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25-3=22: Diminishing Representations

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Less than a day after Sidney Powell pleaded guilty in Georgia, but before he made his curious comments that she would be conflicted from representing him, Trump responded to DOJ’s bid to require him to reveal any advice of counsel defense by mid-December, when trial exhibits are due.

In the DOJ motion, they claimed that Trump knew what had been withheld from DOJ under privilege claims.

[T]he defendant knows what information the Government has—and does not have—that might support or undermine the defense. The Government produced in discovery the privilege logs for each witness who withheld material on the basis of a claim of privilege on behalf of the defendant or his campaign, and in some cases the defendant’s campaign was directly involved in discussions regarding privilege during the course of the investigation. In other instances, the Government produced court orders requiring the production of material claimed to be privileged. Compelling the defendant to provide notice, and thereby discovery, would be reciprocal of what the Government already has produced. For example, defense counsel publicly identified one attorney on whose advice the defense intends to rely at trial, and the Government has produced in discovery substantial evidence regarding that attorney and his advice, including relevant search warrant returns.8 Any material relevant to that attorney’s advice that remains shielded by the attorney-client privilege should be produced to the Government at the earliest date to avoid disruption of the trial schedule.

8 That same attorney asserted an attorney-client privilege with the defendant and his campaign to shield material from disclosure to Congress. See Eastman v. Thompson, Case No. 8:22-cv-00099 (C.D. Cal.), ECF No. 260 at 15 (“The evidence clearly supports an attorney-client relationship between President Trump, his campaign, and [plaintiff] during January 4-7, 2021.”).

Trump appears to disagree with DOJ’s claim that he knows the universe of materials withheld on privilege grounds. He wants DOJ to share with him everything that DOJ knows about over which a privilege claim has been made.

He even suggests that some of these 25 people, potentially including Powell, were not claiming his was the privilege they were protecting.

The prosecution claims that 25 witnesses have invoked privilege. Presumably, the prosecution also received privilege logs or other privilege invocations in response to document requests. The prosecution should be required to disclose these 25 witnesses, along with all of the logs in which the prosecution is interested. At this time, defense counsel has not been able to fully review the voluminous discovery in this matter, which is indeed impossible within the schedule set by the Court.

At a minimum, the prosecution should (1) identify all materials within their discovery production that they assert are attorney-client privileged information, work product, or are otherwise protected; (2) describe the basis for the assertion that the materials are protected and who holds the privilege with respect to those materials; (3) identify the 25 witnesses referenced in the motion, or any other witnesses, that have asserted the attorney-client privilege or who the prosecution believes possess attorney-client privileged information; and (4) identify all materials not within their discovery production that they believe the defense would be required to produce regarding an advice of counsel defense, including the source of the materials.

His filing even made an obscure comment, taunting that DOJ would need to turn over “what it recovers” from previously privileged witnesses and records.

6 The prosecution does not seem to recognize that if the defense produces privileged discovery, the prosecution then has an obligation to produce what it recovers from its investigation of the previously privileged witnesses and records.

That was Friday. Also on Friday, Kenneth Chesebro pled guilty in Georgia. And Jenna Ellis has (unsurprisingly, given that Trump refused to pay for her defense) also pled guilty.

Just for reference, here are the privilege logs that Rudy and Bernie Kerik submitted in the Ruby Freeman case; between the two of them, Jenna appears over 150 times, including on a bunch of Dominion-related communications.

There were clearly 25 lawyers in the know. But Trump seems to have some doubts whether he knows who those lawyers were representing.

As more of them plead guilty, he may have more urgency in wanting to learn the full details of their privilege claims.

Update: Folks are disputing how useful Jenna will be as a cooperating witness. I agree with NYT: she’s more valuable than Ken Chesebro, and possibly even than Sidney Powell.

Here are the people that she at first tried to claim privilege over with the January 6 Committee, only to invoke the Fifth Amendment:

On Visibility and [dis]Covering Kenneth Chesebro

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Yesterday, CNN reported that Kenneth Chesebro, identified as co-conspirator 5 in Trump’s DC indictment and charged in the Georgia one, in both indictments for actions limited to the fake electors scheme, trailed Alex Jones while he was present at the Capitol on January 6, apparently recording Jones’ actions and words for most of the time he’s at the Capitol.

