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The First Time Trump “Colluded” with Russia Was To Help Bibi Netanyahu

The first time Donald Trump worked via back channel with Russia to undermine Barack Obama’s foreign policy, it was to help Bibi Netanyahu dodge repercussions for illegal settlements in the West Bank.

And yet that effort — and the way that Jared Kushner mobilized a group of countries to undermine the sitting President’s foreign policy decision — has gone unmentioned in recent months, even as Bibi blows off Joe Biden’s requests for moderation in advance of the November election, even as Vladimir Putin holds overt meetings with Hamas, even as Kushner — effectively an employee of Mohammed bin Salman at this point — meets with Qatar and tours Kfar Aza.

The Mueller Report actually soft-pedaled what happened in December 2016.

On December 21, 2016, Egypt submitted a resolution to the United Nations Security Council calling on Israel to cease settlement activities in Palestinian territory.1208 The Security Council, which includes Russia, was scheduled to vote on the resolution the following day.1209 There was speculation in the media that the Obama Administration would not oppose the resolution.1210

According to Flynn, the Transition Team regarded the vote as a significant issue and wanted to support Israel by opposing the resolution.1211 On December 22, 2016, multiple members of the Transition Team, as well as President-Elect Trump, communicated with foreign government officials to determine their views on the resolution and to rally support to delay the vote or defeat the resolution.1212 Kushner led the effort for the Transition Team; Flynn was responsible for the Russian government.1213 Minutes after an early morning phone call with Kushner on December 22, Flynn called Kislyak.1214 According to Flynn, he informed Kislyak about the vote and the Transition Team’s opposition to the resolution, and requested that Russia vote against or delay the resolution.1215 Later that day, President-Elect Trump spoke with Egyptian President Abdel Fattah al-Sisi about the vote.1216 Ultimately, Egypt postponed the vote.1217

On December 23, 2016, Malaysia, New Zealand, Senegal, and Venezuela resubmitted the resolution.1218 Throughout the day, members of the Transition Team continued to talk with foreign leaders about the resolution, with Flynn continuing to lead the outreach with the Russian government through Kislyak.1219 When Flynn again spoke with Kislyak, Kislyak informed Flynn that if the resolution came to a vote, Russia would not vote against it.1220 The resolution later passed 14-0, with the United States abstaining.1221 [my emphasis]

1208 Karen DeYoung, How the U.S. Came to Abstain on a U.N. Resolution Condemning Israeli Settlements, Washington Post (Dec. 28, 2016).

1209 Karen DeYoung, How the U.S. Came to Abstain on a U.N. Resolution Condemning Israeli Settlements, Washington Post (Dec. 28, 2016).

1210 Michelle Nichols & Lesley Wroughton, U.S. Intended to Allow Passage of U.N. Draft Critical of Israel, Reuters (Dec. 21, 2016).

1211 Flynn 11/16/17 302, at 12; Flynn 11/17/17 302, at 2.

1212 Flynn 11/16/17 302, at 12-14; Flynn 11/17/17 302, at 2.

1213 Flynn 11/16/17 302, at 12-14; Flynn 11/17/17 302, at 2; Kushner 11/1/17 302, at 3; 12/22/16 Email, Kushner to Flynn; 12/22/16 Email, McFarland to et al.

1214 Flynn 11/16/17 302, at 13; Call Records of Michael T. Flynn

1215 Statement of Offense ¶ 3(d), United States v. Michael T. Flynn, No. 1:17-cr-232 (D.D.C. Dec. 1, 2017), Doc. 4 (“Flynn Statement of Offense”); Flynn 11/16/17 302, at 12-13.

1216 Flynn 11/17/17 302, at 2; Flynn 11/16/17 302, at 13.

1217 U.N. Vote on Israeli Settlement Postponed, “Potentially Indefinitely”, Reuters (Dec. 22, 2016).

1218 Somini Sengupta & Rick Gladstone, Rebuffing Israel, U.S. Allows Censure Over Settlements, New York Times (Dec. 23, 2016).

1219 Flynn 11/16/17 302, at 12-14; Kushner 11/1/17 302, at 3; 12/23/16 Email, Flynn to Kushner et al.

1220 Flynn Statement of Offense ¶ 3(g).

1221 Israel’s Settlements Have No Legal Validity, Constitute Flagrant Violation of International Law, Security Council Reaffirms, 7853rd Meeting (PM), United Nations Security Council (Dec. 23, 2016).

This account separates the description of the December 1, 2016 meeting including Sergey Kislyak and Flynn at which Jared suggested setting up a back channel via secure Russian channels, as well as the December 13, 2016 meeting with sanctioned banker Sergey Gorkov at Tom Barrack’s office, a meeting Jared claimed was diplomatic but Gorkov claimed pertained to business.

The Report doesn’t reveal which Senator’s office alerted Flynn to the risk that Obama would allow Israel be sanctioned.

The Report doesn’t describe all the calls that took place on December 22. In a warrant affidavit targeting Flynn, multiple calls are described as taking place on Flynn’s phone — suggesting the possibility that Trump used Flynn’s phone to call al-Sisi. McFarland later noted that Flynn, “worked it all day with trump from Mara lago.”

The Report did not mention that Jared asked toand did — release a false report claiming that Egypt had initiated this effort.

Can we make it clear that Al Sisi reached out to DJT so it doesn’t look like we reached out to intercede? This happens to be the true fact patter and better for this to be out there.

Because it remained under investigation, the Report doesn’t mention the suspected $10 million payment an Egyptian bank had given Trump in September 2016, important background to Trump’s call to al-Sisi.

It doesn’t describe that KT McFarland had likened the effort to undercut Obama’s foreign policy to Richard Nixon’s effort to forestall peace in Vietnam and Ronald Reagan’s effort to delay the release of hostages from Iran.

Based on her study of prior presidential transitions, McFarland believed the sorts of things Flynn did were not unusual. She cited Richard Nixon’s involvement in Vietnam War peace talks and Ronald Reagan’s purported dealings with Iran to free American hostages during an incoming administration. Most incoming administrations did similar things. No “red light” or “alarm bells” went off in her head when she heard what Flynn was doing. The President-elect made his support for Israel very clear during the campaign and contrasted his position with President Obama, who he believed had not treated Israel fairly.

And Mueller — likely working under the normally safe assumption that the call intercepts with Sergey Kislyak would never be released — left out several damning details revealed when John Ratcliffe did release the transcripts in May 2020.

First, Mueller implies that Egypt, by itself, decided to delay the vote, but on their second call, Sergey Kislyak told Flynn that they would push for a delay too.

Kislyak: Uh, I just wanted as a follow up to share with you several points. One, that, uh, your previous, uh, uh, telephone call, I reported to Moscow and it was considered at the highest level in Russia. Secondly, uh, uh, here we are pointing [PH], uh, taking into account, uh, entirely your, uh, arguments.

Flynn: Yes.

Kislyak: To raise a proposal or an idea of continued consultations in New York. We will do it.

Flynn: Okay.

Kislyak: Uh, to give time for working out something, uh, that would be, would be, uh, less controversial.

Flynn: Okay. That. .. That’s good news.

[snip]

Kislyak: But, uh, responding to your, uh, telephone call and our conversations, we will try to help, uh, to~ uh~ postpone the vote and to allow for consultations.

Flynn: Okay. That’s .. that’s good.

In Kislyak’s call with Flynn (in which he had to cut off the blubbering General to make his carefully scripted points), he made it clear that he had discussed the topic with “the highest level in Russia,” which can only mean Putin.

When Flynn called Kislyak back on December 29, the Russian Ambassador told him that they were not going to support Obama’s other framework for the Middle East at the time.

KISLYAK: Oh, General, thank you very much for calling me back. I was trying to reach you for quite a while because I have several, uh, issues to raise with you —

FLYNN: Uh huh.

KISLYAK: – rather to inform you. If you’ll allow me, one by one.

FLYNN: Please.

KISLYAK: One, uh, since you were interested in the issue of the Middle East and you called me on that issue

FLYNN: Uh huh.

KISLYAK: We wanted to convey to you and through you to the President Elect that we had uh significant reservations about the idea of adopting now the principles for the Middle East, uh, that our American colleagues are pushing for. So we are not going to support it to — in the quartet, or in the Security Council. And we have conveyed to our American colleagues. So in the spirit of full transparency I was asked to inform you as well.

FLYNN: Okay.

KfSLYAK: So it’s not something that we – Russia – are going to support.

FLYNN: Okay that’s good.

Kislyak tied that, implicitly, to a demand to reverse Obama’s sanctions; he used Flynn’s discussion about cooperating on counterterrorism to note that GRU and FSB would need to be part of the cooperation.

FLYNN: We have to eliminate the common threat.

KISLYAK: We agree. One fo the problems among the measures that have been announced today is that now FSB and GRU are sanctions, are sanctioned, and I ask myself, uh, does it mean that the United States isn’t willing to work on terrorist threats?

FLYNN: Yeah, yeah.

KISLYAK: Because that’s the people who are exactly, uh, fighting the terrorists.

Most importantly, a point utterly inconsistent with the conclusion in the Mueller Report that it was never clear if Trump knew of this back channel, on their December 31 call, Flynn told Kislyak that “boss is aware” of an invite that Kislyak had extended.

Remember that a pro-Trump FBI agent was pushing the conclusion that all this was a big misunderstanding, a conclusion that largely held the day.

And that’s just what is included. Ratcliffe didn’t release the December 22 transcript, the one that started this discussion.

Flynn was in Mar-a-Lago on December 22 — and the December 29 transcript suggests that Flynn may have been on speaker phone (he made the call from his hotel phone, and so could have had his own phone connected back to MAL). So it’s not impossible that Trump was actually involved in the calls placed on December 22. As bolded above, in the Report, Mueller didn’t describe what he knew from the transcripts; instead, he attributed his version of the December 22 calls to Flynn.

At a time when Trump was advised — at least partly — by adults, he didn’t hesitate to intervene back channel to undercut his Democratic predecessor in order to help Bibi Netanyahu. Per KT McFarland, it was all in the tradition of Nixon and Reagan intervening in foreign policy to help win an election.

