’s also this paragraph, one of the most important in the indictment:
72. Earlier that same day, NAUTA and others loaded several of TRUMP’s boxes along with other items on aircraft that flew TRUMP and his family north for the summer.
That paragraph makes it clear that some of those 34 boxes went to Bedminster, never to be seen again. I’ll count later and figure how many it was.
So in the middle of this scheme to keep 34 boxes of classified documents away from Corcoran, Nauta was interviewed by the FBI and asked about the last time Trump personally asked Nauta to sort through boxes of classified documents so he could hoard some. Several things in this indictment establish that Nauta knew this involved classified documents, including this picture from when Nauta arrived in the supposedly locked storage room to find one of the boxes had been knocked over by who knows what force and spilled open.
One of the most important paragraphs to demonstrate Nauta’s knowledge was that on January 15, Nauta texted the person who was helping him with these documents, saying:
One thing he asked
Was for new covers for the boxes, for Monday m.
Morning
*can we get new box covers before giving these to them on Monday? They have too much writing on them..I marked too much
When whatever force was in the storage room to knock over that box, they were labeled with their contents, because Nauta had sorted and labeled them.
With all that in mind, go back to Count 38 and read about the answers Nauta gave in an interview in the middle of a second effort to sort classified documents so some of them could be taken to Bedminster, never to be seen again. He was asked about the first time that happened. And days after he had moved boxes to Trump’s residence again, he claimed he was unaware of bringing them to the suite in the first place.
Question: Does any – are you aware of any boxes being brought to his home – his suite?
Answer: No.
The alleged lies go on — but they were enormous.
With all that in mind, I’d like to return to a story that was floating in the press until a few weeks ago about the second time Nauta was interviewed. As parroted by the NYT on May 4 (and not for the first time), DOJ made a mistake last fall because, when Nauta refused to cooperate, they didn’t choose to immunize him. They were simply helpless to get the information Nauta could share via any other means!
Last fall, prosecutors faced a critical decision after investigators felt Mr. Nauta had misled them. To gain Mr. Nauta’s cooperation, prosecutors could have used a carrot and negotiated with his lawyers, explaining that Mr. Nauta would face no legal consequences as long as he gave a thorough version of what had gone on behind closed doors at the property.
Or the prosecutors could have used a stick and wielded the specter of criminal charges to push — or even frighten — Mr. Nauta into telling them what they wanted to know.
The prosecutors went with the stick, telling Mr. Nauta’s lawyers that he was under investigation and they were considering charging him with a crime.
The move backfired, as Mr. Nauta’s lawyers more or less cut off communication with the government. The decision to take an aggressive posture toward Mr. Nauta prompted internal concerns within the Justice Department. Some investigators believed that top prosecutors, including Jay Bratt, the head of the counterespionage section of the national security division at the Justice Department, had mishandled Mr. Nauta and cut off a chance to win his voluntary cooperation.
More than six months later, prosecutors have still not charged Mr. Nauta or reached out to him to renew their conversation. Having gotten little from him as a witness, they are still seeking information from other witnesses about the movement of the boxes.
The story was always obvious bullshit. As I noted on May 23,
If being misled by Nauta led prosecutors to look more closely at the larger timeline of the missing surveillance video, only to find suspect ties to the Saudis, it was in no way a mistake. On the contrary, Woodward’s own decisions would have directly led to intensified scrutiny of his client (as his decisions similarly are, in the effort to get Navarro to turn over Presidential Records Act documents).
Since Nauta got a target letter, the story has dramatically changed. It changed into a story in which Jay Bratt said something that Stan Woodward — the guy paid by Trump’s PAC whose legal advice to Nauta has left him facing obstruction charges — said something that seemed like coercion to Woodward.
At issue is an incident that took place last year, around November, when prosecutors were trying to gain the cooperation of valet Walt Nauta, who has been under scrutiny because prosecutors suspected he helped the former president conceal classified documents that had been subpoenaed.
Nauta had already spoken to prosecutors in the investigation when they called his lawyer Stanley Woodward and summoned him to a meeting at justice department headquarters for an urgent matter that they were reluctant to discuss over the phone, the letter said.
When Woodward arrived at the conference room, he was seated across from several prosecutors working on the investigation, including the chief of the counterintelligence section, Jay Bratt, who explained that they wanted Nauta to cooperate with the government against Trump, the letter said.