CNN cites Ryan Goodman — who has steadfastly refused to look closely at much of the crime scene video evidence (much less credit the investigators who have meticulously catalogued it) — making a nonsense legal argument about the significance of Chesebro’s actions, one that clings to a cognitive distance between the white collar planning, to which he assigns Chesebro, and the blue collar execution of the attack).

Ryan Goodman, a law professor at New York University who previously served as the special counsel to the general counsel at the Department of Defense, told CNN that Chesebro’s presence on the Capitol grounds could be cited by prosecutors.

“Regardless of Chesebro’s potential criminal liability for being in the restricted areas of Capitol grounds, this evidence could be cited by prosecutors as further proof that Chesebro was not operating as a bona fide legal advisor but rather was an activist aligned in the cause to overturn the election,” Goodman said. “It undercuts defenses Chesebro might mount that he was functioning only in the role of providing legal advice for clients.”

The NYT version of the same story makes an equally nonsensical observation about what it means, claiming that this is the first evidence that “different tentacles of the efforts to keep Mr. Trump in power [] overlapped.”

Until now, there appeared to be different tentacles of the efforts to keep Mr. Trump in power that had not overlapped. But Mr. Chesebro hinted at those connections in an email exchange with John Eastman, another lawyer who was instrumental in the plan to pressure Mr. Pence with the fake elector scheme.

In late December 2020, the two lawyers discussed how to get a case before the Supreme Court. Mr. Chesebro told Mr. Eastman as they discussed filing a legal action that in terms of the highest court, the “odds of action before Jan. 6 will become more favorable if the justices start to fear that there will be ‘wild’ chaos on Jan. 6 unless they rule by then, either way.”

The pressure on state legislators brought to bear by Stop the Steal, ginned up at rallies headlined by Jones and Alexander, has always been a necessary component of the fake electors plan. The Georgians charged in the Trump side of the fake elector charges in the Georgia indictment, Robert Cheeley and Scott Hall, were also coordinating with the people pressuring Ruby Freeman. The political violence was not an afterthought, it was part of the plan.

Indeed, Thomas Joscelyn, a key author of the January 6 Report, noted that this overlap is in no way new and reminded that Jones and Owen Shroyer were in contact with the Proud Boys who are awaiting sentencing on their sedition conviction.

There is no firm dividing line between those orchestrating the political conspiracy to overturn the election and the extremists who led the attack on the Capitol.

He cited back to the passage of the report describing that Jones’ entourage was in direct contact, in real time, with the Proud Boys, even as they kicked off the riot.

Other, more prominent members of the Proud Boys appear to have been in contact with Jones and Shroyer about the events of January 6th and on that day. Records for Enrique Tarrio’s phone show that while the attack on the Capitol was ongoing, he texted with Jones three times and Shroyer five times.124 Ethan Nordean’s phone records reflect that he exchanged 23 text messages with Shroyer between January 4th and 5th, and that he had one call with him on each of those days.125 Records of Joseph Biggs’s communications show that he texted with Shroyer eight times on January 4th and called him at approximately 11:15 a.m. on January 6th, while Biggs and his fellow Proud Boys were marching at and around the Capitol.126

Those ties have remained close. Indeed, Jones and Shroyer — who were asked to lead Trump’s mob to the Capitol by someone in Trump’s immediate vicinity — have shared a lawyer, Norm Pattis, with former InfoWars employee and seditionist Joe Biggs for over a year; Pattis has also even taken over the defense of Zach Rehl.

But the limited visibility J6C had on that key node, the Jones entourage (largely because of their obstruction), ultimately prevented it from connecting all the dots and indeed the full extent of those dots remains obscure.

Even before you add Chesebro to the equation, in that entourage you had Jones who understood he was sent to lead the mob by Trump himself (J6C concludes it must have been conveyed through Caroline Wren, though for reasons I included in this post, that’s not entirely convincing). You had Shroyer, who shared that understanding, and who was coordinating with those launching the attack. And in addition to his frequent updates from Wren and coordination with Garrett Ziegler (now a central player in the Hunter Biden information operation led by Rudy Giuliani), Ali Alexander was also coordinating closely with Paul Gosar’s office — the guy who’d kick off the challenges. And all of them have exceptionally close ties to Roger Stone, including membership in the Friends of Stone list.

And, as CapitolHunters reminded in response to this coverage — and backed with a new researcher-compiled video of Jones’ movements that day — Jones played an absolutely central role in the success of the attack, first by bringing reinforcements to those leading the attack, and then, once he got there, by leading a huge chunk of those mobsters to the East side of the Capitol, where they’d serve a crucial role in a second, pincer attack on the building.

The convergence of first Jones and then key members of two militias on the East doors is the easiest place to see that the attack on the Capitol wasn’t random, but — at least in key movements — was fairly well executed. That convergence — and collection of evidence showing the import of Jones’ actions, for which people have already done time — has been an investigative focus from the start.

And Chesebro was there, capturing Jones’ actions.

Jones is a blowhorn-wielding asshole. But he commands almost the same kind of rabid loyalty as Trump does (Alexander estimated that a third of the attendees that day were Jones’ people). And via whatever means (the new Jones compilation video makes me wonder about potential uneven understanding of the events of the day, between Jones, Alexander, and Jones’ handlers) Jones played a central role in events of the day.

That entourage was a bunch of men checking in with at least Wren and possibly Ziegler, with Gosar’s office, and with the Proud Boys as they launched the attack on the Capitol. That entourage led a mob from the Ellipse, and then wittingly or not, deployed the mob where they would be the most effective, right there on the East steps before a second major breach would occur.

That’s the background one should bring to the images showing Chesebro, someone always associated with the plotting in the Willard, filming Jones as that entourage moved around the Capitol.

It’s not clear who sent him or why. NYT quotes a Jones lawyer — probably the same lawyer that Jones, Shroyer, Biggs, and Rehl share, Norm Pattis — disclaiming any knowledge of why Chesebro was shadowing Jones that day (though, given Jones’ paranoia and Shroyer’s pending sentencing, I’d find the denial more credible if Jones were squawking about being spied on by the Deep State).

It remains unclear why Mr. Chesebro was with Mr. Jones’s group outside the Capitol or how he came to be with them. A lawyer for Mr. Jones said that Mr. Jones was unaware that Mr. Chesebro had been following his entourage that day.

Plus, at one point, Chesebro seems to share something on his phone with a member of Jones’ security.

It is clear that Chesebro is not participating in the riot. Chesebro never indulges in the kind of fan worship of Jones as everyone else following him around does. Nor does he ever get distracted by the far more significant spectacle happening just yards away. He appears to be, at a minimum, monitoring Jones (though CapitolHunters pointed to some mannerisms that could be the kind of signaling as other things seen in the crime scene footage). And when Jones leaves, Chesebro follows. Chesebro continues to monitor — and film — as Jones seeds a conspiracy theory about the attack being launched by provocateurs on his way out (Michael Coudrey is a key Alexander associate, another member of the entourage).

We have seen that members of both the Proud Boys and Oath Keepers monitored the proceedings of the attack remotely, with Proud Boy leaders — including Tarrio and Bertino — chiming into the command and control from afar. It may be that’s what we’re seeing here.

After thirty months of hypervisibility, it’s easy to forget that there were actually pockets of the attack (inside offices without surveillance cameras and under the scaffolding are two of them) that could only be rendered visible by the cameras of others onsite, making their own recording. There are parts of Jones’ movement — which his own entourage recorded with a GoPro and at least one phone — that he subsequently edited.

The actions of Ken Chesebro suggest that someone wanted to make sure Jones’ movements at the Capitol would be visible, possibly to people monitoring the attack remotely, perhaps even in real time. Indeed, given that we’ve never seen this footage published on Parler, it suggests someone wanted a record of Jones’ real-time movement for private consumption.

The two indictments implicating Ken Chesebro have brought new visibility to him, and his actions. The discovery of Chesebro monitoring Jones’ activities during the attack have made aspects of the coordination behind this attack visible to TV lawyers for the first time. But amid all that newfound visibility, it’s worth remembering that some people knew to — and did — monitor all this in real time.

Update: I may have overstated when I claimed that Chesebro hadn’t cheered Jones. At the very beginning of this clip, Chesebro (in the far left of the frame) yells out, “Alex Jones” with the rest inaudible to me.

The Overt Investigative Steps into Trump’s Co-Conspirators TV Lawyers Ignored

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The first overt act in the investigation into Donald Trump’s six co-conspirators happened on January 25, 2021.

The Jeffrey Clark investigation started at DOJ IG

On that day, DOJ Inspector General Michael Horowitz announced that he was opening an investigation, “into whether any former or current DOJ official engaged in an improper attempt to have DOJ seek to alter the outcome of the 2020 Presidential Election.” The announcement came three days after Katie Benner did a story laying out Jeffrey Clark’s efforts to undermine the election results. Horowitz explained that he made the announcement, “to reassure the public that an appropriate agency is investigating the allegations.”

We don’t know all the details about what happened between Horowitz’s announcement of that investigation and last week’s indictment describing Clark as co-conspirator 4. Probably, when Merrick Garland arranged for Joe Biden to waive Executive Privilege so Jeffrey Rosen and others could tell the Senate Judiciary Committee what happened in July 2021, that freed up some communications to DOJ IG. For the record, I raised questions about why it took so long — though I suspect the delay in restoring the contacts policy at DOJ was part of it. Some time before May 26, 2022, DOJ obtained warrants for a private Jeffrey Clark email account and on May 26, Beryl Howell approved a filter process. On June 23, 2022, the FBI seized Clark’s phone — with some involvement of DOJ IG — and the next day DOJ seized a second email account of Clark’s. When FBI seized Clark’s phone, I predicted it would take at least six months to fully exploit Clark’s phone, because that’s what it was generally taking, even without a complex privilege review. Indeed, five months after first seizing some of Clark’s cloud content, on September 27, 2022, he was continuing to make frivolous privilege claims to keep his own account of the events leading up to January 6 out of the hands of investigators.

The first overt act in the investigation into one of Trump’s co-conspirators happened 926 days ago. Yet TV lawyers continue to insist the investigation that has resulted in an indictment including Clark as Donald Trump’s co-conspirator didn’t start in earnest until Jack Smith was appointed in November 2022.

A privilege review of Rudy’s devices was set in motion (in the Ukraine investigation) in April 2021

Clark is not the only one of Trump’s co-conspirators against whom investigative steps occurred in 2021, when TV lawyers were wailing that nothing was going on.

Take the December 6, 2020 Kenneth Chesebro memo that forms part of the progression mapped in the indictment from Chesebro’s efforts to preserve Wisconsin votes to trying to steal them. NYT liberated a copy and wrote it up here. It’s not clear where DOJ first obtained a copy, but one place it was available, which DOJ took steps to obtain starting on April 21, 2021 and which other parts of DOJ would have obtained by January 19, 2022, was on one of the devices seized from Rudy Giuliani in the Ukraine influence-peddling investigation. The PDF of a December 6 Kenneth Chesebro memo shows up in Rudy’s privilege log in the Ruby Freeman suit, marked with a Bates stamp from the Special Master review initiated by SDNY.

While Rudy is claiming privilege over it in Freeman’s lawsuit, it is highly likely Barbara Jones ruled that it was not (only 43 documents, total, were deemed privileged in that review, and there are easily that many emails pertaining to Rudy’s own defense in his privilege log).

The way in which SDNY did that privilege review, in which SDNY asked and Judge Paul Oetken granted in September 2021 that the review would cover all content post-dating January 1, 2018, was public in real time. I noted in December 2021, that Rudy’s coup-related content would be accessible, having undergone a privilege review, at any such time as DC investigators obtained probable cause for a warrant to access it.

Since then, Rudy has claimed — to the extent that claims by Rudy are worth much — that all his coup-related content would be available, and would only be available, via materials seized in that review. (In reality, much of this should also have been available on Gmail and iCloud, and Rudy’s Protonmail account does not appear to have been captured in the review at all.)

But unless you believe that Rudy got designated co-conspirator 1 in the indictment without DOJ ever showing probable cause against him, unless you believe DOJ decided to forego directly relevant material that was already privilege-reviewed and in DOJ custody, then we can be certain January 6 investigators did obtain that content, and once they did, the decisions made in April and August and September 2021 would have shaved nine months of time off the investigation into him going forward.