This post is part of a Ball of Thread I’m putting together before I attempt to explain how Trump trained Republicans to hate rule of law. See this post for an explanation of my Ball of Thread.

James Comer Subpoenas Dick Picks While Rome Burns

As long expected, yesterday Jamie Comer subpoenaed Hunter Biden, his uncle James, and his former business partner Rob Walker; the Kentucky Congressman also sent voluntary interview requests to four more family members and Tony Bobulinksi.

By sending a voluntary interview request rather than a subpoena to Bobulinski, the Hunter accusar will be able to dodge questions about why, as Cassidy Hutchinson described, he wore a ski mask to a covert meeting with Mark Meadows in November 2020 and what the President’s Chief of Staff handed him at that meeting.

Comer even sent a request to Hunter’s current spouse, Melissa Cohen, rationalizing doing so — after having shut down an investigation into why the Saudis gave Jared Kushner $2 billion to invest — this way:

Evidence also shows that President Biden was at least aware of some of his family’s business ventures and sought to influence potential business deals that financially benefited his family. Indeed, a Biden business associate, Devon Archer, testified how the Biden “brand” was used in retaining business, and that Joe Biden met with some of the foreign nationals who paid his family. 5 The Committees have identified you as possessing information relevant to their investigation and seek your testimony regarding these and other related topics. This request is made pursuant to that inquiry.

In particular, the Committees have identified over $20 million in payments to Biden family members and their associates, the majority of which is attributable to Biden family members. 6 The Committees believe you have received proceeds derived from a foreign source in which the Biden family has held a substantial financial interest. This source is concerning to the Committees because of its significant ties to a foreign government. The Committees seek to understand the extent of the Biden family’s involvement in transferring money to each other, and therefore seek clarity regarding your role in the movement of money originating from certain foreign sources.

As part of their investigation, the Committees also seek to craft legislative solutions aimed at deficiencies they have identified in the current legal framework regarding ethics laws and the disclosure of financial interests related to the immediate family members of Vice Presidents and Presidents—deficiencies that may place American national security and interests at risk. Specifically, the Committees are concerned that foreign nationals appear to have sought access and influence by engaging in lucrative business relationships with high-profile political figures’ immediate family members.

The Committees are investigating the national security implications of a Vice President’s or President’s (and candidates for such offices) immediate family members receiving millions of dollars from foreign nationals, foreign companies, or foreign governments without any oversight. Current financial disclosure laws and regulations do not require non-dependent family members of senior elected officials to provide any information to the public. The Committees are seeking meaningful reforms to government ethics and disclosure laws that will provide necessary transparency into a Vice President’s or President’s immediate family members’ income, assets, and financial relationships.

Cohen didn’t even meet Hunter until May 2019, over two years after Biden left the Obama White House. Meanwhile, the degree to which Trump and his family have committed fraud using their family brand is literally on trial in New York as we speak.

To say nothing of Comer himself. The Daily Beast describes that not only has Comer serially swapped land with his brother, but has done so while directly overseeing the industry.

According to Kentucky property records, Comer and his own brother have engaged in land swaps related to their family farming business. In one deal—also involving $200,000, as well as a shell company—the more powerful and influential Comer channeled extra money to his brother, seemingly from nothing. Other recent land swaps were quickly followed with new applications for special tax breaks, state records show. All of this, perplexingly, related to the dealings of a family company that appears to have never existed on paper.

In other words, not only has Comer not found anything against the Bidens. He is using his charade against the Bidens to hide his own corruption and that of the Trump’s.

And meanwhile, as Comer continues to waste taxpayer dollars subpoenaing dick pics, Republicans still can’t fund government.

Republicans continue to fail to do their most basic job. And they continue to fail even as they harass Joe Biden’s family for supporting other family members.

“Piker:” Donald Trump Rants as if Robert Menendez’s 22 Ounces of Gold Were as Big as Jared’s $2 Billion

The former President went on one of his classic rants of projection last night, demanding that every Democratic Senator resign because of the alleged corruption of Robert Menendez.

“They all knew what was going on,” Trump said, “and the way [Menendez] lived.”

All Trump’s rants are, at their core, at least partly an attempt to use projection to cast attention away from his own similar or worse corruption.

This one is a doozy, though.

Start with the fact that Trump was suspected of getting $10 million from Egypt in September 2016, money he used to stay in the Presidential race. That suspected bribe was investigated for several years, with the Egyptian state-owned bank suspected of making the payment fighting a subpoena all the way to the Supreme Court. The investigation was then closed in summer 2020, without ever subpoenaing Trump Organization, during a period when Bill Barr was shutting down all Mueller-related investigations of Trump. The allegation that, like Menendez, Trump was on the take from Egypt — a key prong of the Mueller investigation — has been ignored by most outlets, so I may return to describe what we know of it.

Then consider that Trump told a comedian posing as Menendez, John Melenedez, that he believed Menendez had gotten a raw deal in his corruption prosecution. “Congratulations on everything,” Trump told the guy he thought was Menendez not long after DOJ dropped the first bribery prosecution. “We’re proud of you. Congratulations! Great job! You went through a tough, tough situation, and I don’t think a very fair situation. But congratulations!”

“They all knew what was going on, and the way [Menendez] lived,” Trump wailed. But so did Trump when he congratulated someone he thought was Menendez for getting away with accepting alleged bribes.

In fact, Trump even commuted the separate Medicare fraud sentence of Menendez’ first co-defendant, Salomon Melgen (like Menendez, the jury hung on bribery charges against Melgen). When Trump claims that Senate Democrats knew what was going on? Unlike Senate Democrats, Trump reviewed Melgen’s conduct closely enough to save him from most of a 204-month prison sentence. Trump specifically said that “the ends of justice do not require [Melgen] to remain confined until his currently projected release date of August 2, 2031.” There’s no question Trump doesn’t care about Menendez’ corruption because he used his presidential authority to eliminate most punishment against Menendez’ co-defendant.

Finally, the craziest part of Trump’s attempt to project his own corruption on Democrats: a key allegation in the Menendez indictment alleges that Menendez did exactly what Jared Kushner did, only for a tiny fraction of the payoff that Jared got.

As I noted in this post, most of Menendez’ Egypt-related corruption came before he and Nadine were married, and most of the payment was laundered through Wael Hana’s halal company, at which Nadine had a no-work job. That may make it hard to prove was a quid pro quo.

There’s one glaring exception to that: The 22 one-ounce bars of gold that, the indictment suggests, Menendez and Nadine received days after Menendez helped shield Egypt from repercussions tied to their role in the Jamal Khashoggi execution.

As the indictment explains, after Nadine’s relationship with Egyptian Official-4 had blossomed over time, the two of them set up a meeting between Menendez and a senior Egyptian intelligence official on June 21, 2021, before the same official would meet with other Senators.

On or about June 21, 2021, NADINE MENENDEZ and Egyptian Official-4 organized a private meeting between MENENDEZ and a senior Egyptian intelligence official (“Egyptian Official-5”) in a hotel in Washington, D.C. prior to a meeting between Egyptian Official-5 and other U.S. Senators the next day. On the day of the private meeting, MENENDEZ provided NADINE MENENDEZ with a copy of a news article reporting on questions that other U.S. Senators intended to ask Egyptian Official-5 regarding a human rights issue. NADINE MENENDEZ then sent that article to Egyptian Official-4, who responded, “Thanks you so much, chairman [i.e., MENENDEZ, the Chairman of the SFRC] also raised it today, we appreciate it.” The next day, NADINE MENENDEZ texted Egyptian Official-4 that she hoped the article she had sent was helpful, and stated, “I just thought it would be better to know ahead of time what is being talked about and this way you can prepare your rebuttals.”

A Michael Isiskoff story posted the same day explained what Egypt would need to “rebut:” Egypt’s Intelligence head, Abbas Kamel, was set to be grilled about Egypt’s role — providing training and drugs — in the execution of Jamal Khashoggi.

A just-released Yahoo News “Conspiracyland” podcast series about Khashoggi’s murder [] revealed that the Gulfstream jet carrying a so-called Tiger Team of Saudi assassins to Istanbul made a middle-of-the-night stopover in Cairo for the purpose of picking up a lethal dose of undetermined “illegal” narcotics.

The drugs were injected hours later by a Saudi Ministry of Interior doctor into Khashoggi’s left arm inside the Saudi Consulate in Istanbul — an operation that the CIA has concluded was authorized by Saudi Crown Prince Mohammed bin Salman, often known as MBS.

Abbas Kamel, the chief of Egyptian intelligence, is visiting Washington this week to meet with U.S. intelligence officials as well as members of the Senate Foreign Relations Committee. Staffers told Yahoo News that a number of senators are preparing to ask Kamel about the Cairo stopover — the subject of a Washington Post editorial on Sunday — and whether Egyptian intelligence officials delivered or helped facilitate the delivery of the drugs.

[snip]

There is also evidence that Egyptian intelligence may have provided training for the Tiger Team as well as previous support for Saudi abductions ordered by MBS. A Saudi source familiar with the matter told Yahoo News that the Egyptians assisted the Tiger Team with the 2015 abduction from Italy of Saudi Prince Saud bin Saif al-Nasr. An outspoken foe of MBS, the prince was tricked into boarding a plane he thought was flying to Rome but ended up in Riyadh. He has not been heard from since.

The indictment implies that whatever Menendez did to blunt the accusations of his fellow Senators, it had some tie to the 22 ounces of gold that Hana purchased two days later, at least some bars of which were found at the Menendez residence when it was searched a year later.

On or about June 23, 2021—i.e., two days after the private meeting between MENENDEZ and Egyptian Official-5—HANA purchased 22 one-ounce gold bars, each with a unique serial number. Two of these one-ounce gold bars were subsequently found during the court-authorized search in June 2022 of the residence of MENENDEZ and NADINE MENENDEZ. During the relevant time periods, the spot market price of gold was approximately $1,800 per ounce.

In his rant, Trump accused Menendez of being “piker” compared to others, but he got the comparison wrong.

After all, Menendez sold out cheap. If he received all 22 of those gold bars in 2021 in recognition of having laundered the reputation of Egypt, it would have been worth roughly $40,000.

That’s a miniscule amount compared to what Jared got — $2 billion — for whitewashing Saudi’s role in the Khashoggi execution.

Trump, who knows better than Senate Democrats what was going on, is right: Menendez was a piker. But he was a piker when you measure him against the corruption of Trump’s own son-in-law.

Maggie and Mike Back Together Again, This Time on, or with, January 6 Corrupt Purpose

Yesterday, the NYT broke the news that Jared Kushner testified before Jack Smith’s grand jury last month and told them — in testimony that conflicts with other witness testimony — that his father-in-law really did believe he had won the election.

Federal prosecutors investigating former President Donald J. Trump’s attempts to overturn the 2020 election have questioned multiple witnesses in recent weeks — including Mr. Trump’s son-in-law, Jared Kushner — about whether Mr. Trump had privately acknowledged in the days after the 2020 election that he had lost, according to four people briefed on the matter.

The line of questioning suggests prosecutors are trying to establish whether Mr. Trump was acting with corrupt intent as he sought to remain in power — essentially that his efforts were knowingly based on a lie — evidence that could substantially bolster any case they might decide to bring against him.

Mr. Kushner testified before a grand jury at the federal courthouse in Washington last month, where he is said to have maintained that it was his impression that Mr. Trump truly believed the election was stolen, according to a person briefed on the matter.

The scoop, which brings the old team of Maggie and Mike back together again, is fine. Whoohoo! Another top witness.

Just as interesting that Jared has testified is the news — buried in paragraph 31 — that Ivanka has not yet testified before the grand jury, though there’s a good deal of wiggle room about whether she has complied with a document subpoena or whether she has spoken with prosecutors outside of a grand jury.

The New York Times reported in February that Mr. Smith’s office had subpoenaed Mr. Kushner and his wife, Ivanka Trump, to testify before the grand jury. The special counsel’s office has yet to question her before the grand jury. Ms. Trump testified before the House committee last year.

Maggie and Mike, always solicitous of Ivanka and her family, mention Ivanka’s testimony to the January 6 Committee, but they neglect to mention that after Ivanka testified to the January 6 Committee, the committee specifically called her out for her lack of candor, effectively inviting DOJ to consider false statements charges for her. So it may not be a good sign for Ivanka that she hasn’t been called before the grand jury.

That’s an interesting detail, but given that this is Maggie and Mike, I’m as interested in what appears between the Jared news and the Ivanka news: Maggie and Mike’s explanation for why (they claim) this matters. They explain that asking whether Trump knew he lost is important to ascertaining whether he had a “corrupt purpose” in obstructing the vote certification. Based on that premise, Maggie and Mike raise doubts about whether Jack Smith will be able to charge this, because without that, they suggest, Smith will lack one key element of the obstruction statute.

Maggie and Mike don’t mention that dozens — probably over a hundred — people have been convicted under 18 USC 1512(c)(2) for their actions on January 6 already; by DOJ’s most recent count, 310 people have been charged with it. Many if not most of them tried to argue at some point that their crimes were cool because they really did believe Donald Trump’s lies.

To be fair to poor Maggie and Mike, who after all are mere journalists, the conceit that Trump might dodge obstruction charges because he believed his own hype is one that has long been parroted by TV lawyers, and Maggie and Mike do cite several lawyers talking about how having proof that Trump knew he lost would strengthen the case.

But we have two years of public record showing that’s not how it works.

What VIP obstruction looks like: Alan Hostetter

Here’s what a guilty verdict for obstructing January 6 looks like in reality, taken from findings that Reagan-appointed Judge Royce Lamberth wrote up to support his guilty verdict yesterday for Alan Hostetter, a southern California anti-mask activist who played a key role in organizing others from southern California to come to DC on January 6.

In December 2021, I wrote about the challenges and import of prosecuting people like Hostetter — I called him and similar figures organizer-inciters — for obstruction, in part because it’s a test of whether DOJ will be able to hold even more senior people accountable for inciting others to commit violence.

Like Trump, Hostetter is a VIP who didn’t enter the Capitol, but who spent the weeks leading up to January 6 riling up others to obstruct the vote certification. As such, he’s a really good read on how obstruction might apply to Trump.

Every time Lamberth presides over a bench trial, he writes up and dockets his findings. I could hug him for doing so, because they provide a really superb way to understand how a very senior judge who has been presiding over these cases for over two years views them. Journalists and TV lawyers who, unlike Lamberth, haven’t been living and breathing January 6 for two years could learn a lot from reading every one of his findings reports, or at least this one.

Lamberth pointed to the following evidence to support his guilty verdict that Hostetter had obstructed the vote certification:

After arriving at the West Plaza, Mr. Hostetter advanced underneath the inauguration stage scaffolding and up a set of stairs leading to the inauguration stage. While on the stairs, Mr. Hostetter used a bullhorn to cheer on the crowd below as it violently fought against police and attempted to break the lines. Meanwhile, on a landing at the top of the stairs, several officers formed a line to prevent a group of rioters from reaching the inauguration stage. Mr. Hostetter’s co-conspirator, Mr. Taylor, joined the group of rioters and began pushing against the officers who were blocking access to the stage.

[snip]

Mr. Hostetter’s actions obstructed and impeded the proceeding by, together with the actions of others, forcing the evacuation of Congress and the end of the certification session, as shown in the testimony of Inspector Hawa and Mr. Schwager. By joining the riot, exhorting the crowd, standing with a vanguard of rioters making a highly-visible and violent effort to access the inauguration stage, and remaining on the Upper West Terrace for two hours while police attempted to clear out rioters, Mr. Hostetter helped ensure that Congress was under a sufficient security threat requiring adjournment and then an inability to resume the official proceeding that their actions helped to disrupt.

It’s not just that Hostetter’s own physical premise obstructed the vote certification, his exhortations to other, more violent people, did too.

Lamberth specifically noted that Hostetter’s purpose was to obstruct an election result he viewed as fraudulent.

Among other evidence … Mr. Hostetter’s own testimony[] demonstrate[s] that Mr. Hostetter understood his purpose on that day to be stopping an election result that he viewed as fraudulent by obstructing or impeding the Electoral College Certification.

Lamberth cited multiple exhibits and testimony showing that Hostetter knew the significance of the Electoral Certification. Notably, he describes how Hostetter listened to Trump explaining what he wanted, and then took action.

Mr. Hostetter testified that he had been closely following the efforts to overturn the 2020 Presidential Election and news about what was happening with the Electoral College Certification. Additionally, Mr. Hostetter testified that he listened to speeches at the Ellipse given by Rudy Giuliani and President Trump, was engaged by them, and remembers President Trump talking about Vice President Pence. During President Trump’s speech, President Trump made statements concerning what he wanted to happen with the certification and Vice President Pence’s role in the certification, which Mr. Hostetter heard.

Lamberth substantiated Hostetter’s corrupt purpose — what Maggie and Mike claim requires proof of knowledge that Trump lost — by pointing to the former cop’s consciousness of wrong-doing by walking, armed with a hatchet, onto Capitol grounds, what Dabney Friedrich adopted as “otherwise illegal means” standard to meet the statute’s corrupt purpose requirement.

Mr. Hostetter had the necessary mental state to meet the “corruptly” requirement. First, by himself carrying an inherently dangerous weapon into the restricted grounds of the Capitol, Mr. Hostetter used an unlawful means, specifically the independently felonious means of entering and remaining in a restricted building with a deadly or dangerous weapon.

Lamberth also pointed to Hostetter’s own incitement of others as evidence of corrupt purpose.

Additionally, Mr. Hostetter sent numerous messages and made speeches before and immediately after January 6 effectively calling for revolution. He also recorded videos in which he called for executions of public officials in connection with the 2020 Presidential Election.

Importantly, Lamberth specifically addresses, and dismisses the import of, Hostetter’s claims that he believed he was doing something good.

I also find that even if Mr. Hostetter genuinely believed the election was stolen and that public officials had committed treason, that does not change the fact that he acted corruptly with consciousness of wrongdoing. Belief that your actions are ultimately serving a greater good does not negate consciousness of wrongdoing.

[snip]

[T]he point isn’t that the defendant needs to understand what he’s doing is morally wrong; it’s that he needs to understand that what he’s doing is unlawful. Even if Mr. Hostetter sincerely believed–which it appears he did–that the election was fraudulent, that President Trump was the rightful winner, and that public officials committed treason, as a former police chief, he still must have known it was unlawful to vindicate that perceived injustice by engaging in mob violence to obstruct Congress.

And Lamberth addresses the mid-point of the appellate debate at the DC Circuit on corrupt purpose in the Fischer decision — requiring an unlawful benefit to find corrupt purpose.

I find that Mr. Hostetter took these actions in order to provide an unlawful benefit to his preferred presidential candidate, President Trump–by disrupting the Electoral College Certification that would have led to President Trump’s loss of the presidency.

Requiring finding an unlawful benefit is not, yet, the standard for obstruction in the DC Circuit. A separate panel considered the standard for corrupt purpose in Thomas Robertson’s appeal on May 11. But it is likely to be the most conservative standard that the DC Circuit (and even SCOTUS) would adopt, so Lamberth is protecting this verdict in advance of further rulings from the Circuit.

In any case, as I’ve noted over and over, even if that were the standard, it would apply to Trump if he were charged far more easily than any of the 300-plus people who’ve already been charged with obstruction for January 6. For Trump, whether he believes he won or not is not only unnecessary, but because he was trying to steal the election, it’s easier to prove corrupt purpose under this standard for him than for anyone else.

This is what applying the obstruction statute to January 6 looks like in real life. One after another judge has, like Lamberth, explained why it doesn’t matter whether someone believed that Trump won.

It doesn’t matter. Maggie and Mike built an entire story around a standard that two years of directly applicable precedents — precedents that will dictate terms of the elements of offense if Trump ever is charged under 18 USC 1512(c)(2) — show doesn’t matter.

Whether Trump believes he won doesn’t matter for 18 USC 1512(c)(2).

Jared Kushner’s central role in monetizing the lies

Whether Trump knew he won doesn’t matter for 18 USC 1512(c)(2).

It does matter — a lot — for any campaign finance charges arising out of January 6, and in that, it could have an indirect impact on Jack Smith’s charging decisions.

And, in part because Jared made himself scarce for January 6 itself, that’s actually the area where the former President’s son-in-law has more personal exposure than on the conspiracy to obstruct the vote certification.

This is a point MSNBC’s Lisa Rubin made at length in response to this news yesterday (and her coverage of this is so good I hereby create a special category of people who happen to be lawyers but even in spite of that provide superb TV analysis based on the actual facts).

Here’s how J6C addressed it.

Several days earlier, Trump Campaign Senior Advisor Jason Miller had explained the intention for this round of advertisements in an email. He wrote that, “the President and Mayor Giuliani want to get back up on TVASAP, and Jared [Kushner] has approved in budgetary concept, so here’s the gameplan” in order to “motivate the GOP base to put pressure on the Republican Governors of Georgia and Arizona and the Republican controlled State legislatures in Wisconsin and Michigan to hear evidence of voter fraud before January 6th.”317 Miller anticipated a budget of $5 million and asked for the messaging to follow an earlier round of advertisements, “but the endings need to be changed to include phone numbers and directions to call the local Governor or state legislature.”318 On December 22nd, Jason Miller texted Jared Kushner that “POTUS has approved the buy.”319

[snip]

Trump Campaign leadership was fully aware of post-election fundraising totals. According to Coby, President Trump’s son-in-law and senior advisor Jared Kushner “had the most interest in the digital program” and “would just check in on [fundraising] results,” and routinely received updates regarding fundraising from Coby.70 Coby also made clear that Kushner was heavily involved in the Campaign’s budget process71 and that he updated Kushner on TMAGAC’s post-election fundraising totals.72

The Select Committee received documents confirming Kushner’s involvement. For example, on November 8, 2020, Kushner requested that a daily tracker be created showing the Trump Campaign’s financial position from election day forward.73 In an email, Kushner noted that the tracker would allow the Campaign to consider its cash flow ahead of the creation of “a new entity for POTUS[’s] other political activities.”74 Just days after the election, and after the Campaign had three of its four best fundraising days ever on November 4th, 5th, and 6th,75 Kushner was preparing for the launch of President Trump’s new leadership PAC, Save America. Kushner stated that he needed this new daily tracker because the Trump Campaign was going to continue fundraising post-election.76 Kushner continued to receive these detailed daily trackers, which included Save America’s fundraising hauls, through at least December 2020.77

Jared Kushner isn’t much use as a witness about Trump’s actions and intent on January 6 itself.

He’s a central witness to the decision to monetize Trump’s lies by sowing violence — and even, to then use that money for purposes other than addressing election integrity. That’s why his grand jury testimony last month is of interest.

And his claim that Trump really believed he won may not help Trump; it may hurt Jared. But then, Jared has a very direct interest in claiming that all this fundraising based off lies were based on a good faith belief Trump had won.

Campaign finance fraud is an otherwise illegal action

I’m not promising here that Trump will be charged with obstruction — though, as noted, I long ago pointed to people like Hostetter as early tests of whether he could be, and his conviction yesterday shows how that might work.

I’m saying that people who came late to the understanding that DOJ is using obstruction to prosecute January 6 — which I first mapped out 23 months ago — seem little interest in the two years of precedent about how it will be applied. I include, for special notice, this “model prosecution memo” from JustSecurity — which doesn’t even mention the Justin Walker concurrence in Fischer (which Lamberth addressed in his findings), much less the pending Robertson decision in the DC Circuit that will dictate this application for Thomas Robertson, for Alan Hostetter, and for Donald Trump — in that category.

Trump’s knowledge of his loss matters far more for his decisions about fundraising than it does for obstruction charges. But they may influence any obstruction charges, because campaign finance violations — Trump’s fundraising through the moment he sicced his mob on the Capitol — would be one way DOJ could prove otherwise illegal conduct to meet that corrupt purpose standard under 18 USC 1512(c)(2) if that’s what the DC Circuit adopts in Robertson.

Plus, profiting off false claims of being robbed is another way that Trump personally benefitted from the incitement, even ignoring his bid to stay in power.

Update: This post on Maggie’s curious foray into campaign finance journalism notes that shortly after that misleading story, she and Mike broke the news of the Jared and Ivanka subpoena, which Maggie and Mike claimed was about calling off dad’s attack.

After I started unpacking Maggie’s story, I got distracted with the possibility that DOJ will tie Trump and Rudy Giuliani and John Eastman directly to the almost-murder of Michael Fanone. So, in the interim, Maggie broke the news that Smith’s prosecutors had subpoenaed Jared and Ivanka.

That story, written with Mike Schmidt, is exceptional only for the fact that they managed to avoid most of the hype about “aggressive steps” that peppers most reporting on Jack Smith. It pointed to things like the morning Oval Office meeting (Ivanka’s response to which her Chief of Staff Julie Radford was likely already questioned about, since — as the J6C Report noted explicitly — Radford was far more candid about it than Ivanka) and efforts to get Trump to call off his mob as likely topics of questioning.

Smith no doubt wants to get Jared and Ivanka’s stories about such topics locked in. Given questions about their candor before J6C, too, Smith will likely also give them an opportunity to revise their prior answers so they more closely match known facts.

Back to Maggie’s solo endeavor to read FEC filings.

[snip]

As it happens, all this ties back to Maggie’s newest story breaking the news of a subpoena to Ivanka and Jared. I’m sure Jack Smith wants to ask Ivanka and Jared about their efforts to get dad to call off his mob.

But he may also want to know why Herschmann — a lawyer whose legal status in the White House remains entirely unexplained — why Herschmann, according to Pat Cipollone’s testimony, told the White House Counsel not to join in that Oval Office meeting where Trump ordered Pence to break the law because “this is family.”

“This is family,” Cipollone said Herschmann told him before he walked in the door. “You don’t need to be here.”

I would imagine that Jack Smith wants to know why, at that moment when Trump prepared to give his Vice President an illegal order, Herschmann was treated as family.

 

BREAKING from Fox News: Trump Cheated … and He Still Couldn’t Beat Joe Biden

Rupert Murdoch, in a sworn deposition as part of Dominion’s lawsuit against Fox, confessed that he helped Donald Trump cheat during the 2020 election. He provided Jared Kushner confidential information about Joe Biden’s ads, the kind of information that Trump had to rely on Russian spies to obtain from Hillary in 2016.

During Trump’s campaign, Rupert provided Trump’s son-in-law and senior advisor,Jared Kushner, with Fox confidential information about Biden’s ads, along with debate strategy. Ex.600, R.Murdoch 210:6-9; 213:17-20; Ex.603 (providing Kushner a preview of Biden’s ads before they were public).

On January 5, Rupert and Suzanne Scott talked about having their top opinion shows, in concert, admit the truth: The election is over. Joe Biden won. The claim that the election was stolen was nothing but a Trump myth.

On January 5, Rupert and Scott discussed whether Hannity, Carlson, and Ingraham should say some version of “The election is over and Joe Biden won.” Ex.277. He hoped those words “would go a long way to stop the Trump myth that the election stolen. Id;Ex.600, R.Murdoch 258:5-14.

But Scott didn’t want to do that publicly, because she wanted to avoid pissing off viewers.

Scott told Rupert that privately they are all there but we need to be careful about using the shows and pissing off the viewers . Ex.277. So nobody made a statement.

The next day, her pissed off viewers attacked the Capitol.

And all the while, while Fox News assisted Trump’s efforts to weaponize a mass of angry Fox and InfoWars viewers, Rupert Murdoch knew that he had — personally! — helped Trump cheat and it still wasn’t enough for Trump to beat Joe Biden.

Again, I highly encourage you to take the time to read this. It’s another devastating indictment of the propaganda network run by Rupert.

Because, ultimately, when Rupert is forced to answer questions under oath, it becomes clear the extent to which Fox was covering up what a loser (Rupert knows that) Trump is.

Maggie Haberman’s Foray into Campaign Finance Journalism

I started unpacking this Maggie Haberman story yesterday morning.

It was an unusual story. Love or hate Maggie, she’s a really hard working journalist. But her forté is working phones, not documents.

Nevertheless, Maggie set out alone, without the involvement of an expert on documents generally or the FEC specifically (someone like David Fahrenthold) to explain why Jack Smith’s prosecutors are subpoenaing vendors of Trump’s Save America PAC.

The Justice Department has been subpoenaing documents from vendors paid by the PAC, including law firms, in an effort to determine what they were being paid for.

It seemed to be a follow-up to this story, which, by suggesting that JP Cooney had only joined the team with Smith’s hiring, falsely implied that DOJ had only started pursuing this angle after his appointment.

Three of his first hires — J.P. Cooney, Raymond Hulser and David Harbach — were trusted colleagues during Mr. Smith’s earlier stints in the department. Thomas P. Windom, a former federal prosecutor in Maryland who had been tapped in late 2021 by Attorney General Merrick B. Garland’s aides to oversee major elements of the Jan. 6 inquiry, remains part of the leadership team, according to several people familiar with the situation.

In addition to the documents and Jan. 6 investigations, Mr. Smith appears to be pursuing an offshoot of the Jan. 6 case, examining Save America, a pro-Trump political action committee, through which Mr. Trump raised millions of dollars with his false claims of election fraud. That investigation includes looking into how and why the committee’s vendors were paid.

In December, CNN reported that Cooney had been following the money for a year by that point, and even the NYT noted overt signs of that prong in September.

That earlier story nodded towards the same thing that this Daily Beast story, the January 6 Committee Report appendix on following the money, and this Campaign Legal Center complaint (the latter, focused on the 2020 campaign) did: Trump has apparently been treating campaign fundraising like a money laundering vehicle.

Go figure.

But Maggie, writing on her own, focuses instead on prospective crimes: the possibility that continuing to pay legal bills out of money raised starting in 2020 would be a different campaign finance violation.

Some of the $16 million appears to have been for lawyers representing witnesses in investigations related to Mr. Trump’s efforts to cling to power. But the majority of it — about $10 million — went to firms directly representing Mr. Trump in a string of investigations and lawsuits, including some related to his company, the filings showed.

Back in November, CLC did a report noting that Trump was doing that more generally, not just with lawyers.

All that’s not actually why I was interested in the story, but if you want an accounting of how much PAC money Trump is spending on legal services, Daily Beast’s tally includes the money spent by the MAGA PAC as well, adding up to $29.1 million since leaving office.

After I started unpacking Maggie’s story, I got distracted with the possibility that DOJ will tie Trump and Rudy Giuliani and John Eastman directly to the almost-murder of Michael Fanone. So, in the interim, Maggie broke the news that Smith’s prosecutors had subpoenaed Jared and Ivanka.

That story, written with Mike Schmidt, is exceptional only for the fact that they managed to avoid most of the hype about “aggressive steps” that peppers most reporting on Jack Smith. It pointed to things like the morning Oval Office meeting (Ivanka’s response to which her Chief of Staff Julie Radford was likely already questioned about, since — as the J6C Report noted explicitly — Radford was far more candid about it than Ivanka) and efforts to get Trump to call off his mob as likely topics of questioning.

Smith no doubt wants to get Jared and Ivanka’s stories about such topics locked in. Given questions about their candor before J6C, too, Smith will likely also give them an opportunity to revise their prior answers so they more closely match known facts.

Back to Maggie’s solo endeavor to read FEC filings.

There are two reasons I was interested in the story. First, having looked at FEC filings, Maggie seems to have discovered that the $195,000 in services that Boris Epshteyn billed to Save America PAC last year were not for legal services, but instead strategic consulting.

Another $1.3 million went to Silverman Thompson Slutkin and White, the firm of Evan Corcoran, a lawyer who began working with Mr. Trump last spring. Mr. Corcoran was brought into Mr. Trump’s orbit by Boris Epshteyn, a strategist who has played a coordinating role with some of the lawyers in cases involving Mr. Trump, as the investigation related to the Mar-a-Lago documents was heating up. (Mr. Epshteyn’s company was paid $195,000, but for broader strategic consulting, not legal consulting specifically.)

This is an important point, but one Maggie did not highlight (nor issue corrections on past stories). For the entirety of the time that Epshteyn was quarterbacking Trump’s response to the stolen documents probe, someone in his immediate vicinity has been telling reporters that he was playing a legal function, all the while billing Trump for the same old strategic consulting his firm, Georgetown Advisory, normally provides (though the two payments the campaign made to Epshteyn after Trump formalized his candidacy, totalling $30,000, were filed under “communications and legal consulting”).

NYT has, in various stories including Maggie in the byline, described Epshteyn’s role in the stolen documents case as “an in-house counsel who helps coordinate Mr. Trump’s legal efforts,” “in-house counsel for the former president who has become one of his most trusted advisers,” and “who has played a central role in coordinating lawyers on several of the investigations involving Mr. Trump.” Another even describes that Epshteyn “act[ed] as [a] lawyer [] for the Trump campaign.” The other day, Maggie described his role instead as “broader strategic consulting.”

All the time that NYT was describing Epshteyn as playing a legal role — and NYT is in no way alone in this — he was telling the Feds he wasn’t playing a legal function, he was instead playing a strategic consulting one. Many if not most of these stories also post-date the time, in September, when the FBI seized Epshteyn’s phone, which would give him a really good reason to try to claim to be a lawyer and not a political consultant.

DOJ is more likely to take FEC’s word on this issue than claims Epshteyn made to the press after his phone seizure.

Like I said, virtually every media outlet seems to be repeating the claim that Epshteyn has been playing a legal, not political role. But there’s one Maggie story, in particular, where the question of Epshteyn’s role is central: This story, quoting Eric Herschmann calling Epshteyn (and Evan Corcoran) idiots, a habit that made Herschmann a star witness for the January 6 Committee. Herschmann’s glee about calling Sidney Powell, Jenna Ellis, John Eastman, and now Epshteyn and Corcoran idiots always distracted from sketchier aspects of Herschmann’s behavior, such as Keith Kellogg’s puzzlement about why a lawyer sat in the Oval Office while Trump ordered Mike Pence to break the law and said nothing.

Anyway, this Maggie story focusing on Epshteyn’s role not only called him an idiot, but also insinuated he was witness tampering.

To the extent anyone is regarded as a quarterback of the documents and Jan. 6-related legal teams, it is Boris Epshteyn, a former campaign adviser and a graduate of the Georgetown University law school. Some aides tried to block his calls to Mr. Trump in 2020, according to former White House officials, but Mr. Epshteyn now works as an in-house counsel to Mr. Trump and speaks with him several times a day.

Mr. Epshteyn played a key role coordinating efforts by a group of lawyers for and political allies of Mr. Trump immediately after the 2020 election to prevent Joseph R. Biden Jr. from becoming president. Because of that role, he has been asked to testify in the state investigation in Georgia into the efforts to reverse Mr. Biden’s victory there.

Mr. Epshteyn’s phone was seized by the F.B.I. last week as part of the broad federal criminal inquiry into the attempts to overturn the election results and the Jan. 6 assault on the Capitol.

[snip]

In his emails to Mr. Corcoran and Mr. Rowley, Mr. Herschmann — a prominent witness for the House select committee on Jan. 6 and what led to it — invoked Mr. Corcoran’s defense of Mr. Bannon and argued pointedly that case law about executive privilege did not reflect what Mr. Corcoran believed it did.

Mr. Herschmann made clear in the emails that absent a court order precluding a witness from answering questions on the basis of executive privilege, which he had repeatedly implored them to seek, he would be forced to testify.

“I certainly am not relying on any legal analysis from either of you or Boris who — to be clear — I think is an idiot,” Mr. Herschmann wrote in a different email. “When I questioned Boris’s legal experience to work on challenging a presidential election since he appeared to have none — challenges that resulted in multiple court failures — he boasted that he was ‘just having fun,’ while also taking selfies and posting pictures online of his escapades.”

[snip]

In language that mirrored the federal statute against witness tampering, Mr. Herschmann told Mr. Corcoran that Mr. Epshteyn, himself under subpoena in Georgia, “should not in any way be involved in trying to influence, delay or prevent my testimony.”

“He is not in a position or qualified to opine on any of these issues,” Mr. Herschmann said.

Mr. Epshteyn declined to respond to a request for comment. [my emphasis]

The story ends by reporting that Herschmann’s, “testimony was postponed.”

I’m not aware of any report that describes Herschmann has been called back to testify.

The story is dated September 16, 2022.

Two days earlier, Cassidy Hutchinson had testified to the January 6 Committee (after already beginning to cooperate with DOJ) that after she testified on May 17 that Herschmann was present for a conversation about Trump saying that “Hang Mike Pence” chants were justified, her then-lawyer Stefan Passantino seemingly contacted Herschmann who then called Hutchinson and told her, “I didn’t know that you remembered so much.”

Ms. Cheney. When Stefan said “I’ll talk to some people,” do you know who he was referring to?

Ms. Hutchinson. I didn’t ask. assume it was the same entourage of people that he had been conferring with for the past few weeks.

You know, I had also received a call from Eric Herschmann, I believe on Friday, May 20th. I believe it was Friday, May 20th. It was, because this was after the interview.

And Eric called me that evening, and I just apologized. And he was like, you know, “I didn’t know that you remembered so much, Cassidy. Mark [Meadows] really put you in bad positions. I’m really sorry that he didn’t take care of you better. You never should’ve had to testify to any of that. That’s all of our jobs. I don’t know why they didn’t ask us, they asked you instead.”

And I was just like, “Look, Eric like, it is what it is.” And he kind of talked for — it was probably a 30-minute conversation.

In the same J6C appearance two days before that Maggie story painting Ephsteyn as a witness tamperer, Hutchinson told the committee that she suspected that Passantino had spoken to Maggie about her testimony, something that, if true, would have had the effect of sharing her testimony with other witnesses without appearing to obstruct the investigation. She also described Alex Cannon to be involved in the outreach to Maggie.

The next day, September 15, Hutchinson provided the committee more detail about Passantino’s alleged efforts to share her testimony with Herschmann and others. Passantino told her to call Trump’s lawyer, Justin Clark, as well as Alex Cannon and Eric Herschmann, Hutchinson told the committee on September 15.

The day after my third interview with the committee, on Wednesday, May 18th, Stefan let me know that I — he spoke with Justin Clark, Alex Cannon, and Eric Herschmann and suggested that I call — that I have a call with all three of them.

I reached out to initiate the call with Alex Cannon and Justin Clark per Stefan’s instruction. And the that Friday, May 20th, received a call on Signal from Eric Herschmann.

So on September 14, Hutchinson told J6C about behavior involving Herschmann resembling witness tampering, including behavior involving Maggie Haberman! On September 15, Hutchinson told J6C about behavior involving Herschmann resembling witness tampering. And on September 16, Maggie Haberman quoted Herschmann blaming Epshteyn for any witness tampering.

All that background is why I find the way Maggie ended her foray into campaign finance journalism so interesting. She quotes anonymous sources — not the public J6C transcripts showing that Passantino and Alex Cannon were sourcing her earlier reporting on this — attributing Hutchinson’s testimony as the genesis of this focus on paying law firms.

The questions of which lawyers and vendors have been paid, and for what, intensified after the House select committee investigating Mr. Trump’s efforts to cling to power told the Justice Department that it had evidence that a lawyer representing a witness had tried to coach her testimony in ways that would be favorable to Mr. Trump. The witness in question was later identified by people familiar with the committee’s work as Cassidy Hutchinson, a former White House aide.

Her lawyer at the time, Stefan Passantino, was a former White House deputy counsel under Mr. Trump and was paid through Save America.

The reason I’m interested in this is because the point of Passantino’s alleged efforts to coach Hutchinson’s testimony was not, primarily, to protect Trump. According to Hutchinson’s testimony, at least, it was to protect Eric Herschmann, someone who has had tremendous success (like his close associate Jared Kushner) laundering his reputation through Maggie Haberman.

Ms. Hutchinson. ~ You previously asked about individuals he had raised with me. In my conversation with him earlier that afternoon, when I [sic] asking him about the engagement letter, I did also ask Stefan if he was representing any other January 6th clients. And he had said, “No one that I believe that you would have any conflicts with.”

And I said, “Would you mind letting me know?” Now, again, to this day, I still don’t know if that’s really a kosher question to ask an attorney, if they can share their clients with me, but I wanted to make sure that there actually weren’t any conflicts, because I didn’t have anything in writing.

He wouldn’t tell me anybody he was representing before the January 6th Committee, but he did tell me that he had previously represented Eric Herschmann and Jared Kushner and Ivanka Trump in unrelated matters.

And in that same conversation, he said, “So if you have any conversations with any of them, especially Eric Herschmann, we want to really work to protect Eric Herschmann.”

And I remember saying sarcastically to him, “Eric can handle himself. Eric has his own resources. Why do I have to protect Eric?” He said, “No, no, no. Like, just to keep everything straight, like, we want to protect Eric with all of this.”

Ms. Cheney. Did he explain what he meant?

Ms. Hutchinson. No. And, to be honest, I didn’t ask. I didn’t have anything with Eric anyway that I felt that I had to protect. And I say that because, at the time of being back in Trump world — this is where I look back and regret some of this, but — like, I did feel a need to protect certain people. But with somebody like Eric, I didn’t feel that need, I didn’t find it necessary.  didn’t — I didn’t think that Eric did anything wrong at the time.

Ms. Cheney. Did it have something to do with NARA?

Ms. Hutchinson. He never really explained to me what it was exactly that we wanted to protect Eric on. I sort of erred on the side of: Maybe he just represents Eric in ongoing litigation, whether it’s financial disclosures or whatever it might be.

And, again, I just didn’t prod too much on that either, because, you know, I was under the impression that Eric helped set me up with Stefan, so I didn’t — I was worried that Stefan would then go back-channel to Eric and — this is my very paranoid brain at the time, but I was worried that if I, you know, pushed this subject a little too much, that he would then go back to Eric Herschmann and say, “Cassidy asked a lot of questions about you, like, why she needs to protect you.” So just didn’t really press the subject too much on that.

And as Hutchinson learned somewhat belatedly, Passantino had business ties to Alex Cannon and, possibly, Herschmann.

So I — “I want to make sure that I’m getting the dates right with these things?

He goes, “No, no, no.” He said, “Look, we want to get you in, get you out.

We’re going to downplay your role. You were a secretary. You had an administrative role. Everyone’s on the same page about this. It’s extremely unfair that they’re” “they’re” being the committee – “that the committee is putting you in this position in the first place. You really have nothing to do with any of this. It’s Mark’s fault that you’re even involved in this. We’re completely happy to be taking care of you now. We had no idea that you weren’t being taken care of this last year. So we’re really happy that you reached back out to us. But the less you remember, the better. I don’t think that you should be filling in any calendars or anything.”

[Redacted] When he said a

Ms. Cheney. Go ahead.

[Redacted] So everyone’s on the same page about this, did he explain who he was referring to when he said “everyone”?

Ms. Hutchinson. He didn’t at that moment. Then there are times throughout my working relationship with Stefan where he said similar things that I asked.

Later that day, sort of put together that the “they” he was referring to then were Justin Clark, Alex Cannon, Eric Herschmann. I think that’s — yeah, think that’s all of them.

Ms. Cheney. And how did you put that together?

Ms. Hutchinson.  Because he — he had said that — Justin — yeah, Justin Clark. Stefan had told me that — towards the end of the day that because he was involved with Elections, LLC, and tangentially, I guess Trump’s PACs, he had law partners. And unless I was extremely unwilling for him to share, he said it would be natural for him to have to share that information with the people that he works with that are his partners that are involved in Trump world.

That is, Hutchinson testified that Passantino’s alleged effort to coach her testimony was not (necessarily) an effort to protect Trump. It was an effort to protect his business scheme, a business scheme that may have included Herschmann.

In Maggie’s foray into campaign finance journalism, she did not calculate payments to Elections LLC in her discussion of law firms paid by Save America PAC, though it was paid upwards of $400,000 since Trump left office. The last of those payments — for $10,000 — was on December 7, after Trump formalized his 2024 presidential bid. So if Maggie’s right that these payments are illegal, then that $10,000 would be one of the first overt acts in this new criminal exposure.

As it happens, all this ties back to Maggie’s newest story breaking the news of a subpoena to Ivanka and Jared. I’m sure Jack Smith wants to ask Ivanka and Jared about their efforts to get dad to call off his mob.

But he may also want to know why Herschmann — a lawyer whose legal status in the White House remains entirely unexplained — why Herschmann, according to Pat Cipollone’s testimony, told the White House Counsel not to join in that Oval Office meeting where Trump ordered Pence to break the law because “this is family.”

“This is family,” Cipollone said Herschmann told him before he walked in the door. “You don’t need to be here.”

I would imagine that Jack Smith wants to know why, at that moment when Trump prepared to give his Vice President an illegal order, Herschmann was treated as family.

Update: Anna Bower informed me that Epshteyn told the Fulton County Grand Jury that he,

served as a legal, communications, and policy advisor to President Trump’s 2020 re-election campaign; and he continues to serve as legal counsel to President Trump to this day.

He cited NY state’s bar rules to argue that his ethical obligations extend well beyond attorney-client privilege.

In contrast, the client confidences that Mr. Epshteyn is required to safeguard as a New York-licensed attorney pursuant to Rule 1.6 of the New York Rules of Professional Conduct (“NYRPC”)4 reach a broader and less easily identifiable array of communications and information. Like its corollary rule in virtually every U.S. jurisdiction, NYRPC 1.6 provides that “[a] lawyer shall not knowingly reveal confidential information … or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person” absent client consent or “to comply with other law or court order.” NYRPC l.6(a)-(b). The rule defines “Confidential Information” to mean “information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or ( c) information that the client has requested be kept confidential.” NYRPC 1.6(a)(3). The duty to preserve client confidences under Rule 1.6 is much broader that the attorney-client privilege, it includes any information gained during the representation regardless of its nature or source, and it necessarily includes information that is not subject to any other privilege or protection, provided that it is not already generally known in the community.

Epshteyn has always had a far stronger case he was working in a legal role starting in April or May of last year than while he was on the campaign (where he was described by other witnesses, like Jenna Ellis was also described, as playing a PR role).

In public comments from Emily Kohrs, she suggested that Rudy, who was barred in NY still when he represented Trump during the 2020 election, provided thoughtful question by question answers about whether he could answer questions.

Welcome to the Jim Jordan and James Comer Look the Other Way Committees, Brought to You By Access Journalism

In an article published 112 days before the November election, Politico included this sentence about all the investigations Republicans planned to conduct if they won the House.

Republicans on the [Oversight] committee plan to hold high-profile probes into Hunter Biden’s dealings with overseas clients, but they also want to hone in on eliminating wasteful government spending in an effort to align the panel with the GOP’s broader agenda.

Politico’s Jordain Carney did not note the irony of planning, almost four months before the election, an investigation into foreign efforts to gain influence by paying the then Vice President’s son years ago, next to a claim to want to eliminate wasteful spending. He just described it as if yet another investigation into Hunter Biden, even as DOJ continued its own investigation, wasn’t an obvious waste of government resources.

Politico’s Olivia Beavers didn’t point that out either in a 1,400-word profile in August on James Comer entitled, “Meet the GOP’s future king of Biden investigations,” the kind of sycophantic profile designed to ensure future access, known as a “beat sweetener.” (Beaver is currently described as a Breaking News Reporter; this profile was posted 3 days after the search of Mar-a-Lago.) She did acknowledge that these investigations were, “directing the party’s pent-up frustration and aggression toward Democrats after years in the minority,” not any desire to make government work or eliminate wasteful spending. But she nevertheless allowed Comer and his colleagues to claim that an investigation into Joe Biden’s son could be credible — that it would somehow be more credible than the bullshit we expect from Marjorie Taylor Greene.

He’s long been known on both sides of the aisle as a sharp and affable colleague, and has the tendency to lean in with a hushed voice, almost conspiratorially, only to crack a well-timed joke that’s often at his own expense. Beyond that personal appeal, though, Comer emphasized it’s his priority to ensure the oversight panel’s work remains “credible.”

That’s a tricky path to tread, given his party’s investigative priorities are still subject to the whims of former President Donald Trump as well as an increasingly zealous conservative base and media apparatus. But Comer’s particularly well-suited to the task, according to more than two dozen House Republicans interviewed. And if he manages to do it right, it could provide a launching pad to higher office — Comer is not discounting a future bid for Senate or Kentucky governor, though that likely wouldn’t occur until after his four remaining years leading the panel.

“I’m not going to be chasing some of these right-wing blogs and some of their conspiracy theories,” Comer told POLITICO in an hour-long interview conducted in a rented RV trailer that his campaign had parked at the picnic. “We’ll look into anything, but we’re not going to declare a probe or an investigation unless we have proof.”

[snip]

And though Comer has said Hunter Biden would likely get subpoenaed in the event of a declined invitation to the committee next year, he doesn’t want to appear trigger-happy with issuing subpoenas, either.

“This isn’t a dog-and-pony show. This isn’t a committee where everybody’s gonna scream and be outraged and try to make the witnesses look like fools,” he said, before nodding at House Democrats’ past probes of the Trump campaign and Russian election interference. “Unlike Adam Schiff, we’re gonna have something concrete, substantive on Hunter Biden or I’m not going to talk about Hunter Biden.”

Beavers didn’t mention the platitudes she included in her August article when she reported, yesterday, on the press conference Comer and Jim Jordan have scheduled for today, less than 24 hours after the 218th House seat for Republicans was called, to talk about the investigation into Hunter Biden.

Reps. Jim Jordan (R-Ohio) and James Comer (R-Ky.) discussed plans to investigate politicization in federal law enforcement and Hunter Biden’s business affairs.

“We are going to make it very clear that this is now an investigation of President Biden,” Comer said, referring to a planned Republican press conference Thursday about the president and his son’s business dealings.

Beavers has let Comer forget the claim, which she printed as good faith in August, that Comer was “not going to declare a probe or an investigation unless we have proof.”

Olivia. Comer lied to you in August. As a journalist, you might want to call that out.

There is no functioning democracy in which the opposition party’s first act after winning a majority should be investigating the private citizen son of the President for actions taken three to six years earlier, particularly not as a four year criminal investigation into Hunter Biden — still overseen by a Trump appointee — continues.