Nauta should cooperate with the government because he had given potentially conflicting testimony that could result in a false statements charge, the prosecutors said according to the letter. Woodward is said to have demurred, disputing that Nauta had made false statements.
Bratt then turned to Woodward and remarked that he did not think that Woodward was a “Trump guy” and that “he would do the right thing”, before noting that he knew Woodward had submitted an application to be a judge at the superior court in Washington DC that was currently pending, the letter said.
The allegation, in essence, is that Bratt suggested Woodward’s judicial application might be considered more favorably if he and his client cooperated against Trump. The letter was filed after Trump’s lawyers submitted a motion on Monday seeking grand jury transcripts, because of what they viewed as potential misconduct.
Significantly, that story changed on June 5, the same day as Trump’s lawyers, at least two of whom have subsequently left the team, met with Jack Smith.
When Nauta wasn’t going to get charged, Jay Bratt’s decision to play hardball was stupid, a mistake. A missed opportunity to get cooperation. When he was going to get charged, Bratt’s efforts to help Nauta avoid 20 or 330 year legal exposure became an ethical issue.
When Smith noted the integrity of his investigative team yesterday, he was signaling that he thinks this story is bullshit.
He may not be the only one, either. Jim Trusty made a really big deal about this new story on Thursday, when he had seen the summons but not the indictment. After he saw the indictment, he quit.
Which brings me to one other detail that I can’t get out of my head, given the uncharged examples of Trump disseminating classified information at Bedminster and the two instances when classified documents went to New Jersey never to be seen again.
One other reason Jack Smith gave to unseal the indictment was so he could share it to, among other entities, “sealed entities” and the grand jury in DC.
To the United States District Court of the District of Columbia, under seal, in relation to grand jury and sealed matters in that jurisdiction.
Among those sealed entities are the complaint that Woodward belatedly filed, after learning that Nauta got a target letter. Jack Smith needs to show Chief Judge James Boasberg that when Bratt strongly encouraged Woodward to advise his client to cooperate last November, DOJ already had really damning information showing he conspired to hoard these documents.
But the sealed entities aren’t the only entity that needs to see this indictment. So does a grand jury.
The investigation didn’t move, entirely, to Florida. Part of it was presented to a grand jury in Florida. But there are other parts that remain in DC, and those parts that remain in DC had to be told this indictment was coming.
This indictment is, in very significant part, a renewed invitation to Walt Nauta to cooperate in an ongoing grand jury investigation into what happens to documents when they go to Bedminster and disappear forever.
A very persuasive invitation.
Update: Fixed Stan Woodward’s last name.
Update: NYT has now done a piece covering these issues. They do not mention that just weeks ago, they were telling another story about this, fail to note that Trump routinely claims to believe things that he clearly does not, and treats the allegation itself as a set of “facts” that Trump got wrong, rather than an allegation only belatedly made months after the incident.
Around the same time, according to two people familiar with the matter, Mr. Woodward had a meeting about Mr. Nauta with prosecutors in the documents investigation, including Jay Bratt, from the Justice Department’s national security division, who was running the inquiry at the time.
During the meeting, the people said, Mr. Bratt tried to persuade Mr. Woodward to get Mr. Nauta to cooperate and then brought up the fact that he knew Mr. Woodward had a pending application to be a judge in the superior court in Washington. Mr. Trump’s lawyers and advisers believe that Mr. Bratt was effectively trying to cajole, even threaten, Mr. Woodward to counsel his client to help the government — an allegation that Mr. Trump later made himself on social media, albeit with his facts slightly wrong.
Trump’s own press secretary couldn’t have written a more favorable spin.
Update: I forgot I promised to go back and try to figure out how many boxes went to Bedminster to disappear forever. We can’t know because the universe of boxes was in flux throughout this process. But here’s what we do know:
https://www.emptywheel.net/wp-content/uploads/2023/06/Screenshot-2023-06-10-at-08.02.55.png692600emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-06-10 05:16:492023-06-11 06:41:57The Mar-a-Lago Indictment Is a Tactical Nuke
One of the most important paragraphs to demonstrate Nauta’s knowledge was that on January 15, Nauta texted the person who was helping him with these documents, saying: