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Will KleptoCapture Catch John Durham, Along with the Russian Spies and Oligarchs?

I’ve been right about a lot of things regarding John Durham’s investigation (though not, apparently, that he would supersede the indictment against Michael Sussmann — maybe he was afraid of getting no-billed if he corrected the things in the indictment he has since discovered to be false?).

Perhaps the most prescient observation I’ve made, though, was that Durham had no fucking clue where to look for evidence related to his already-charged allegations.

I’ve seen reason to believe Durham doesn’t understand the full scope of where he needs to look to find evidence relevant to that case.

I said that in November. Since that time in the Sussmann case, Durham has had to publicly confess he had not:

Effectively, Durham spent most of three years speaking to those who would confirm his conspiracy theories, and not consulting the actual evidence. It took until six months after Durham charged Sussmann before Durham tested Sussmann’s sworn explanation for his Baker meeting — and when he checked, he found the evidence backed Sussmann’s explanation.

Six months after indicting Igor Danchenko, Durham asked to extend discovery another month

It’s that record that makes me so interested in Durham’s second bid to extend deadlines for classified discovery in the Igor Danchenko case.

After Danchenko argued he couldn’t be ready for an April 18 trial date, Durham proposed a March 29 deadline for prosecutors to meet classified discovery; that means Durham originally imagined he’d be done with classified discovery over six weeks ago. A week before that deadline, Durham asked for a six week delay — to what would have been Friday. Danchenko consented to the change and Judge Anthony Trenga granted it. Then on Monday, Durham asked for another extension, this time for another month.

When Durham asked for the first delay, he boasted they had provided Danchenko 60,000 unclassified documents and promised “a large volume” of classified discovery that week (that is, before the original deadline).

To date, the government has produced over 60,000 documents in unclassified discovery. A portion of these documents were originally marked “classified” and the government has worked with the appropriate declassification authorities to produce the documents in an unclassified format.

[snip]

Nevertheless, the government will produce a large volume of classified discovery this week

This more recent filing boasts of having provided just one thousand more unclassified documents and a mere 5,000 classified documents — for a case implicating two known FISA orders and several past and current counterintelligence investigations.

To date, the Government has produced to the defense over 5,000 documents in classified discovery and nearly 61,000 documents in unclassified discovery. The Government believes that the 5,000 classified documents produced to date represent the bulk of the classified discovery in this matter.

Danchenko waited six weeks and got almost nothing new.

See this post for an explanation of all the classified information that Danchenko should be able to demand and the onerous process that using it requires, called Classified Information Procedures Act. Even in November, I showed that Danchenko could likely make a case that he should get discovery from the FBI and NSA, and probably CIA and Treasury. There is no way Durham is getting through this case with just 5,000 classified documents.

As he noted in his opposition to this latest request for an extension, with each request, Durham’s proposed schedule was shrinking the time afforded Danchenko to review classified discovery before providing a list of the classified information he wanted to use at trial (called a CIPA 5 notice), first from 60 days to 40, and then from 40 days to 22.

On March 22, 2022, the Special Counsel filed a Consent Motion to Adjourn the Classified Discovery and CIPA Schedule. Dkt. 44. In his Motion, the Special Counsel sought to extend the deadline to produce classified discovery from March 29, 2022, to May 13, 2022. Id. at 2. The Special Counsel’s motion also sought to extend the dates for various CIPA filings and hearings. Id. Importantly, the Special Counsel’s proposed schedule reduced the amount of time within which Mr. Danchenko had to file his Section 5(a) written notice from approximately 60 days after the close of classified discovery to approximately 40 days.

[snip]

On May 9, 2022, the Special Counsel filed his Second Motion to Adjourn the Classified Discovery and CIPA Schedule. Dkt. 48. In his motion, the Special Counsel now tells the Court that he can provide the outstanding classified discovery by “no later than” June 13, 2022. See id. at 2. He also proposes a June 29, 2022, deadline for Defendant’s Section 5(a) written notice. Id. Therefore, the Special Counsel has essentially asked this Court to enter an Order that will now decrease Mr. Danchenko’s time within which to file his Section 5(a) written notice from approximately 40 days after the close of classified discovery to approximately 22 days.

[snip]

Mr. Danchenko would be substantially prejudiced by the Special Counsel’s proposed schedule because it significantly shortens the time period within which Mr. Danchenko can review any final classified productions and file his CIPA Section 5(a) notice. That is of particular concern to Mr. Danchenko because the Special Counsel has not provided sufficient notice of how much additional classified discovery may be forthcoming other than his “belie[f]” that the “bulk” of the classified discovery has already been produced.

Shrinking Danchenko’s deadlines would make the additional discovery that is still outstanding far less useful. In the Sussmann case, for example, it took over a month for Sussmann’s team to find the documents that disprove Durham’s case buried among 22,000 other documents provided on his extended deadline. So while Durham might be trying to comply with discovery obligations, arguing that the proper solution to his struggles fulfilling discovery is to shrink Danchenko’s own time to review the evidence suggests he’s not doing so in good faith.

Judge Trenga must have agreed. While he granted the government’s request for an extension, he gave Danchenko 42 days to submit his CIPA 5 notice.

A Russian dog named Putin ate Durham’s classified homework

I’ve noted how the post-invasion sanctions on Alfa Bank deprived John Durham of a second investigative team, Alfa Bank’s Skadden Arps lawyers, whose filings a judge observed seemed to be “written by the same people” as Durham’s.

But the aftermath of Putin’s attempt to overthrow Ukraine may be causing Durham even bigger problems in the Danchenko case.

When Durham asked for an extension of his CIPA deadline in the Sussmann case days after Russia extended its invasion of Ukraine, he explained that the people who had to write declarations in support of CIPA (usually agency heads like CIA Director William Burns or NSA Director Paul Nakasone) were busy dealing with the response to Ukraine.

However, the Government’s submission includes not only the Government’s memorandum but also one or more supporting declarations from officials of the U.S. intelligence community. The Government’s review of potentially discoverable material is ongoing, and these officials cannot finalize their declarations until that review is complete.

Moreover, recent world events in Ukraine have further delayed the Government’s review and the officials’ preparation of the supporting declaration(s). As a result, the Government respectfully submits that a modest two-week adjournment request to its CIPA Section 4 filing deadline is appropriate and would not impact any other deadlines, to include the currently scheduled trial date

Effectively, this request moved the CIPA deadline from a week before Durham’s classified discovery deadline to a week after; yet Durham just committed, once again, to finalizing his CIPA 4 submission almost a week before his classified discovery deadline in the Danchenko case.

That’s important because Durham overpromised when he said he could finish a CIPA filing before the discovery deadline. Durham filed a supplement to his CIPA 4 notice on May 7 (nine days before trial) that, unless Judge Cooper ruled orally at a closed hearing last week, remains outstanding. That’s not entirely unusual in a case that relies on classified information, but if Cooper were to rule this classified information was necessary for Sussmann’s defense, it would give Sussmann no time to actually prepare to use it.

Durham cited the Ukraine response again on March 22, a month after Russia launched its failed attempt to take Kyiv, when he asked for an extension on his classified discovery deadline.

However, recent world events in Ukraine have contributed to delays in the production of classified discovery. The officials preparing and reviewing the documents at the FBI and intelligence agencies are heavily engaged in matters related to Ukraine.

Importantly, these people focusing on keeping us safe from Russian aggression rather than, as Durham is, making us safe for Russian aggression, are different than the people cited in the Sussmann case. These aren’t senior officials, but instead those “preparing and reviewing the documents at the FBI and intelligence agencies.” That’s not William Burns, that’s FBI counterintelligence agents, among others.

In last week’s request for an extension, Durham didn’t mention Ukraine, but his reference to “overseas activities” suggests the response to Ukraine remains the problem.

However, recent world events continue to contribute to delays in the processing and production of classified discovery. In particular, some of the officials preparing and reviewing the documents at the FBI and intelligence agencies continue to be heavily engaged in matters related to overseas activities.

Unsurprisingly, Danchenko asked Trenga to require Durham to provide some kind of explanation for why “overseas activities,” probably Ukraine, continue to delay classified discovery in a case criminalizing an attempt to fight Russia’s attack on democracy in 2016.

Moreover, the Special Counsel has failed to adequately explain how “recent world events” (Dkt. 48 at 2) have specifically made it impossible for him to meet his discovery obligations. While it seems unlikely that the same government officials charged with declassifying discovery are also responding to events overseas, it certainly is possible. But, even if that is the case, the Special Counsel must offer more explanation than he has, especially in light of the fact that his prior motion to extend the discovery deadline was based on the events in Ukraine, and the ongoing nature of that conflict must or should have been considered when he requested the May 13 deadline.

Sadly, Trenga didn’t order up an explanation for why this delay, probably Ukraine-related, is causing so many difficulties for Durham’s prosecution of Danchenko.

KleptoCapture threatens at least one and possibly up to three key Durham figures

One reason I would have liked Trenga to force Durham to explain how a dog named Putin ate his classified homework is because the public response to Russia’s attempt to conquer Ukraine has already implicated three figures who are key to Durham’s case. While I need to update it, this post attempts to capture everything that the US government and some partners have done since the expanded invasion.

Dmitry Peskov

Perhaps the response least damaging to Durham’s case — but one that will affect discovery — involves Dmitry Peskov. As I explained in this post, Durham made Peskov’s relationship with Chuck Dolan and Olga Galkina a key part of his indictment against Danchenko.

In his role as a public relations professional, [Dolan] spent much of his career interacting with Eurasian clients with a particular focus on Russia. For example, from in or about 2006 through in or about 2014, the Russian Federation retained [Dolan] and his then-employer to handle global public relations for the Russian government and a state-owned energy company. [Dolan] served as a lead consultant during that project and frequently interacted with senior Russian Federation leadership whose names would later appear in the Company Reports, including the Press Secretary of the Russian Presidential Administration (“Russian Press Secretary-I”), the Deputy Press Secretary (“Russian Deputy Press Secretary-I”), and others in the Russian Presidential Press Department.

[snip]

In anticipation of the June 2016 Planning Trip to Moscow, [Dolan] also communicated with [Peskov] and Russian Deputy Press Secretary-I, both of whom worked in the Kremlin and, as noted above, also appeared in the Company Reports.