There is no sane argument for doing so. Sure, foreign countries paid Hunter lots of money as a means to access his father. But according to an October leak from FBI agents pressuring to charge the President’s son (one that Comer pitched on Fox News), which claimed there was enough evidence to charge Hunter Biden for tax and weapons charges but which made no mention of foreign influence peddling charges, that foreign influence peddling apparently doesn’t amount to a crime. Nothing foreign countries did with Hunter Biden is different from what Turkey did with Mike Flynn, Ukraine did with Paul Manafort, Israel did with George Papadopoulos, and multiple countries did with Elliot Broidy. Jim Jordan and James Comer not only had no problem with that foreign influence peddling, they attacked the FBI for investigating them.

If James Comer and Jim Jordan really cared about foreign influence peddling, they would care that, since leaving the White House, the Trump family has entered into more than $3.6 billion of deals with Saudi Arabia ($2 billion to Jared’s investment fund, a $1.6 billion real estate development in Oman announced the day before Trump’s re-election bid, and a golf deal of still-undisclosed value; Judd Legum has a good post summarizing what we know about this relationship). Given that the Oversight panel under Carolyn Maloney already launched an investigation into Jared’s fund — like Hunter Biden’s funding, notable because of the obvious inexperience of the recipient — Comer could treat himself and American taxpayers with respect by more generally investigating the adequacy of protection against foreign influence, made more acute in the wake of the opinion in the Steve Wynn case that guts DOJ’s ability to enforce FARA.

With today’s press conference, you will see a bunch of journalists like Olivia Beavers treating this as a serious pursuit rather than pointing out all the hypocrisy and waste it entails as well as the lies they credulously printed during the election about it. You will see Beavers rewarding politicians for squandering government resources to do this, rather than calling them out for the hypocrisy of their actions.

Maybe, if Comer becomes Governor of Kentucky, Beavers will have the inside track on access to him. I guess then it will have been worth it for her.

This Hunter Biden obsession has been allowed to continue already for three years not just because it has been Fox’s non-stop programming choice to distract from more important matters, but because journalists who consider themselves straight journalists, not Fox propagandists, choose not to call out the rank hypocrisy and waste of it all.

For any self-respecting journalist, the story going forward should be about how stupid and hypocritical all this is, what a waste of government resources.

We’re about to find out how few self-respecting journalists there are in DC.

Update: NBC journalist Scott Wong’s piece on the GOP plans for investigations was similarly supine. The funniest part of it is that it treated a 1,000 page “report,” consisting almost entirely of letters Jordan sent, as if it were substantive. I unpacked the details NBC could have disclosed to readers here.

Meanwhile, this Carl Hulse piece doesn’t disclose to readers that Marjory Taylor Greene’s investigation into the jail conditions of January 6 defendants, besides being an attempt to protect potential co-conspirators, also is falsely premised on claims that the January 6 defendants are treated worse (and not better) than other defendants as well as false claims that many of the pre-trial detainees are misdemeanants.

The Intelligence Gaps Where the Saudis Hid Their October Surprise

NYT has a story on Joe Biden’s serial surprise as he discovered the Saudis were reneging on what the President thought was a deal to keep pumping oil.

Here’s the timeline:

May: Amos Hochstein and Brett McGurk believe they make a deal for a two-part increase of production

June 2: OPEC announces the first part of production increases and Biden announces his Saudi trip

June 3: Trump travels from Mar-a-Lago to Bedminster for Saudi golf tournament

June 7: Adam Schiff and others send Biden a letter warning about Saudi Arabia

Prior to July 15: Briefings for Intelligence Committees on secret plan

July 15: Biden meets with Mohammed bin Salman

August 3: Saudis announce half of production increase promised (“the first public warning”)

September 5: OPEC announced production cuts

Late September: US officials begin hearing of deep production cuts on October 5

September 24: MbS says there will be no production cuts

September 27: Abdulaziz argues cuts would impede diversification plans

September 28: Saudis inform the US they will announce production cuts

October 26: Jared Kushner speaks at Saudi investment summit

NYT emphasizes the Saudi expression of self interest and hints at influence from Russia.

American officials say they believe that Prince Mohammed was particularly influenced by a high-level Sept. 27 meeting in which Prince Abdulaziz, the energy minister, argued that oil production cuts were needed to keep prices from plummeting to as low as $50 per barrel. The U.S. officials said they learned Prince Abdulaziz asserted that, under such as scenario, the Saudi government would lack the resources to fund economic diversification projects at the heart of Prince Mohammed’s domestic agenda.

Some U.S. officials believe that the Russians influenced the Saudi about-face, pointing to Prince Abdulaziz’s strong working ties with top Russian officials close to Mr. Putin, particularly Alexander Novak, the deputy prime minister who oversees energy policy.

[snip]

On Tuesday, speaking on stage at the annual investment forum in Riyadh, Prince Abdulaziz said that the kingdom would do what was in its best interests.

“I keep listening to, ‘Are you with us or against us?’ Is there any room for, ‘We are for Saudi Arabia and the people of Saudi Arabia’?” he said. “We will have to deliver our ambitions.”

But the story focuses more on how the Americans repeatedly got caught by surprise.

The Americans came away from the summit with the belief that the agreement was on track and that Prince Mohammed was satisfied. But in Riyadh, top Saudi officials were privately telling others that they had no plans for further meaningful oil production increases.

Indeed, the first public warning of this came on Aug. 3, when OPEC Plus announced a paltry bump in production for September of 100,000 barrels a day — half of what U.S. officials believed the Saudis had promised them.

American officials said they did not understand why that decision was made. Then OPEC Plus announced on Sept. 5 it would cut production by 100,000 barrels per day — retracting the increase it had announced a month earlier. After that, U.S. officials were increasingly confused and concerned about the kingdom’s direction.

In late September, American officials began hearing that Saudi Arabia could get OPEC Plus to announce a deep cut to oil production at a meeting scheduled for Oct. 5. [my emphasis]

There’s no comment about Trump’s ongoing meetings with the Saudis as this transpired, not even the one the day after Biden announced his visit, the same day (as it happens) that Trump refused to give back all the classified documents he stole. There’s no comment about MbS’s repeated, publicly stated preference for Trump over Biden.

The story describes Biden’s surprise as the result of wishful thinking. And the US wasn’t totally surprised. They got advance warning of the October cuts with enough time to send Janet Yellen to attempt to reverse the cuts.

But as depicted, the Saudis were saying, from the start, that they intended to renege on the deal with Biden, and the US went on believing the deal would hold for months.

There is no way the US should be taken by that much surprise: not by the Saudis, not by the Israelis, not even by the Brits. If they genuinely were this badly surprised, it would suggest significant intelligence gaps on the part of the US. The US spends billions to avoid such surprises.

One of the last times the IC had a surprise this big came when Vladimir Putin decided, after secret phone calls with Mike Flynn, not to respond to Obama’s 2016 sanctions. (They quickly found an explanation for the surprising turn of events, which intelligence collection Trump’s Director of National Intelligence burned years later.)

Perhaps it’s the paranoia fostered by a man who repeatedly intervenes in US foreign policy to obtain personal benefit, but I can’t help but notice these intelligence failures followed Trump’s meeting with the Saudis in Bedminster.

The Legal and Political Significance of Nuclear Document[s] Trump Is Suspected to Have Stolen

After Merrick Garland called Trump’s bluff yesterday, multiple outlets reported that DOJ was looking for documents relating to nuclear weapons.

Classified documents relating to nuclear weapons were among the items FBI agents sought in a search of former president Donald Trump’s Florida residence on Monday, according to people familiar with the investigation.

[snip]

Material about nuclear weapons is especially sensitive and usually restricted to a small number of government officials, experts said. Publicizing details about U.S. weapons could provide an intelligence road map to adversaries seeking to build ways of countering those systems. And other countries might view exposing their nuclear secrets as a threat, experts said.

It’s unclear whether this information is coming from investigators trying to demonstrate what a no-brainer this search was, people who’ve otherwise seen the Attachment listing items to seize, or from Trump’s camp in an effort to pre-empt damage from when this will be released. With few exceptions, most details made public about the search thus far have come from Trump’s side.

But the report that FBI showed probable cause to believe Trump was hoarding a document or documents pertaining to nukes has several significant legal and political implications.

First, it makes it far more likely that Trump has violated, and can be proven to have violated, part of the Espionage Act, 18 USC 793.

In my post describing the likely content of an affidavit justifying a search of the former President, I noted that somewhere in there, the FBI would have had to anticipate and rule out the possibility that Trump simply declassified these documents which, if Trump could prove it, would render the documents simply stolen documents covered by the Presidential Records Act.

  • Some explanation of why DOJ believes that these documents weren’t actually declassified by Trump before he stole them

But the fact that these are nuclear documents, under the Atomic Energy Act, Trump cannot declassify them by himself. They’re “restricted documents,” the one kind of document that’s true of. Here are threads by Kel McClanahan and Cheryl Rofer explaining the distinctions — even Chelsea Manning weighed in! As McClanahan likened it, nuclear documents are protected by two padlocks, and Trump only had the legal key to one of those padlocks.

So by showing probable cause that Trump had stolen at least one document pertaining to nuclear weapons, FBI would accomplish that task: Trump could not claim to have declassified any such documents, because he cannot have declassified them by himself.

Now consider how it impacts Trump’s exposure under the Espionage Act. As I laid out here, to prove someone violated the Espionage Act, you don’t actually prove they were refusing to return classified information; you prove they had what is called “National Defense Information.” Even if Trump claimed to have declassified the documents, if the Agency in question (here, likely DOD or DOE) still believed the information to be classified and still treated as such, it could still qualify as NDI. But ultimately, a jury gets to decide whether something is NDI or not. One key difference between the first and second Joshua Schulte trials, for example, is that DOJ relied not on expert testimony to prove that he leaked or was trying to leak NDI, but rather on the logic of why the government would want to keep information about its assets secret. I thought it was one of the areas where the second prosecution was vastly more effective than the first.

There are few easier concepts to explain to a juror than that you need to keep information about nuclear weapons safe, and that doing so pertains to the national defense.