Indeed, those materials are one likely explanation for why DOJ’s investigation, as represented by subpoenas sent starting in May 2022, had a slightly different focus than January 6 Committee did. The first fake elector warrants sent in May 2022 as well as those sent in June and November all included Victoria Toensing and Joe DiGenova. Rudy’s known J6C interview included the couple as key members of his post-election team. But no one else seems to have cared or figured out what they did. After Rudy listed them in his January 6 interview, the Committee never once raised them again. But they were always part of a sustained focus by DOJ.

The more explicit investigative steps targeting Rudy have come more recently. Rudy was subpoenaed for information about how he was paid in November 2022. He sat for an interview in June.

But a privilege review on the coup-related content on seven of Rudy’s devices would have been complete by January 19, 2022 — the day before the long privilege battle between J6C and John Eastman started.

DOJ’s investigation of Sidney Powell’s graft was overt by September 2021

The investigation into one more of the six co-conspirators described in Trump’s indictment was also overt already in 2021: Sidney Powell.

Subpoenas sent out in September — along with allegations that Powell’s associates had made damning recordings of her — were first reported in November 2021. The investigation may have started under the same theory as Jack Smith’s recent focus on Trump: That Powell raised money for one thing but spent the money on something else, her legal defense. Molly Gaston, one of the two prosecutors who has shown an appearance on Trump’s indictment and who dropped off her last crime scene cases in March 2021, played a key role in the investigation.

By the time of DOJ’s overt September steps, both Florida’s Nikki Fried and Dominion had raised concerns about the legality of Powell’s graft.

According to Byrne, Powell had received a wave of donations in the aftermath of the election after being praised by mega-popular right-wing radio host Rush Limbaugh. But the donations were often given haphazardly, sometimes as a dollar bill or quarter taped to a postcard addressed to Powell’s law office. Byrne claims he discovered that Powell had amassed a fortune in contributions, somewhere between $20 and $30 million but provided no evidence to support the claim. A projected budget for Defending the Republic filed with the state of Florida lists only $7 million in revenue for the group.

Defending the Republic’s funds weren’t going towards the pro-Trump goals donors likely envisioned, according to Byrne. Instead, he claimed they were spent on paying legal bills for Powell, who has faced court disciplinary issues and a daunting billion-dollar defamation lawsuit from Dominion Voting Systems.

“It shouldn’t be called ‘Defending the Republic,’” Byrne said in the recording. “It should be called ‘Defending the Sidney Powell.’”

Attorneys for Dominion have also raised questions about the finances for Defending the Republic, which the voting technology company has sued alongside Powell. In court documents filed in May, Dominion accused Powell of “raiding [Defending the Republic’s funds] to pay for her personal legal defense.”

Dominion attorneys claimed in the filing that Powell began soliciting donations to Defending the Republic before officially incorporating the group. That sequence, they argued, meant that donations for the group “could not have been maintained separately in a bank account” and “would have necessarily been commingled in bank accounts controlled by [Powell].”

[snip]

Defending the Republic’s finances first attracted the scrutiny of regulators in Florida shortly after Powell founded the group in November 2020 when authorities received a complaint and subsequently issued a subpoena to internet hosting service GoDaddy for information about the group’s website.

In a June press conference, Florida Agriculture Commissioner Nikki Fried said Defending the Republic was “found to be soliciting contributions from the State of Florida or from persons within the State of Florida” on the internet “without having filed in the State of Florida” as a charitable organization.”

On Aug. 24, Defending the Republic paid a $10,000 fine as part of a settlement agreement with Florida authorities over its fundraising.

All that graft would directly overlap with the sole focus on Powell in the indictment: on her false claims about voting fraud, particularly relating to Dominion. Aside from a claim that Powell was providing rolling production of documents in January 2022, it’s not clear what further steps this investigation took. Though it’s not clear whether Powell showed up on any subpoenas before one sent days after Jack Smith’s appointment in November.

Unlike Clark and Eastman, there have been no public reports that Powell had her phone seized.