[snip]

Additionally, on or about July 13, 2016, [Galkina] sent a message to a Russia-based associate and stated that [Dolan] had written a letter to Russian Press Secretary-1 in support of [Galkina]’s candidacy for a position in the Russian Presidential Administration.

On March 3, the State Department added Peskov to the sanctions list under a 2021 Executive Order President Biden signed, in part, to target those who (among other things), “undermine the conduct of free and fair democratic elections and democratic institutions in the United States and its allies and partners.” On March 11, Treasury added Peskov’s family members to the sanctions list. The package used to sanction Peskov would have been the product of intelligence reports circulated within the US government.

While the legal reason Peskov was sanctioned pertained to his official role in the Russian government (and the lavish lifestyles his family enjoys even with his civil service salary), State also described Peskov as “the chief propagandist of the Russian Federation.” That, by itself, would be unremarkable. But if — as even Durham alludes — Peskov had a role in feeding Galkina disinformation for the Steele dossier, particularly if he crafted disinformation to maximally exploit Michael Cohen’s secret call with Peskov’s office in January 2016, that could be a part of the sanctions package against Peskov. If it were, then it would be centrally important discovery for Danchenko.

Oleg Deripaska

Then there’s Oleg Deripaska. This post lays out in depth the reasons why Danchenko would have reason to demand information on Deripaska’s role in the dossier, including:

  • Evidence about whether Oleg Deripaska was Christopher Steele’s client for a project targeting Paul Manafort before the DNC one
  • All known details of Deripaska’s role in injecting disinformation into the dossier, up through current day
  • Details of all communications between Deripaska and Millian

Given his blissful ignorance of the actual results of the Mueller investigation and the DOJ IG Carter Page investigation, Durham was always going to have a nasty discovery surprise in complying with such requests. Plus, a search last October of two Deripaska-related properties made clear that the most likely source of disinformation in the dossier was under aggressive criminal investigation for sanctions violations.

A recent Bloomberg story reported that that criminal investigation has now been moved under and given the prioritization of the KleptoCapture initiative started in response to the Ukraine war.

Deripaska has been sanctioned since 2018 for his ties to Vladimir Putin, and the seizures at a Washington mansion and New York townhouse linked to him predate the invasion of Ukraine. But the investigation of Deripaska’s assets is now part of an escalating U.S. crackdown on ultra-rich Russians suspected of laundering money and hiding assets to help finance Putin’s regime.

The raids were key steps to unearth information that may determine whether — and how — Deripaska moved money around. Among the mishmash of items taken from the New York and Washington properties were half a dozen works of fine art, sunglasses, hiking boots, housewares, financial records, telephone bills and other documents, according to the people, who asked not to be identified because the investigation hasn’t been made public.

The Deripaska inquiry is now part of a special U.S. Department of Justice task force dubbed “KleptoCapture,” according to New York federal prosecutor Andrew Adams, who is heading up the group.

“As Russia and its aggression continues, we have our eyes on every piece of art and real estate purchased with dirty money,” Deputy Attorney General Lisa Monaco said at a recent news conference.

If DOJ plans on indicting Deripaska — for sanctions violations and anything else on which the statute of limitations has not expired — they might delay discovery cooperation with Durham until they do so. And if such a hypothetical indictment mentioned Deripaska’s role in facilitating the 2016 election interference and/or successful efforts to exploit the dossier to undermine the Russian investigation, it might make Durham’s charges against Danchenko unsustainable, even if he is able to otherwise fulfill his discovery requirements. Durham’s theory of prosecution is that Danchenko is the big villain that led to FBI confusion over the dossier, but Deripaska seems to have had a far bigger role in that.

Sergei Millian

Finally, there’s Sergei Millian, who happened to meet with Deripaska in 2016 at an event, the St. Petersburg International Economic Forum, that played a key role in the election operation.

In the same week Millian met Deripaska, a bunch of cybersecurity experts first started looking for evidence of Russian hacking in DNS data and Igor Danchenko was in Moscow meeting with Chuck Dolan and his other named Steele dossier sources.

As the DOJ IG Report and declassified footnotes make clear, FBI opened a counterintelligence investigation into Millian in October 2016. All the evidence indicates that the investigation did not arise from Crossfire Hurricane and, given that Millian’s ID was hidden in the dossier reports shared with NYFO on their way to HQ, and given that other information on Millian was fed into DC, not NY, was probably predicated completely independent of Crossfire Hurricane.

In addition, we learned that [Millian] was at the time the subject of an open FBI counterintelligence investigation. 302 We also were concerned that the FISA application did not disclose to the court the FBI’s belief that this sub-source was, at the time of the application, the subject of such an investigation. We were told that the Department will usually share with the FISC the fact that a source is a subject in an open case. The OI Attorney told us he did not recall knowing this information at the time of the first application, even though NYFO opened the case after consulting with and notifying Case Agent 1 and SSA 1 prior to October 12, 2016, nine days before the FISA application was filed. Case Agent 1 said that he may have mentioned the case to the OI Attorney “in passing,” but he did not specifically recall doing so. 303

301 As discussed in Chapter Four, [Millian] [redacted]

302 According to a document circulated among Crossfire Hurricane team members and supervisors in early October 2016, [Millian] had historical contact with persons and entities suspected of being linked to RIS. The document described reporting [redacted] that [Millian] “was rumored to be a former KGB/SVR officer.” In addition, in late December 2016, Department Attorney Bruce Ohr told SSA 1 that he had met with Glenn Simpson and that Simpson had assessed that [Millian] was a RIS officer who was central in connecting Trump to Russia.

303 Although an email indicates that the OI Attorney learned in March 2017 that the FBI had an open case on [Millian], the subsequent renewal applications did not include this fact. According to the OI Attorney, and as reflected in Renewal Application Nos. 2 and 3, the FBI expressed uncertainty about whether this sub‐source was Person 1. However, other FBI documents in the same time period reflect that the ongoing assumption by the Crossfire Hurricane team was that this sub‐source was [Millian].

Plus, Mueller found plenty on Millian to raise separate issues of concern.

Given several other counterintelligence cases developed in NYFO, the predication likely had more to do with Russia’s effort to use cultural and other diaspora groups as a way to covertly extend Russian influence.

And in fact, Millian’s group — the Russian American Chamber of Commerce — has already made a cameo appearance in one such prosecution, that against Elena Branson, a complaint that was rolled out in the same week as the sanctions against Peskov.

a. On or about January 30, 2013, BRANSON received an email from an individual using an email address ending in “mail.ru.” Based on my review of publicly available information, I have learned that this individual was a Senior Vice President of the Russian American Chamber of Commerce in the USA. This email had the subject line “Problem.” and the text of the email included, among other things, a portion of the FARA Unit’s website with background on FARA. In response, BRANSON wrote, in part, “I am interested in the number of the law, its text in English[.]” The sender then responded with “Lena, read …” and copied into the email background on FARA and portions of the statute.

This awareness and flouting of registration requirements is the kind of thing that often features in prosecutions for 18 USC 951 violations. And, at least in the case of Branson, the statute of limitations can extend so long as the person in question continues to play a role in US politics, though in Branson’s case, she only fled the country 18 months ago.

If the FBI believed Millian was an unregistered foreign agent who fled to avoid an investigation in 2017, his ongoing involvement in efforts to gin up an investigation into the investigation — particularly claims that, even according to Durham, misinterpreted facts his own prosecutors filed and thereby contributed to death threats against witnesses in the investigation — then it wouldn’t rule out an investigation into Millian himself, an investigation that would have preceded Durham’s reckless reliance on him (or rather, Millian’s unvetted Twitter feed) as a star witness against Danchenko.

Even Millian’s public claim (albeit one offered by someone the FBI considers an embellisher) that he called the White House directly to elicit this investigation could be of interest.

We can now say with great certainty that Durham didn’t check the most obvious sources of evidence against key players involved in the Steele dossier, such as DOJ IG’s backup files in the Carter Page investigation that is the primary focus of Durham’s Danchenko indictment. That makes it highly likely he never bothered to see whether other parts of DOJ considered key players in the Steele dossier to be actual threats to democracy.

One of those key players is undoubtedly Oleg Deripaska. And the renewed focus on Russian influence operations may expand beyond that.

Sedition Is the Foundation on Which the Trump Associate Investigation Builds

As I laid out in this post, I’m impatient with those who claim the government has taken a new direction in the January 6 investigation with subpoenas to people like — most audibly — Ali Alexander. Alexander got a number of journalists who know better to repeat his claim that he was “cooperating” with the investigation rather than merely “complying” with a subpoena. Few of those journalists pointed out real holes in his cover story — including his silence about Roger Stone and Alex Jones, his disavowal of communications with militias before he arrived at the Capitol, his use of cover organizations to get his permits, and his seeming message to co-conspirators that if he once had evidence, it is no longer in his possession.

In his statement, Alexander sought to separate himself from the substance of the investigation, saying he did not coordinate with the Proud Boys and suggesting his contact with the Oath Keepers was limited to accepting an offer for them to act as ushers at an event that never took place: his own permitted event near the Capitol, which didn’t occur because of the mob attack on the Capitol. The Oath Keepers are the subject of conspiracy charges for their roles in breaching the Capitol that day.

“I did not finance the Ellipse equipment. I did not ever talk with the White House about security groups. Any militia working security at the Ellipse belonged to “Women for America First,” not us,” Alexander said. “I did not coordinate any movements with the Proud Boys or even see them that day. I did take Oath Keepers offer to act as ushers for the Area 8 event but all of that was lost in the chaos. I wasn’t in communication with any of the aforementioned groups while I was near the Capitol working to get people away from the building. Lastly, I’m not willing to presume anyone’s guilt.”

“I did nothing wrong and I am not in possession of evidence that anyone else had plans to commit unlawful acts,” Alexander said. “I denounce anyone who planned to subvert my permitted event and the other permitted events of that day on Capitol grounds to stage any counterproductive activities.”

This is classic Roger Stone-schooled disinformation and should be treated as such.

Reporters have, undoubtedly based on really good sourcing, emphasized the existence of a new grand jury focusing on Trump’s associates, and from that, argued it’s a new direction — though as I’ve documented, DOJ has availed themselves of at least six grand juries thus far in this investigation.

But how could an investigation of Alexander’s actions be new if DOJ successfully debunked much of his current cover story — that he was “working to get people away from the building” — last November? Alexander co-traveler Owen Shroyer attempted to offer the same false claim in an attempt to throw out charges — filed in August — against him, but Judge Tim Kelly rejected that attempt on January 20. How could this be a totally new direction if prosecutors would have obtained Alexander’s Stop the Steal listserv as a result of Brandon Straka’s “cooperation” in early 2021? How could it be a new direction if DOJ has gotten guilty pleas from those who went first to the Capitol, then to the East front, and finally breached the building in response to lies about Alexander’s rally permits told by Alex Jones? DOJ has, demonstrably, been laying the groundwork for a subpoena to Alexander for over year.

And it’s not just Alexander. Steps DOJ took over the past year were undoubtedly necessary preconditions to going after Trump’s close associates. Those include:

These are efforts that started in January 2021. Some of the most important — the way DOJ seized Rudy’s comms and got a privilege review without revealing a January 6 warrant — started on Lisa Monaco’s first day in office.

But there’s a more important thing that DOJ probably believed they needed before going after Trump and his close associates: compelling proof that Trump wielded the mob in his effort to obstruct the vote count, obtaining the proof in the yellow boxes, below. That was one of the things I was trying to lay out in this post.

While there are specific things Trump and his associates did that were illegal — the call to Brad Raffensperger, the fake elector certificates, the illegal demand of Mike Pence — many of the rest are only illegal (at least under the framework DOJ is using) if they are tied to Trump’s successful effort to target the mob at American democracy. You first have to prove that Trump fired the murder weapon, and once you’ve established that proof, you can investigate who helped Trump buy the weapon, who helped him aim it, who loaded the gun for him, who was standing behind him with four more weapons to fire if his own shot failed to work.

And this is why I’m interested in the apparent two month process it appears to have taken DOJ to shift its main focus from the work of the January 8, 2021 grand jury, whose work culminated in the January 12, 2022 seditious conspiracy indictment against Stewart Rhodes, and the February 14, 2022 grand jury, the foundational overt act of which was the March 7 conspiracy charge against Enrique Tarrio.

The first grand jury proved that the vast majority of the rioters, whether trespassers or assault defendants, got there via one of three methods:

  • Responding to Trump and Alex Jones’ lies about Trump accompanying the marchers and giving a second speech
  • Acting directly on Trump’s “orders,” especially his December 19 tweet, often bypassing the Ellipse rally altogether
  • Coordinating with one of the militias, especially the Proud Boys

Judge Amit Mehta also seems to believe that the grand jury developed proof that many of those who assaulted cops were aided and abetted by Donald Trump. The first grand jury also proved that of those who — having been led to believe false claims about vote fraud based on over three months of propaganda — had the intent of obstructing the vote count, a great number had the specific goal of pressuring or punishing Mike Pence. While the intent of pressuring Pence came, for some rioters, from militia hierarchies, for most others, it came directly from Trump.

This is my hypothesis about the seeming shift from using the January 8 grand jury as the primary investigative grand jury to launching a new one on February 14. The January 8 grand jury has largely completed its investigation into what caused the riot, how it was orchestrated, who participated; the remaining prosecutions that don’t require and affect the larger picture will be and have been charged via the November 10 grand jury. But by indicting Tarrio and showing, with Charles Donohoe’s cooperation, that everything the Proud Boys did emanated from Tarrio’s orders and, by association, from whatever understanding Tarrio had about the purpose of the riot from his communications with people close to Trump, DOJ and the Valentine’s Day grand jury will move onto the next level of the conspiracy to obstruct the vote count. Again, that’s just a hypothesis — we’ll see whether that’s an accurate read in the weeks ahead. But it’s not a new direction at all. It is the direction that the investigation has demonstrably been headed for over a year.

Update: In a statement pretending the stories about his cooperation were leaked by DOJ, Alexander insists he is not cooperating, but complying.

After consultation with counsel, we provided a statement that established that I was not a target of this grand jury; I haven’t been accused of any criminal wrongdoing; and that I was complying, as required by law, with their probe.

[snip]

Useful idiots on the right, clinging to a New York Times headline that sensationalizes my compliance with a subpoena, will empower the Deep State which planted these stories to give their political investigation more legs to hurt our election integrity movement and Trump’s 2024 prospects. [my emphasis]

The rest of the statement should convince anyone that this is a replay of the same bullshit we saw from Stone and Jerome Corsi in the Mueller investigation.

On Enrique Tarrio’s Complex Password and Other Reasons the January 6 Investigation Can Now Move to Organizer-Inciters

A Wednesday filing in the Proud Boy leadership conspiracy revealed that, between cracking his password and conducting a filter review, DOJ had not been able to access Enrique Tarrio’s phone — which was seized even before the riot he allegedly had a central role in planning — until mid-January.

On January 4, 2021, Tarrio was arrested in Washington, D.C., and charged with destruction of property for his December 12, 2020, burning of a #BLACKLIVESMATTER banner and possession of two large capacity magazines. At the time of his arrest, Tarrio’s phone was seized by law enforcement. The government promptly sought a search warrant for that device in this investigation. Despite diligence, the government was not able to obtain access to Tarrio’s phone until December 2021. Thereafter, a filter team was utilized to ensure that only non-privileged materials were provided to the investigative team. The investigative team did not gain access to the materials on the phone until mid-January 2022, and it has worked expeditiously since that time to review these materials.

I can think of just a few other phones that have been this difficult for FBI to access (those of Zachary Alam and Brandon Fellows are others). The delay means that the very first phone DOJ seized pertaining to the January 6 investigation was one that, to date, has taken the longest to access.

This is the kind of delay — presumably due to the physics involved in cracking a complex password and the due process of a privilege review — that is unavoidable. Yet it stalled DOJ’s efforts in the most pivotal conspiracy case as it tries to move from rioters at the Capitol through organizer-inciters to Trump himself.

The delay in accessing Tarrio’s phone is one thing to keep in mind as you read the multiple reports that DOJ has sent out subpoenas to people who organized the rallies. WaPo reported that these subpoenas first started going out two months ago — so late January, shortly after the time DOJ accessed Tarrio’s phone content. NYT reported that the subpoenas focus on the rallies and the fake electors.

One of the subpoenas, which was reviewed by The New York Times, sought information about people “classified as VIP attendees” at Mr. Trump’s Jan. 6 rally.

It also sought information about members of the executive and legislative branches who had been involved in the “planning or execution of any rally or any attempt to obstruct, influence, impede or delay” the certification of the 2020 election.

And it asked about the effort by Trump supporters to put forward alternate slates of electors as Mr. Trump and his allies were seeking to challenge the certification of the Electoral College outcome by Congress on Jan. 6.

Another person briefed on the grand jury investigation said at least one person involved in the logistics of the Jan. 6 rally had been asked to appear.

None of this is a surprise or unexpected. Dana Nessel formally referred Michigan’s fake electors to DOJ for investigation (the kind of referral that may have been important to DOJ assuming jurisdiction in state elections) on January 18, and Lisa Monaco confirmed DOJ was investigating the fake electors on January 25.

As to the organizers, on December 16, I wrote a piece describing that DOJ would need to turn to “organizer-inciters” next — people like Alex Jones, who had a central role in turning rally-goers who imagined themselves to be peaceful protestors into an occupying force. We know of several other pieces of evidence that would have been important, if not necessary, to lock down before DOJ moved to those organizer-inciters.

For example, DOJ likely first obtained direct information about tensions involving VIPs in Brandon Straka’s first and second FBI interviews in February and March of last year, information that the government claimed during his sentencing provided valuable new leads. Straka was one of those VIPs who expected to have a speaking slot on January 6 only to discover all he was getting was a seat at the front, next to Mike Flynn. Access to his phone would have provided the government comms depicting growing tensions tied to the extremism of Nick Fuentes and Ali Alexander described in this ProPublica article.

“Is Nick Fuentes now a prominent figure in Stop the Steal?” asked Brandon Straka, an openly gay conservative activist, in a November text message, obtained exclusively by ProPublica. “I find him disgusting,” Straka said, pointing to Fuentes’ vehemently anti-LGBT views.

Alexander saw more people and more power. He wrote that Fuentes was “very valuable” at “putting bodies in places,” and that both Jones and Fuentes were “willing to push bodies … where we point.”

Straka, Fuentes and Jones did not respond to requests for comment.

Straka was part of a Stop the Steal listserv on which Michael Courdrey and Alexander were on the day of the riot.

The Stop the Steal group chat shows a reckoning with these events in real time.

“They stormed the capital,” wrote Stop the Steal national coordinator Michael Coudrey in a text message at 2:33 p.m. “Our event is on delay.”

“I’m at the Capitol and just joined the breach!!!” texted Straka, who months earlier had raised concerns about allying with white nationalists. “I just got gassed! Never felt so fucking alive in my life!!!”

Alexander and Coudrey advised the group to leave.

“Everyone get out of there,” Alexander wrote. “The FBI is coming hunting.”

The government described learning new information about Straka as recently as December 8 followed up in a January 2022 interview. Some of this appears to have been a late discovery of his own grift and, possibly, his role in inciting a riot at the TCF center in Michigan. But at sentencing, prosecutors reaffirmed that the sealed contents of his cooperation remained valuable.

Some other existing defendants whose phone and/or cooperation could provide such insight are Simone Gold (who pled guilty in early March but who had not yet done her FBI interview) and Alan Hostetter and Russell Taylor; prosecutors described still providing primary discovery in the latter case the other day, meaning they’re still getting phone contents there, too.

Tarrio’s phone would include comms with many of the people DOJ has turned its focus to; he had known communications with Alex Jones, Ali Alexander, and Cindy Chafian, to say nothing of his close ties to Roger Stone.

In addition to Tarrio’s phone, exploiting that of Stewart Rhodes — seized in May — took some time because he had so many Signal texts that it was an extended process sorting through the inculpatory and exculpatory ones.

The hold up on Rhodes’ phone is one of the things that held up his own arrest and charges for Seditious Conspiracy. In that superseding indictment, DOJ completely hid what new information they had learned about the Oath Keeper ties with the Willard planners.  But the seditious conspiracy charge (along with the cooperation of Mark Grods) appears to have persuaded Joshua James to flip. James’ cooperation would provide lots of new testimony about what Stone and other VIPs were doing on January 5 and 6, including an explanation as to why James felt he needed to call into Mike Simmons to report on what is almost certainly Stone’s anger about the sidelining of his extremist group at the main rally, something clearly at issue in these recent subpoenas.

James would have proffered before he pled guilty (meaning prosecutors would have know what he would say if he did plead), but they would hold off on using his testimony for legal process until he testified before a grand jury in conjunction with his plea on March 2.

Public reporting has revealed that both the January 6 and DOJ investigations have obtained at least some of the documentary footage implicating Tarrio and Stone from the day of the riot.

And if the January 6 committee works like the SSCI investigation into Russia, it could share transcripts from obviously problematic testimony with DOJ. Ali Alexander spent most of day telling a story to the committee that had already been debunked by DOJ.

On the anniversary of January 6, Merrick Garland explained that all of the arrests from the first year had laid the foundation for more complex cases.

We build investigations by laying a foundation. We resolve more straightforward cases first because they provide the evidentiary foundation for more complex cases.

Investigating the more overt crimes generates linkages to less overt ones. Overt actors and the evidence they provide can lead us to others who may also have been involved. And that evidence can serve as the foundation for further investigative leads and techniques.

In circumstances like those of January 6th, a full accounting does not suddenly materialize. To ensure that all those criminally responsible are held accountable, we must collect the evidence.

We follow the physical evidence. We follow the digital evidence. We follow the money.

This is the kind of thing he was talking about: working your way up through Mark Grods to Joshua James to Stewart Rhodes to Roger Stone, taking the time to crack and exploit Tarrio’s phone, exploiting early access to Straka’s comms to get to the organizers. The investigation “aperture” hasn’t changed; what has changed is DOJ has acquired information it needed before it could take the next step.

Lisa Monaco Vows, Again, to Hold All January 6 Perpetrators, at Any Level, Accountable

In a press conference releasing DOJ’s FY 2023 budget ask, Deputy Attorney General Lisa Monaco was asked about the January 6 investigation. She vowed, as Merrick Garland has before, to hold perpetrators — at any level — accountable.

So, look, as we have described, the January 6 investigation is among the most wide-ranging, the most complex that this department has ever undertaken. It reaches nearly every US Attorney’s Office, nearly every FBI field office, we’ve charged more than 750 cases and we’ve charged unprecedented conspiracies and the use of rare tools like the seditious conspiracy statute. Regardless of whatever resources we seek, or get, let’s be very, very clear, we are going to continue to do those cases, we are going to hold those perpetrators accountable, no matter where the facts lead us, as the Attorney General has said, no matter what level.

We will do those cases.

But, again, let’s be clear: Doing those cases draws on resources from across the US Attorneys offices, those same resources that are needed to fight violent crime. Those same resources that are needed to investigate corporate crime across the country. Those same resources that are going to help us enforce our civil rights laws.

So this budget, the FY 23 budget would provide as I noted an unprecedented level of funding to our law enforcement components, to US attorneys offices, to really recognize the priority that we’re placing both on the January 6 investigations and all the US Attorneys, all the priorities that the US Attorneys offices have to face in addition.

Whinger Verbs: To Investigate … To Prosecute … To Indict

Because Alvin Bragg chose not to prosecute Donald Trump, the whingers are out again complaining about Merrick Garland, who last I checked was an entirely different person.

I’ve copied the “Key January 6 posts” from my post showing what reporting on the January 6 investigation — rather than simply fear-mongering to rile up CNN viewers or your Patreon readers — really looks like below.

But for now I’d like to talk about the language the whingers — those complaining that Merrick Garland hasn’t shown people who aren’t looking what DOJ is doing. It’s telling.

Take this post from David Atkins that opines, accurately, that “Refusing to Prosecute Trump Is a Political Act,” but which stumbles in its sub-head — “The evidence is clear. It’s time to prosecute the former president, and Merrick Garland shouldn’t wait.” — and then completely collapses when it asserts that there are just two possible reasons why Merrick Garland has not “prosecuted” Trump.

But there is a deeper question as to why Attorney General Merrick Garland and the DOJ have not prosecuted Trump. No one at the department is talking on the record, but there are only two possible answers—neither of which is satisfactory.

It is possible that prosecutors do not believe there is enough evidence against Trump to convince a jury of his guilt. I’m not a lawyer, but this seems somewhat difficult to believe.

[snip]

The second possibility is that the Department of Justice hasn’t prosecuted Trump because of political pressure. Again, this is speculation. But if Garland is succumbing to either internal or external pressure to avoid charging Trump out of fears of civil conflict, or the appearance of political motivation, that would be a grave error—not prosecutorial discretion but prosecutorial dereliction. Allowing fears of violent reprisals to derail a prosecution would be a grave injustice.

Atkins is wrong about the reasons. I wrote here about why the ten acts of obstruction Mueller identified are almost universally misrepresented by whingers, in part because Billy Barr did real damage to those charges (as he did to other ongoing investigations), and in part because the ten acts that existed in March 2019 are not the acts of obstruction that exist today.

We know part of why Trump hasn’t been charged for political crimes: because Trump ensured the FEC remained dysfunctional and Republicans have voted not to pursue them (something that whingers might more productively spend their time pursuing).

It seems nutty to suggest that Trump should be “prosecuted” already for taking classified documents to Mar-a-Lago when that was referred just weeks ago. It’s also worth considering whether it would be easier to prosecute Trump for obstruction for these actions, tied to one of his other malfeasance, and then consider where investigations related to that malfeasance already exist.

Bizarrely, Atkins doesn’t consider it a possibility that it would take Merrick Garland’s DOJ more than 380 days to prosecute the former President. It took months to just wade through Stewart Rhodes’ Signal texts. It has taken 11 months, so far, to conduct a privilege review of Rudy’s phones (for which DOJ obtained a warrant on Lisa Monaco’s first day on the job). DOJ has six known cooperators in the Oath Keeper case (at least four with direct ties to Roger Stone) and one known cooperator in the Proud Boys case (and likely a bunch more we don’t know about). Particularly in the Oath Keeper investigation, DOJ has been rolling people up serially. But that process has taken longer because of COVID, discovery challenges, and the novelty of the crime.

But that goes to Atkins’ curious choice of the word “prosecute” here. I generally use the verb to refer to what happens after an indictment — the years long process of rebuffing frivolous legal challenges, but for an organized crime network, “prosecute” might also mean working your way up from people like militia members guarding your rat-fucker to the militia leaders planning with your rat-fucker to the rat-fucker to the crime boss.

I think what Atkins actually means, though, is “indict,” or “charge.” But his entire post betrays a fantasy where one can simply arrest a white collar criminal in the act after he has committed the act.

What whingers often say, though, is they want Garland to “investigate” Trump. Then they list a bunch of things — like cooperating witnesses or grand jury leaks or raids or indictments — that we’ve already seen, and insist we would see those things if there were an investigation but take from that that there’s not an investigation even though we see the things that they say we would see if there were an investigation.

Whinger brain confuses me sometimes.

The point, though, is that the language whingers use to describe what they imagine is Garland’s inaction or cowardice (none of these people have done the work to figure out whether that’s really the case), is designed to be impossible. That makes it necessarily an expression of helplessness, because their demand is actually that Trump be disappeared from the political scene tomorrow, and that’s hasn’t happened with multiple investigations implicating him, it sure as hell won’t happen if and when he is indicted, and it wouldn’t happen during a hypothetical extended period during which Trump is prosecuted.

Indeed, I’ve lost count of the number of people who tell me Bannon hasn’t been indicted, even though Bannon has been indicted. It’s just that he’s entitled to due process and in many ways being indicted provides him a way to play the victim.

There are multiple investigations implicating close Trump associates and the January 6 investigation is absolutely designed to incorporate Trump, if DOJ manages to continue building from the crime scene backwards. But that’s not actually what people want. None of these verbs — to investigate, to indict, to prosecute — are the ones that whingers are really hoping to see.

And the verbs they’re hoping to see — perhaps “neutralize” or “disappear” — are not ones that happen as part of due process.

And none of the due process verbs — “investigate,” “indict,” “prosecute” — are likely to work unless people at the same time think of things like “discredit.”


Key January 6 posts

The Structure of the January 6 Assault: “I will settle with seeing [normies] smash some pigs to dust”

DOJ Is Treating January 6 as an Act of Terrorism, But Not All January 6 Defendants Are Terrorists

While TV Lawyers Wailed Impotently, DOJ Was Acquiring the Communications of Sidney Powell, Rudy Giuliani, and (Probably) Mark Meadows

Why to Delay a Mark Meadows Indictment: Bannon Is Using His Contempt Prosecution to Monitor the Ongoing January 6 Investigation

The Eight Trump Associates Whom DOJ Is Investigating

January 6 Is Unknowable

“I’m Just There to Open the Envelopes:” The Select Committee and DOJ Investigations Converge at Mike Pence

Why It Would Be Counterproductive To Appoint a Special Counsel to Investigate January 6

DOJ’s Approximate January 6 Conspiracies

Easy Cases: Why Austin Sarat’s Argument That Trump Should Not Be Prosecuted Is Wrong

How a Trump Prosecution for January 6 Would Work

Judge Mehta’s Ruling that Donald Trump May Have Aided and Abetted Assaults on Cops Is More Important Than His Conspiracy Decision

“Fill the Silence:” On Obstruction, Listen to DOJ and Merrick Garland

She’s “No Angel:” Josh Dawsey’s Nice Little Old Lady Suspected of Crimes to Steal an Election

According to this Josh Dawsey piece on the GOP’s vote to censure Liz Cheney and Adam Kinzinger, Ronna Romney McDaniel claims she decided to support this censure effort after a little old lady friend of hers was subpoenaed by the January 6 Committee.

McDaniel said she was particularly upset when an elderly, recently widowed friend of hers was subpoenaed by the Jan. 6 committee after it was reported the friend was an alternate elector at the campaign’s behest. She declined to name the friend.

This nice little old lady is probably Kathy Berden, one of the two people from Michigan who were subpoenaed. Dean Berden passed away last August.

It took me 3 Google searches to find Berden’s name and Dean’s obituary, and unlike me, Dawsey has the support of an entire newsroom. But rather than ask a follow-up question about the most likely person that McDaniel was discussing, Dawsey just accepted McDaniel’s refusal to name the person and published the GOP Chair’s spin with absolutely no pushback.

That let Dawsey off easy.

Rather than explain that, if it is Berden, she is someone whom Michigan Attorney General Dana Nessel has said obviously broke Michigan law.

There’s no question a troop of faux GOP electors violated the law when they signed on to phony documents and tried to barge into the Michigan State Capitol in an effort to fraudulently award the state’s electoral votes to former President Donald Trump, says Attorney General Dana Nessel.

But, given the scope of what Michigan’s top law enforcement official called a “conspiracy,” Nessel says the criminal prosecution of at least the 16 sham Republican delegates is better suited for federal authorities.

“Seemingly there’s a conspiracy that occurred between multiple states. So if what your ultimate goal is, is not just to prosecute these 16 individuals, but to find out who put them up to this, is this part of a bigger conspiracy at play in order to undermine the legitimate results of the 2020 presidential election, not just in Michigan but nationally? … It creates jurisdictional issues,” Nessel said Tuesday during a virtual news conference.

“I feel confident we have enough evidence to charge if we decide to pursue that. Again, I want to make it clear, I haven’t ruled it out. But for all the reasons I stated, I think that it’s a better idea for the feds to pursue this.”

More importantly, Nessel described this as a “multi-state conspiracy,” something criminally implicating those beyond just the fake electors. Given McDaniel’s position in both Michigan and national politics, McDaniel likely at least knows key details of any such conspiracy, if she wasn’t an active part of it herself.

And it’s not just Michigan. Deputy Attorney General Lisa Monaco has confirmed that federal prosecutors are also investigating suspected crimes associated with the fake certificates.

So Dawsey let McDaniel’s claim that she was taking action to censure (and possibly fund the opponent of) Liz Cheney because of some nice little old lady, without mentioning that that nice little old lady is by definition someone being criminally investigated by the FBI for her role in an effort to steal the election. Dawsey also didn’t mention that that nice little old lady might also have information that would implicate McDaniel personally in that crime.

This is in a larger article that frames this all as some horserace politics — even if “unprecedented” — and not a fight about the aftermath of an attack on the peaceful transfer of power.

Dawsey published text from the resolution against Cheney and Kinzinger, describing them as “two members engage[d] in a Democrat-led persecution of ordinary citizens who engaged in legitimate political discourse,” in paragraph five.

He doesn’t get into the substance of what Republicans are defending with this vote until paragraph nine, which quotes Cheney.

“The leaders of the Republican Party have made themselves willing hostages to a man who admits he tried to overturn a presidential election and suggests he would pardon Jan. 6 defendants, some of whom have been charged with seditious conspiracy. I’m a constitutional conservative and I do not recognize those in my party who have abandoned the Constitution to embrace Donald Trump. History will be their judge. I will never stop fighting for our constitutional republic. No matter what,” Cheney said.

Dawsey never considers what it means that the Chair of the Republican Party says that Democrats may keep the House if a full investigation of these alleged crimes occurs, or even what it means that McDaniel intervened to turn David Bossie’s motion to expel Cheney and Kinzinger from the caucus entirely into one calling for censure, a pretty important point if, like Dawsey, you’re pretending this is just boring old horse race politics.

The RNC will vote today to say that if the Select Committee investigation into January 6, including into Kathy Berden and those suspected of conspiring with her, is allowed to continue, the Democrats may to keep the House, a fairly stunning concession that hints at the depths of the conspiracy.

But instead of telling that story, horse race journalist and WaPo’s full-time Mar-a-Lago stenographer wants to tell the story about nice little old ladies.

Update: Via JR, it turns out Berden has some curious ties with McDaniel.

McDaniel was reelected as chair of the RNC in January 2019, with Trump’s endorsement. Two days earlier, her PAC paid $5,000 to Kathleen Berden, a voting member of the RNC, a volunteer position. Reed said the PAC paid Berden because she “whipped votes” for McDaniel’s reelection. He would not address why McDaniel needed Berden’s services or whether it was appropriate for McDaniel to pay a volunteer RNC voting member to influence fellow voters.

When reached for comment, Berden declined to elaborate on her work for McDaniel.

h/t unhuh who first focused on this paragraph

While TV Lawyers Wailed Impotently, DOJ Was Acquiring the Communications of Sidney Powell, Rudy Giuliani, and (Probably) Mark Meadows

Because TV lawyers continue to wail that DOJ isn’t doing enough to investigate Donald Trump, I want to dumb down this post.

While TV lawyers have been wailing impotently that DOJ has been doing nothing to investigate Donald Trump, DOJ and the National Archives have been acquiring the communications behind some of the most damning events leading up to January 6. DOJ has been doing so even as the TV lawyers guaranteed us they would know if DOJ were doing such things, yet insisting that DOJ was not.

Consider just the events leading up to the December 18, 2020 series of meetings at the White House, involving Sidney Powell, Rudy Giuliani, and Mark Meadows, which some of the same reporters that reported it in real time are reporting as if it were new news.

Sidney Powell

According to the WaPo story on the grand jury investigation into Sidney Powell, a subpoena in that investigation issued in September asked for “communications and other records related to fundraising and accounting” related to Powell’s grift.

Federal prosecutors have demanded the financial records of multiple fundraising organizations launched by attorney Sidney Powell after the 2020 election as part of a criminal investigation, according to a subpoena reviewed by The Washington Post.

The grand jury subpoena, issued in September by the U.S. attorney’s office for the District of Columbia, sought communications and other records related to fundraising and accounting by groups including Defending the Republic, a Texas-based organization claiming 501(c) 4 nonprofit status, and a PAC by the same name, according to the documents and a person familiar with the investigation who spoke on the condition of anonymity to share details of the probe.

As part of the investigation, which has not been previously reported, prosecutors are seeking records going back to Nov. 1, 2020.

The subpoena reviewed by The Post was signed by Assistant U.S. Attorney Molly Gaston, who is also handling politically charged matters related to the Jan. 6 attack on the Capitol, including contempt of Congress charges brought against former Trump adviser Stephen K. Bannon for refusing to testify in front of the House committee investigating the pro-Trump riot. [my emphasis]

While the predication of that investigation seems to be based on Powell’s fundraising — soliciting money from dupes who believe her false claims of a stolen election — because proving that she knew those claims were false would require collecting everything about her efforts to manufacture false claims, it would get the communications explaining how to exploit those false claims as well. Plus, this September subpoena reveals just what DOJ did after moving to an overt phase. Prior to that, DOJ presumably obtained — first — preservation orders and — then — warrants on the emails that, according to Patrick Byrne, Powell claims she sent Rudy about her schemes.

On January 21 (a week before Trump started dangling pardons again), Sidney Powell’s lawyer revealed she is “cooperating” in that investigation, though in contemplating “cooperation” with the January 6 committee, she is reserving privilege claims about “advice” to Donald Trump.

A lawyer for Sidney Powell, a well-known, Trump-connected attorney, acknowledged that her organization’s fundraising connected to the 2020 election is subject to an ongoing federal criminal investigation.

Powell’s lawyer, Howard Kleinhendler, told CNN that his client “is cooperating” with the investigation into her organization, Defending the Republic, by the US Attorney’s Office in the District of Columbia. That cooperation includes “rolling productions” of documents.

[snip]

Still, when the committee asks Powell about communications she had with Trump, that is “going to get a little hairy,” Kleinhendler told CNN.

He said Powell believes that the times Trump called her to ask for legal advice may be covered by attorney-client privilege — even if he never paid her to be his or his campaign’s lawyer. Powell never worked as a lawyer for the former President personally or for the Trump campaign, Kleinhendler said.

“We’ll have to deal with that, and we’ll have to try to discuss with the committee to see how” to handle privilege issues, Kleinhendler said.

Any emails obtained with a non-public warrant would be sent to a taint team that would review Sidney Powell’s privilege claims independently. Of particular interest, after Trump claimed Powell represented him on November 15, 2020, Rudy stated as clearly as he can manage on November 22 that, “Sidney Powell is practicing law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.”

With that statement, Rudy effectively waived privilege for any communications implicating both of them from that date forward, long in advance of that December 18 meeting at which Powell purportedly told him about all the communications she sent him in the interim.

Similarly, most of these events post-date the time, November 25, when Powell can credibly claim to be representing Mike Flynn in an effort to nullify the consequences of his lies and foreign agent work, because that’s when Trump pardoned Flynn. So she may want to claim privilege, but after November 25, all visible basis for that claim was affirmatively gone, and for anything seized from her email provider, she’s likely not going to be involved in making that claim anyway.

As I previously noted, the prosecutor in charge of that investigation dropped off three other January 6 prosecutions by March 29 of last year (though there is at least one other investigation, the obstruction investigation into Capitol Police Officer Michael Riley, on which she was also working in the interim).

Gaston originally pulled three January 6 cases in the investigation’s early days, those of Robert Packer, Robert Gieswein, and Derrick Evans, just the latter of which, involving a then-West Virginia state politician, had any possible public corruption component. But, at a time of immense staffing shortages at DC’s US Attorney’s Office, she dropped off those cases on February 18 (in the case of Packer) and March 29 (in the case of Gieswein and Evans). I’ve long wondered what, in the weeks after Merrick Garland came in, became a higher priority for the DC US Attorney’s leading public corruption prosecutor. We now know one thing she picked up in the interim was the prosecution of Michael Riley, the Capitol Police Officer who advised rioter Jacob Hiles to delete Facebook posts about his role in the riot. And by September, Gaston’s grand jury investigation into Sidney Powell’s grift had started taking overt steps like subpoenaing Powell’s nonprofit.

There continue to be some curious moves that suggest DOJ is shifting prosecutorial resources to unseen investigations in fairly urgent fashion.

Rudy Giuliani

Meanwhile, on January 21 (the same day that CNN reported that Powell was “cooperating” in the DOJ investigation, and so also a week before Trump started dangling pardons again), Special Master Barbara Jones reported on the progress of the privilege review of 16 devices seized from Rudy Giuliani on April 28, 2021.

Here’s a summary of what that review and the earlier known seizures of Rudy’s communications in the Ukraine-related investigation into Rudy:

Because of the temporal scope Judge Paul Oetken approved last year, Jones has completed a privilege review of all communications that date between January 1, 2018 through April 28, 2021 on 8 of the devices seized from Rudy (April 28 was the day the devices were seized). We can’t know what dates during which Rudy was using those 8 devices. It could well be that they were older phones with nothing recent.

But we know that of the communications on the phone with the most texts and chats — the phone designated 1B05 — the government received 99.8% of any communications dated between January 1, 2018 and April 28, 2021 and they received those communications no later than January 21.

Of particular note, Rudy at first tried to claim privilege over 56 items from phone 1B05. He thought better of those claims in 19 cases. And then, after Jones deemed 37 of them not to be privileged, he backed off that claim as well. During a period when Jones and Rudy’s team would have been discussing those 37 items, Judge Oetken issued a ruling saying that the basis for any privilege claims (but not the substance of the communications) would have to be public. After precisely the same kind of ruling in the Michael Cohen Special Master review, Trump backed off his claim of privilege for Cohen’s recording about the hush payments. That may be what persuaded Rudy to withdraw his claim of privilege over those materials here, as well.

And whether or not DOJ has already accessed the communications Rudy conducted during 2020 and 2021 on any of the 16 devices seized from him, we know all the phones Rudy was using in April 2021 are in DOJ’s possession and that Judge Oetken has already approved a privilege review to cover those communications.

Mark Meadows

On December 15, the House voted to send the Mark Meadows contempt referral to DOJ for prosecution. Much to the chagrin of the TV lawyers, DOJ has not taken overt action against Meadows on the criminal contempt of Congress referral.

But as I’ve repeatedly argued, that referral is better considered — and would be more useful to the pursuit of justice — as a referral of Mark Meadows for a violation of the Presidential Records Act and obstruction of the DOJ criminal investigation that he knew to be ongoing.

Among the things included in the referral are:

  • A link to this Politico report quoting “a source close to former President Donald Trump’s ex-chief of staff,” insisting that, “all necessary and appropriate steps either were or are being taken” to ensure that Meadows is not deemed to have violated the Presidential Records Act by failing to share Presidential communications he conducted on his personal email and phone
  • Repeated references to Jonathan Swan’s coverage of the December 18 meeting at which Powell and others discussed seizing the voting machines
  • Indication that Meadows received notice on his personal phone (and so among the records withheld in violation of the PRA) the rally might get violent
  • A citation of a message that Meadows turned over to the committee (but presumably not, originally, to the Archives) in which Alyssa Farah urged, “You guys have to say something. Even if the president’s not willing to put out a statement, you should go to the [cameras] and say, ‘We condemn this. Please stand down.’ If you don’t, people are going to die”
  • Citation of several communications Meadows had with state politicians involved in the fake elector scheme (which Deputy Attorney General Lisa Monaco has confirmed they are investigating), including one where Meadows said, “I love it” and another where he said, “Have a team working on it;” Monaco’s confirmation puts Meadows on notice that his actions are the subject of a federal criminal investigation
  • A claim of election fraud sent to Meadows on his private email (and so among the materials he violated the PRA by withholding)
  • Citation of a tweet Meadows sent on December 21 reporting “‘Several members of Congress just finished a meeting in the Oval Office with President @realDonaldTrump, preparing to fight back against mounting evidence of voter fraud. Stay tuned”
  • Citation of this story describing that Meadows’ late December trip to Georgia to pressure election officials to find more votes could get him in legal trouble; when Fulton County DA Fannie Willis asked for increased protection in the wake of Trump’s calls for riots, she stated explicitly that she was criminally investigating, “former President Donald J. Trump and his associates,” putting Mark Meadows on notice that he’s under criminal investigation there, too

This entire process led Meadows and his attorney to make efforts to comply with the PRA, meaning they’ve been working to provide the communications cited here, as well as those Meadows intended to claim privilege over, to the Archives.

If they can’t comply — and some of the texts in question were sent via Signal, which is really hard to archive, and so may not have been preserved when Meadows sent his own phone back to his provider to be wiped and replaced — then Meadows will not just be in violation of the PRA (which is basically toothless) but also of obstructing the criminal investigation he knew was ongoing when he replaced his phone. Obstruction carries a far stiffer penalty than contempt of Congress does, and it serves as good evidence of involvement in a larger conspiracy.

As Carl Nichols, the Trump appointee presiding over the Steve Bannon criminal contempt case (and therefore likely to preside over one against Meadows if it were ever charged), criminal contempt is for someone from whom you’ve given up getting cooperation, not someone who still might offer useful cooperation.

Meanwhile if Meadows and his lawyer do belatedly comply with Meadows’ obligations under the PRA, it’s quite possible (particularly in the wake of the Supreme Court ruling denying Trump’s attempt to override Joe Biden’s privilege waiver) that DOJ has to do no more to obtain these records than to send a warrant to the Archives. If not, Meadows is now on notice that he is the subject of several criminal investigations (the fake elector one and the Fulton County one), and he may think twice before trying to withhold communications that are already in possession of the Archives.

So whether or not DOJ has these documents in their possession right now, they have the means to get them very easily.

In other words, while TV lawyers have been wailing that DOJ has been doing nothing, DOJ has been acquiring the communications from at least two of the key participants in that December 18 meeting, and the Archives have been acquiring the communications of a third.

Ten Things TV Lawyers Can Do Rather than Whinging about Merrick Garland

I continue to have little patience for the people–many of them paid to expound as lawyers on TV–who spend their time whinging that Merrick Garland is not moving quickly enough to hold Trump accountable rather than spending their time doing other more productive things to protect democracy.

I’m not aware that any of these people has tracked the January 6 investigation closely enough to name those one or two degrees away from the former President who have been charged or are clearly subjects of investigation. Similarly, I’ve seen none do reporting on the current status of Rudy Giuliani’s phones, which after a Special Master review will release a bunch of information to prosecutors to use under any warrant that DOJ might have. Indeed, many of the same people complain that Trump has not been accountable for his Ukraine extortion, without recognizing that any Ukraine charges for Trump would almost certainly have to go through that Rudy investigation. The approval for the search on Rudy’s phones may have been among the first decisions Lisa Monaco made as Deputy Attorney General.

It’s not so much that I’m certain DOJ would prosecute Trump for his serial attempts to overthrow democracy. There are tea leaves that DOJ could get there via a combination of working up from pawns who stormed the Capitol and down from rooks referred from the January 6 Commission. But I’m more exasperated with the claims that there were crimes wrapped with a bow (such as Trump’s extortion of Ukraine) that Garland’s DOJ could have charged on March 11, when he was sworn in. Even the Tom Barrack prosecution, a Mueller referral which reportedly was all set to indict in July 2020, took six months after Biden’s inauguration before it was indicted. The January 6 investigation started less than eleven months ago; eleven months into the Russian investigation, Coffee Boy George Papadopoulos had not yet been arrested and he was still months away from pleading guilty, on a simple false statements charge. We have no idea how much deliberate damage Billy Barr did to other ongoing investigations arising out of the Mueller investigation, but his public actions in the Mike Flynn, Roger Stone, and Paul Manafort cases suggests it is likely considerable. As for the January 6 investigation, as I’ve noted, it took nine months from the time FBI learned that a Capitol Police Officer had warned Jacob Hiles to delete his Facebook posts until the time DOJ indicted Michael Riley on two counts of obstruction. To imagine that DOJ would have already indicted Trump on anything he might be hypothetically under investigation at this point, particularly relating to January 6, is just denial about how long investigations take, even assuming the subject were not the former President with abundant access to free or RNC-provided legal representation.

It’s not that I don’t understand the gravity of the threat. I absolutely share the panic of those who believe that if something doesn’t happen by midterms, Republicans will take over the House and shut every last bit of accountability down. I agree the threat to democracy is grave.

But there is no rule that permits DOJ to skip investigative steps and due process simply because people have invested in DOJ as the last bulwark of democracy, or because the target is the greatest threat to democracy America has faced since the Civil War. DOJ investigations take time. And that is one reason why, if people are hoping some damning indictment will save our democracy, they’re investing their hopes in the wrong place, because an investigation into Trump simply will not be rolled out that quickly. Even if Trump were indicted by mid-terms, the Republicans have invested so much energy into delegitimizing rule of law it’s not clear it would sway Fox viewers or even independent voters.

I can’t tell you whether DOJ will indict Trump. I can tell you that if they do, it will not come in time to be the one thing that saves democracy.

And so, because I believe the panicked hand-wringing is about the least productive way to save democracy, I made a list. Here are ten way that TV lawyers could better spend their time than whinging that Merrick Garland hasn’t indicted Donald Trump yet:

  1. Counter the propaganda effort to treat the Jan 6 defendants as martyrs.
  2. Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years.
  3. Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past.
  4. Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect.
  5. Emphasize the prosecutions/charges/investigations that have or are occurring.
  6. Describe the damage done by Trump’s pardons.
  7. Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law.
  8. Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary
  9. Explain how shoddy John Durham’s indictments are.
  10. Focus on the legal threats to democracy in the states.

Counter the propaganda effort to treat the Jan 6 defendants as martyrs

Whether or not Trump is ever charged with crimes related to January 6, the right wing noise machine has already kicked into gear trying to make it harder to prosecute other culprits for the January 6 riot. They’ve done so by falsely claiming:

  • The event was just a protest like the protests of Brett Kavanaugh’s confirmation, a claim DOJ already debunked, in part by showing that the Kavanaugh protestors who briefly halted his confirmation hearing had been legally admitted.
  • They’re being treated more harshly than those who used violence at BLM or Portland protests. DOJ has submitted multiple filings showing that such claims are based on cherry-picked data that ignore the state charges many of these defendants face, the better quality of evidence against Jan 6ers (in part because they bragged about their actions on social media), and the more heinous goal of the protest involved.
  • Large numbers of non-violent January 6 are being held in pretrial detention. In reality, the overwhelming majority of those detained were charged either in a militia conspiracy or for assaulting cops. The exceptions to this rule are generally people (like Brandon Fellows or Thomas Robertson) who violated pretrial release conditions. Additionally, a good number of those accused of assaulting cops have been released.
  • January 6 defendants are subjected to especially onerous treatment in jail. Many of the conditions they’re complaining about are COVID restrictions imposed on all detainees (though often more restrictive for those who, like a lot of January 6 defendants, choose not to get vaccinated). And in an inspection triggered by January 6 defendant Christopher Worrell’s complaints, the Marshals determined that the other part of the DC jail violated Federal standards, though the part in which the Jan 6ers are held did not.
  • January 6 defendants are just patriots trying to save the country. In reality, of course, these people were attempting to invalidate the legal votes of 81 million Americans.

Again, all these claims are easily shown to be false. But far too many people with a platform are allowing them to go unanswered, instead complaining that DOJ is not doing enough to defend the rule of law. This sustained effort to turn the Jan 6ers into martyrs will achieve real hold unless it is systematically countered.

Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years

As noted above, after Proud Boy assault defendant Worrell complained about the treatment he received in DC jail, the Marshals conducted a snap inspection. They discovered that the older part of the DC jail, one housing other detainees but not Jan 6ers, did not meet Federal standards and have started transferring those detainees to a prison in Pennsylvania.

What has gotten far less attention is that problems with the DC jail have been known for decades. Even though the problems occasionally have gotten passing attention, in general it has been allowed to remain in the inadequate condition the Marshals purportedly discovered anew because a white person complained.

This is an example, then, when a white person has claimed himself to be the victim when, in fact, it’s yet another example of how brown and black people have less access to justice than similarly situated white people.

This development deserves focused attention, most of all because it is unjust. But such attention will flip the script that Jan 6ers are using in an attempt to get sympathy from those who don’t understand the truth.

Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past

There’s a lot of impatience that DOJ hasn’t simply charged January 6 defendants with sedition or insurrection.

Thus far, DOJ has chosen to use a less inflammatory and more flexible statute, obstruction, instead. Obstruction comes with enhancements — for threatening violence or especially obstructive behavior — that DOJ has used to tailor sentencing recommendations.

The wisdom of this approach will soon be tested, as several DC Judges weigh challenges to the application of the statute. If the application is overturned, it’s unclear whether DOJ will charge something else, like sedition, instead.

But DOJ probably chose their current approach for very good reason: because sedition is harder to prove than obstruction, and in the past, white terrorists have successfully beaten such charges. That’s true for a lot of reasons, partly because the absence of a material support statute makes association with a right wing terrorist group harder to prosecute.

A cable personality whom I have great respect for — NBC’s Barb McQuade — knows this as well as anyone, as she was US Attorney when a sedition conspiracy case against the Hutaree collapsed. In that case, DOJ had trouble proving that defendants wanted to overthrow the US government, the kind of evidentiary claim that DOJ will face in January 6 trials, even as currently charged.

There are real challenges to prosecuting white terrorism. Some education on this point would alleviate some of the impatience about the charging decisions DOJ has made.

Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect

In the period between the time Steve Bannon was referred to DOJ for contempt and the time he was charged, a number of commentators used the delay to explain what it takes to get an indictment (against a high profile political figure) that stands a chance of work; one good example is this column by Joyce Vance.

There have been and are numerous examples of similar delays — the Tom Barrack indictment and the Rudy Giuliani Special Master review are two — that offer similar teaching opportunities about the process and protections involved in indicting someone.

Due process takes time. And yet in an era of instant gratification, few people understand why that’s the case. If we’re going to defend due process even while trying to defend our democracy, more education about what due process involves would temper some of the panic.

Emphasize the prosecutions/charges/investigations against Trump that have or are occurring

Given the din calling for prosecution of Donald Trump, you’d think none of his associates had been prosecuted. As Teri Kanefield noted the other day, it would be far better if, instead of saying Trump had suffered no consequences for his actions, there was some focus instead on where he had.

Trump’s business is currently under indictment with multiple investigations into it ongoing. His charity was shut down and fined for self-dealing. Trump’s Inauguration Committee will be civilly tried for paying above market rates to Trump Organization.

His Campaign Manager, his National Security Advisor, his Coffee Boy, his Rat-Fucker, and one of his personal lawyers were found guilty of lying to cover up what really happened with Russia in 2016. Several of these men (as well as a top RNC donor) also admitted they were secretly working for frenemy countries, including (in Mike Flynn’s case), while receiving classified briefings as Trump’s top national security aide. Trump’s biggest campaign donor, Tom Barrack, is being prosecuted for using the access he purchased to Trump to do the bidding of the Emirates. Another of Trump’s personal lawyers, Rudy Giuliani, is under investigation for the same crime, secretly working for another country while claiming to represent the interests of the President of the United States.

The sheer scale of this is especially breathtaking when you consider the projection the GOP has — successfully — focused on Hunter Biden for similar crimes. Even with years of effort and help from Russia, the GOP has not yet been able to prove that the President’s son’s influence peddling or potential tax accounting violated the law. Yet the GOP continues to focus on him relentlessly, even as the long list of Republicans who admit to the same crime continues to grow.

Trump has already proven to be the most corrupt president in some time, possibly ever. And instead of relentless messaging about that, Democrats are complaining about Merrick Garland.

Describe the damage done by Trump’s pardons

One reason why it’s hard to focus on all those criminal prosecutions is because Trump pardoned his way out of it. With the exception of Michael Cohen and Rick Gates, all the people who lied to cover up his Russian ties were pardoned, as was Steve Bannon and others who personally benefitted Trump.

Perhaps because these pardons happened in the wake of January 6, Trump avoided some of the shame he might otherwise have experienced for these pardons. But for several reasons, there should be renewed attention to them.

That’s true, for starters, because Trump’s pardons put the entire country at risk. By pardoning Eddie Gallagher for war crimes, for example, the US risks being treated as a human rights abuser by international bodies. The military faces additional disciplinary challenges. And those who cooperated against Gallagher effectively paid a real cost for cooperating against him only to see him escape consequences.

Paul Manafort’s pardon is another one that deserves renewed attention. That’s true not just because the pardon ended up halting the forfeiture that otherwise would have paid for the Mueller investigation, the cost of which right wingers claimed to care about. It’s true because Trump has basically dismissed the import of industrial scale tax cheating (even while right wingers insinuate that Hunter Biden might have made one error on his taxes). And finally, it’s true because Trump made an affirmative choice that a guy who facilitated Russia’s effort to undermine democracy in 2016, sharing information directly with someone deemed to be a Russian spy, should not be punished for his actions.

Finally, there should be renewed attention on what Trump got for his pardons. Did Steve Bannon and Mike Flynn pay central roles in January 6 in exchange for a pardon?

The US needs some means to prohibit such self-serving pardons like Trump pursued. But in the meantime, there needs to be some effort to shame Trump for relying on such bribes to stay out of prison himself.

Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law

Donald Trump pardoned Steve Bannon for defrauding a bunch of Trump loyalists. According to very recent reporting, Sidney Powell is under investigation (and being abandoned by her former allies) on suspicion she defrauded the thousands of Trump supporters who sent money to support her election conspiracy theories.

Meanwhile, the Republican Party continues to dump money into protecting Trump for his own crimes, even as Republicans lose races that could have benefitted from the money.

However, some RNC members and donors accused the party of running afoul of its own neutrality rules and misplacing its priorities. Some of these same officials who spoke to CNN also questioned why the party would foot the legal bills of a self-professed billionaire who was sitting on a $102 million war chest as recently as July and has previously used his various political committees to cover legal costs. According to FEC filings from August, the former President’s Make America Great Again committee has paid Jones Day more than $37,000 since the beginning of the year, while his Make America Great

Again super PAC has paid a combined $7.8 million to attorneys handling his lawsuits related to the 2020 election.

“This is not normal. Nothing about this is normal, especially since he’s not only a former President but a billionaire,” said a former top RNC official.

“What does any of this have to do with assisting Republicans in 2022 or preparing for the 2024 primary?” the official added.

Bill Palatucci, a national committeeman from New Jersey, said the fact that the RNC made the payments to Trump’s attorneys in October was particularly frustrating given his own plea to party officials that same month for additional resources as the New Jersey GOP sought to push Republican Jack Ciattarelli over the finish line in his challenge to incumbent Democratic Gov. Phil Murphy.

“We sure as heck could have used $121,000,” Palatucci told CNN.

Loyal Trumpsters are the victim of one after another grift, and that should be emphasized to make it clear who is really taking advantage of them.

And one after another former Trump loyalist get themselves in their own legal trouble. One of the messages Michael Cohen tried to share in his testimony before going to prison was that “if [other Republicans] follow blindly, like I have,” they will end up like he did, going to prison. Hundreds of January 6 defendants — some of whom imagined they, too, might benefit from Trump’s clemency (they still might, but they’ll have to wait) — are learning Cohen’s lesson the hard way.

Kleptocracy only benefits those at the top. And yet Trump’s supporters continue to aggressively pursue policies that will make the US more of a kleptocracy.

It’s fairly easy to demonstrate the damage degrading rule of law in exchange for a kleptocracy is. Except average people aren’t going to understand that unless high profile experts make that case.

Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary

The Project Veritas scandal remains obscure and may never amount to charges against PV itself. Yet even as it has become clear that DOJ is investigating theft, key Republicans Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson are trying to shut down the investigation into that theft. Chuck Grassley’s efforts to do so are particularly noxious given that a long-term staffer of his, Barbara Ledeen, is a sometime co-conspirator of Project Veritas.

Republicans have undermined legitimate investigations into Trump, over and over, with little pushback from the press. This is an example where it would seem especially easy to inflict a political cost (especially since Grassley is up for re-election next year).