Then there’s the backstory. Early in the Trump Administration, there were reports that Trump had a scheme (one that involved all Trump’s sketchiest flunkies, including Mike Flynn) to transfer sensitive nuclear reactor technology to Saudi Arabia. The Oversight Committee conducted an investigation, the results of which, with the hindsight of Mohammed bin Salman’s $2 billion investment in a paper-thin Jared Kushner finance scheme and the Foreign Agent charges against Tom Barrack, look all the more suspect.

In 2017, President Trump’s son-in-law, Jared Kushner, orchestrated a visit to Saudi Arabia as the President’s first overseas trip. Mr. Kushner also met on his own with then-Deputy Crown Prince Mohammed bin Salman, who subsequently ousted his cousin, Mohammed bin Nayef, launched a crackdown against dozens of Saudi royal family members, and reportedly bragged that Mr. Kushner was “in his pocket.”

In October 2018, the brutal murder of Washington Post columnist Jamal Khashoggi was met with equivocation by President Trump and other top Administration officials. This month, the White House ignored a 120-day deadline for a report on Mr. Khashoggi’s killing requested on a bipartisan basis by the Senate Committee on Foreign Relations.

Within the United States, strong private commercial interests have been pressing aggressively for the transfer of highly sensitive nuclear technology to Saudi Arabia—a potential risk to U.S. national security absent adequate safeguards. These commercial entities stand to reap billions of dollars through contracts associated with constructing and operating nuclear facilities in Saudi Arabia—and apparently have been in close and repeated contact with President Trump and his Administration to the present day.

However, experts worry that transferring sensitive U.S. nuclear technology could allow Saudi Arabia to produce nuclear weapons that contribute to the proliferation of nuclear arms throughout an already unstable Middle East. Saudi Crown Prince Mohammed bin Salman conceded this point in 2018, proclaiming: “Without a doubt, if Iran developed a nuclear bomb, we will follow suit as soon as possible.”

When Congress passed the Atomic Energy Act, it imposed stringent controls on the export of U.S. technology to a foreign country that could be used to create nuclear weapons. Under Section 123 of the Act, the U.S. may not transfer nuclear technology to a foreign country without the approval of Congress, in order to ensure that the agreement reached with the foreign government meets nine specific nonproliferation requirements.

[snip]

[W]histleblowers provided new information about IP3 International, a private company that has assembled a consortium of U.S. companies to build nuclear plants in Saudi Arabia. According to media reports, IP3’s only project to date is the Saudi nuclear plan. A key proponent of this nuclear effort was General Michael Flynn, who described himself in filings as an “advisor” to a subsidiary of IP3, IronBridge Group Inc., from June 2016 to December 2016—at the same time he was serving as Donald Trump’s national security advisor during the presidential campaign and the presidential transition. According to the whistleblowers, General Flynn continued to advocate for the adoption of the IP3 plan not only during the transition, but even after he joined the White House as President Trump’s National Security Advisor.

[snip]

Another key proponent of this effort was Thomas Barrack, President Trump’s personal friend of several decades and the Chairman of his Inaugural Committee.

The nuclear energy scheme (which did not involve nuclear weapons, but implicated concerns that the Saudis would develop them) overlaps closely with the scope of the Foreign Agent charges against Barrack (and I don’t rule out that FBI’s focus on such document(s) stems, in part, from Barrack’s upcoming trial). One of the overt acts charged against Barrack, for example, is that he “forced” the Trump White House to elevate the treatment of MbS on a visit to the US in March 2017 beyond that accorded by his rank at the time.

To be sure: There’s not a hint of evidence that the government has reason to believe Trump tried to sell or otherwise share the documents he stole with foreign entities. If the government suspected Trump might do so with Restricted Documents covered by the Atomic Energy Act, it would implicate a different crime, 40 USC 2274, with which Jonathan Toebbe was charged last year for trying to deal such technology to Brazil. Trump has succeeded in obscuring the crimes listed on his warrant (though not all crimes need to be listed on the overt warrant), but if the Atomic Energy Act were implicated, that would be really hard to do (unless this leaked detail is an effort on Trump’s part to prepare for the mention of the Atomic Energy Act on the warrant, though I doubt that’s the case).

So for now, Trump’s past history of attempting to share nuclear technology with the Saudis for the profit of his closest advisors is just background noise: something that makes it all the more concerning he is suspected of stealing such documents. But if the FBI did not find nuclear documents they have reason to believe Trump stole, then that could change quickly.

Finally, there’s a political angle. The press has been absolutely remiss in calling out Republicans for their hypocrisy about classified information — or their irresponsibility in parroting Trump’s complaints about a serious breach investigation. Instead, the press treated the nation’s security as a he-said, she-said fight between political parties.

But the report that the FBI has reason to believe that Trump stole documents about nuclear weapons provides just the kind of horse race angle that seems to be the only thing that vast swaths of journalists can understand anymore. That’s because in 2016, Marco Rubio argued that Trump was “unfit for the Presidency” because we could not give the “nuclear codes of the United States to an erratic individual.”

Indeed, Val Demings, who is in a close fight against Rubio in November’s Senate elections, just made it an issue yesterday, before the nuclear angle became clear.

2016 Marco Rubio scoffed at the notion that someone like Trump should be given access to the nuclear codes. 2022 Marco Rubio — largely because he wants to win Trump’s favor in the election against Demings — doesn’t even want the FBI to investigate whether Trump stole the nuclear codes when he left office.

Perhaps with a horserace angle, the press might finally hold Republicans accountable for their irresponsibility of their efforts to protect Trump here.

How Adam Schiff Proves that Adam Schiff Is Lying that It Is “Unprecedented” for Congress to Be Ahead of DOJ

I had imagined I would write a post today introducing Andrew Weissmann — who like a lot of other TV lawyers has decided to weigh in on the January 6 investigation without first doing the least little bit of homework — to the multiple prongs of the DOJ investigation that he complains is not investigating multiple spokes at once.

Department of Justice January 6 investigations interview with Andrew Weissmann and Rep. Adam Schiff from R G on Vimeo.

But as I was prepping for that, I watched another of the Ari Melber pieces where he replicates this false claim.

Let me correct that. Melber actually doesn’t present Weissmann’s argument that the multiple pronged DOJ investigation should have multiple prongs, perhaps because since Weissmann first made it, it became clear he missed the Sidney Powell investigation entirely, the status of the investigations into Roger Stone and Rudy Giuliani, the influencers that DOJ has already prosecuted as part of the investigation into the crime scene, and that DOJ actually started the fake electors investigation months before it was previously known.

Rather, Melber presents Adam Schiff’s claim that it is “unprecedented” for a congressional committee to be “so far out ahead” of DOJ.

Melber: We haven’t seen this kind of — he called it a breakdown, you might put it differently, but whatever it is, between the Justice Department and the Committee, but it also reflects that you’ve gotten some witnesses first. Do you share Mr. Weissmann’s concern? Could the DOJ be doing more quickly?

Schiff: I very much share his concern and have been expressing a very similar concern really for months no. It is so unprecedented — and I’ve been a part of many Congressional investigations that have been contemporaneous with Justice Department investigations — but it is unprecedented for Congress to be so far out ahead of the Justice Department in a complex investigation because as he was saying, as Andrew was saying, they’ve got potent tools to get information. They can enforce their own subpoenas in a way we can’t.

Let me introduce Adam Schiff to the House Intelligence Committee investigation into the 2016 Russian attack, on which a guy named Adam Schiff was first Ranking Member, then Chair, and the Mueller investigation into the same, on which Andrew Weissmann was a senior prosecutor.

Donald Trump Jr.

Interviewed by HPSCI on December 6, 2017

Never interviewed by Mueller’s team

Roger Stone

Interviewed by HPSCI on September 26, 2017

Never interviewed by Mueller’s team

Jared Kushner

First interviewed by HPSCI on July 25, 2017

First interviewed by DOJ on November 1, 2017

Steve Bannon

First interviewed by HPSCI on January 16, 2018

First interviewed by Mueller on February 12, 2018

John Podesta

Interviewed by HPSCI in June and December, 2017

Interviewed by Mueller in May 2018

Jeff Sessions

Interviewed by HPSCI on November 30, 2017

Interviewed by Mueller on January 17, 2018

JD Gordon

Interviewed by HPSCI on July 26, 2017

First interviewed by Mueller on August 29, 2017

Michael Caputo

Interviewed by HPSCI on July 14, 2017

Interviewed by Mueller on May 2, 2018

Michael Cohen

Interviewed by HPSCI on October 24, 2017

First interviewed by Mueller on August 7, 2018

Now, Schiff, who claimed it was unprecedented for a congressional investigation to precede a DOJ one, might say that the HPSCI investigation into Russia doesn’t count as a clear precedent because it wasn’t all that rigorous because it was led by Devin Nunes (that’s partly right, but there were plenty of Democratic staffers doing real work on that investigation too). But even on the January 6 Committee, there are already multiple instances where the Committee has interviewed witnesses before DOJ has (or interviewed witnesses that DOJ never will, before charging them), but gotten less valuable testimony than if they had waited.

One example, Ali Alexander, is instructive. He at least claimed he was going to tell the January 6 Committee a story that had already been debunked by DOJ. But before DOJ interviewed Alexander, at least two people with related information had gotten cooperation recognition in plea agreements, and several direct associates — most notably Owen Shroyer — had had their phones fully exploited.

Weissmann would likely point to good reasons why Mueller took more time, too: because later interviews with people like Michael Caputo or Jared Kushner required a lot more work on content acquired with covert warrants first, or because with people like Michael Cohen there was an entire financial investigation that preceded the first interview, or because DOJ was just a lot more careful to lay the groundwork with subjects of the investigation.

But the same is true here. DOJ will likely never interview Rudy on this investigation. But Lisa Monaco took steps on her first day in office that ensured that at whatever time DOJ obtained probable cause against Rudy, they had the content already privilege-reviewed. And DOJ did a lot of investigation into Sidney Powell before they started subpoenaing witnesses.

Many of the other witnesses that HPSCI interviewed long (or even just shortly) before DOJ did on Russia lied to HPSCI.

As both these men know, and know well, it is simply false that Congress never gets ahead of DOJ. But there are good reasons for that, and one of those reasons is precisely the one that Weissmann claims should lead DOJ to go more quickly: that it has far more tools to use to ensure that interviews that happen will more robustly support prosecutions.