DOJ may have piggybacked off John Eastman’s legislative purpose subpoena

DOJ’s overt focus on John Eastman came after the January 6 Committee’s long privilege battle over his Chapman University emails. Two months after Judge David Carter found some of Eastman’s email to be crime-fraud excepted (at a lower standard for “corruptly” under 18 USC 1512(c)(2) than was being used in DC District cases already), DOJ obtained its own warrant for Eastman’s emails, and a month later, his phone.

While it seems like DOJ piggybacked off what J6C was doing, the phone warrant, like Clark’s issued on the same day, also had involvement from DOJ IG.

Whatever the import of J6C, it’s notable that J6C was able to get those emails for a legislative purpose, without first establishing probable cause a crime had occurred. DOJ surely could have subpoenaed Eastman themselves (though not without tipping him off), but it’s not clear they could have obtained the email in the same way, particularly not if they had to show “otherwise illegal” actions to do so, which was the standard Beryl Howell adopted in her first 1512(c)(2) opinion, issued orally on January 21, 2022.

DOJ’s focus on Kenneth Chesebro (whom J6C didn’t subpoena until July 2022, months after DOJ was including him on subpoenas; see correction below) and whoever co-conspirator 6 is likely were derivative of either Rudy and/or Eastman; J6C subpoenaed Rudy, Powell, and Epshteyn on January 18 — though Epshteyn did not comply — and Mike Roman on March 28. Epshteyn shows up far more often in Rudy’s privilege log than Roman does.

But of the four main co-conspirators in Trump’s indictment, DOJ opportunistically found means to take investigative steps — the DOJ IG investigation, probable cause warrants in another investigation, and a fundraising investigation — to start investigating at least three of the people who last week were described as Trump’s co-conspirators. Importantly, with Clark and Rudy, such an approach likely helped break through privilege claims that would otherwise require first showing the heightened probable cause required before obtaining warrants on an attorney.

We know a fair amount about where and when the investigation into four of Trump’s six co-conspirators came from. And for three of those, DOJ took investigative steps in 2021, before the January 6 Committee sent out their very first subpoena. Yet because those investigative steps didn’t happen where most TV commentators were looking — notably, via leaks from defense attorneys — those steps passed largely unnoticed and unobstructed.

Update, August 20: The J6C sent a subpoena to Chesebro in March, before the July one that was discussed at his deposition.

Michigan Attorney General Dana Nessel Charges Michigan’s Fake Trump Electors

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The whole time that DC journalists were focused on Fani Willis’s Georgia fake electors investigation and — more recently — Arizona, I was laughing because I knew prosecutors in Michigan were working away quietly.

Today, Attorney General Dana Nessel charged Trump’s 16 fake electors with 8 felonies apiece.

They include very senior Republicans, including former GOP Chair, Meshawn Maddock, and close Ronna McDaniel associate Kathy Berden.

As I noted in March, one thing horse race considerations always forgot is that very senior Republicans in at least three swing states risked charges themselves. They risked charges — and Trump attorney Kenneth Chesbro knew they did, because he wrote that down in a December memo.

Several States also had rules requiring electors to cast their votes inthe State capitol building, or rules governing the process for approving substitutes if any original proposed electors from the November ballot wereunavailable. As a result, Chesebro’s December 9, 2020, memo advised the Trump Campaign to abide by such rules, when possible, but also recognizedthat these slates could be “slightly problematic in Michigan,” “somewhat dicey in Georgia and Pennsylvania,” and “very problematic in Nevada.”18

In the case of Michigan’s electors, Michigan law requires electors sign their paperwork in the Capitol. Instead, Trump’s fake electors did that in the basement of their own party headquarters.

These defendants are alleged to have met covertly in the basement of the Michigan Republican Party headquarters on December 14th, and signed their names to multiple certificates stating they were the “duly elected and qualified electors for President and Vice President of the United States of America for the State of Michigan.” These false documents were then transmitted to the United States Senate and National Archives in a coordinated effort to award the state’s electoral votes to the candidate of their choosing, in place of the candidates actually elected by the people of Michigan.

As I said in March, no one can predict how the party will respond if Trump’s recklessness starts getting other senior Republicans charged.

We’re about to find out.

Update: Here’s the affidavit behind the charges.