It would be far more useful, in defending rule of law, to impose political costs on undermining the investigations that commentators are demanding from DOJ than it is to complain (incorrectly) that such investigations aren’t happening. Merrick Garland (however imperfect) is not the enemy of rule of law here, Jim Jordan is.

Explain how shoddy John Durham’s indictments are

One of the complaints that David Rothkopf made in the column that kicked off my latest bout of impatience with the hand-wringing about Garland complained that Garland “is letting” Durham charge those who raise concerns about Trump’s ties to Russia, even while (Rothkopf assumes) ignoring Trump’s own efforts to obstruct the investigation.

We have seen that Garland is letting the highly politicized investigation of special prosecutor John Durham into the conduct of the Trump-Russia investigation continue (by continuing its funding). We therefore have the real prospect that those who sought to look into the Trump-Russia ties that both Mueller and Congressional investigations have demonstrated were real, unprecedented and dangerous might be prosecuted while those who actively sought the help of a foreign enemy to win an election will not be.

As I have noted, both of Durham’s indictments have been shoddy work, hanging charges on Twitter rants and other hearsay evidence.

And while there was some worthwhile criticism of the Michael Sussmann indictment (perhaps because he’s well-connected in DC), Democrats seem to take Durham’s word that Igor Danchenko — and not Christopher Steele or Russian disinformation — is responsible for the flaws in the dossier. Perhaps as a result, the legal experts who could point out how ridiculous it is to rely on a Twitter feed for a key factual claim have remained silent.

With such silence, it is not (just) Garland who “is letting [Duram’s] highly politicized investigation” continue unchecked, but also the experts whose criticism could do something to rein him in.

If the investigation is politicized — and it is — then Durham is a far more appropriate target than Garland.

Focus on the legal threats to democracy in the states

There has, admittedly, been deserved focus on the ways Republicans are chipping away at democratic representation in the states.

But that is where the battle for democracy is being fought. And in most of the states where Trump attempted to undermine the 2020 election, there are follow-on legal issues, whether it’s the investigation into the suspected voting machine theft in Colorado (including into a former campaign manager for Lauren Boebert), a seemingly related investigation in Ohio, or the effort to criminalize efforts to ease voting by seniors during the pandemic in Wisconsin.

Republicans are trying to criminalize democracy. That makes it all the more important to ensure that the call for rule of law remains laser focused on the criminal efforts to cheat to win, if for no other reason than to shame those involved.

The threat to democracy is undoubtedly grave. Republicans are deploying their considerable propaganda effort into legitimizing that attack on democracy (even while suggesting Biden has committed the kind of graft that Trump engaged in non-stop, classic projection).

In the face of that unrelenting effort, expert commentators who support democracy have a choice: They can defend the rule of law and shame those who have denigrated it, or they can spend their time complaining about the guy trying, however imperfectly, to defend it himself. The latter will make Garland less able to do his job, the former will help him do whatever he is willing and able to do.

Update: Added “suspected” to the PV bullet.

Where to Look (or Not) for Signs of Life in Rule of Law

According to the court schedule for this week, January 6 defendants Stacie and John Getsinger will plead guilty on Thursday, no doubt to misdemeanor trespassing. On the surface, their guilty plea will likely resemble those of the dozens of other January 6 misdemeanor pleas that have gone before them, and that may be all it is.

But, along with a handful of others (Adam Johnson and Justin McAuliffe, who both pled guilty last week, are two other examples), these pleas may hint at what kind of larger underlying case DOJ is building. That’s because the Getsingers are witnesses to an important detail about the way January 6 worked: that Alex Jones, whom Trump had put in charge of leading mobs to the Capitol, likewise induced them to go to the top of the East steps of the Capitol with a lie, the false claim that Trump would be speaking there. That’s what led a couple like the Getsingers, who otherwise would never have entered the Capitol, to do so.

This comes even as InfoWars personality Owen Shroyer’s attempts to dodge his own legal accountability have brought more focus on Jones’ actions, described as Person One in DOJ’s opposition to Shroyer’s attempt to dismiss his indictment.

When the body-camera individual asked if he could get Person One there, the officer stated, “Through the hole that you guys breached right there” (emphasis added). When the body-camera individual responded that he didn’t breach anything, the officer retorted, “Well, the whole group that was with you guys.” The officer then pointed again away from the Capitol Building toward the northeast, telling them to leave through the same hole he had just said other rioters had breached. An officer surrounded by people illegally on the Capitol Grounds dismissively waving them away from the Capitol Building and toward another area hundreds of others had already illegally breached does not amount to “telling [the defendant] that … police officers could use his help.”

[snip]

[T]he defendant forced his way to the top of Capitol Building’s east steps with Person One and others and led hundreds of other rioters in multiple “USA!” and “1776!” chants with his megaphone. Harkening to the last time Americans overthrew their government in a revolution while standing on the Capitol steps where elected representatives are certifying a Presidential Election you disagree with does not qualify as deescalation.

[snip]

The video shows the defendant on an elevated platform leading chants with his megaphone on the Capitol Grounds before his first interaction with law enforcement officers; it shows the body-camera individual repeatedly (and unsuccessfully) try to get Person One on the Capitol steps; it shows evidence that the defendant reasonably should have known he was somewhere he was not supposed to be, including by stepping near moved barriers and downed signs; and it shows officers repeatedly refer to the defendant’s group as part of the problem and the “breaches” of various police lines. In fact, at the end of the video, the body-camera individual took matters into his own hands after facing multiple rejections for permission. He turned to the group and asked, “Just get him up there? … But we know we might catch a bang or two.” That is not evidence that the defendant received explicit or implicit permission to go onto the Capitol steps. That is evidence that the defendant is guilty of the crimes he is charged with.

Every single time that Merrick Garland has been asked about the scope of the January 6 investigation, he has said his DOJ will follow the evidence where it leads. These details are tidbits of the evidence in question, visible tidbits that would be largely meaningless unless you understood how the Oath Keepers, Joe Biggs, and his former employer all converged on those East doors just before they were opened from inside.

None of these details — and others like them, such as Johnson’s description of the crowd’s response to Rudy Giuliani and Mo Brooks’ calls for violence — guarantee that Rudy and Brooks will be held responsible.

At the rally, JOHNSON listened to several speeches, including by former President Trump, Rudy Giuliani, and an unknown older member of Congress–the latter of whom JOHNSON heard stating that it was time for action and violence. In response to these comments, JOHNSON saw members of the crowd nodding their heads in agreement.

But if you don’t know these details, you don’t know even what is publicly available about the investigation.

I respect David Rothkopf. I share his concerns about the threat Trump poses to US democracy and the limited time before Republicans likely take control of the House and shut down efforts to guard democracy in the US.

But unlike him I know that the place to learn about DOJ’s January 6 investigation is not by asking Harry Litman or Barb McQuade or AG Gill or Lawrence Tribe or even Dahlia Lithwick — all of whom I respect greatly — how they feel about the general direction of the investigation, but instead to look at the actual records or reading the reports of people actually covering hearings, such as this crucial Josh Gerstein story about how prosecutors responded when Judge Carl Nichols (the former Clarence Thomas clerk who happens to be presiding over Steve Bannon’s case) asked if someone who did what Trump did could be charged with the same obstruction charge DOJ is using with the more serious defendants.

At a hearing on Monday for defendant Garret Miller of Richardson, Texas, Nichols made the first move toward a Trump analogy by asking a prosecutor whether the obstruction statute could have been violated by someone who simply “called Vice President Pence to seek to have him adjudge the certification in a particular way.” The judge also asked the prosecutor to assume the person trying to persuade Pence had the “appropriate mens rea,” or guilty mind, to be responsible for a crime.

Nichols made no specific mention of Trump, who appointed him to the bench, but the then-president was publicly and privately pressuring Pence in the days before the fateful Jan. 6 tally to decline to certify Joe Biden’s victory. Trump also enlisted other allies, including attorney John Eastman, to lean on Pence.

An attorney with the Justice Department Criminal Division, James Pearce, initially seemed to dismiss the idea that merely lobbying Pence to refuse to recognize the electoral result would amount to the crime of obstructing or attempting to obstruct an official proceeding.

“I don’t see how that gets you that,” Pearce told the judge.

However, Pearce quickly added that it might well be a crime if the person reaching out to Pence knew the vice president had an obligation under the Constitution to recognize the result.

“If that person does that knowing it is not an available argument [and is] asking the vice president to do something the individual knows is wrongful … one of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty,” Pearce said.

I can’t tell you whether DOJ will get much further up the chain of responsibility for January 6; part of that necessarily depends on DOJ’s success at obtaining cooperation, of which only that of Oath Keepers has DOJ thus far disclosed. I can’t tell you what DOJ is doing behind the scenes in what Garland describes as “following the money.”

But I can tell you that columns like Rothkopf’s, which complain that Garland’s DOJ is not doing enough to hold Trump accountable while ignoring cases like the Tom Barrack prosecution and the Rudy Giuliani investigation that provide concrete evidence about the kinds of investigative steps Garland’s DOJ has been willing to pursue (the Rudy raid was likely among Lisa Monaco’s first major decisions), likely don’t make it any more likely that Garland will be able to act against the masterminds of January 6 any sooner.

A far better use of Rothkopf’s time and space than bitching that Garland has authorized John Durham’s funding request, for example …

We have seen that Garland is letting the highly politicized investigation of special prosecutor John Durham into the conduct of the Trump-Russia investigation continue (by continuing its funding). We therefore have the real prospect that those who sought to look into the Trump-Russia ties that both Mueller and Congressional investigations have demonstrated were real, unprecedented and dangerous might be prosecuted while those who actively sought the help of a foreign enemy to win an election will not be.

… Would be to ask Harry Litman and Barb McQuade and AG Gill and Lawrence Tribe and Dahlia Lithwick about the specific things that Durham has done — like failing to cut-and-paste with fidelity, relying on a Twitter feed for a key factual assertion, and using materiality arguments to skirt DOJ’s prohibition on publicly commenting on uncharged conduct — that put his prosecutions in violation of DOJ guidelines. Such questions would be readily accessible to all by reading just two indictments (as compared to the full dockets of 675 charged January 6 defendants), it would draw on the considerable expertise of the prosecutors he cited, and it might do something concrete to give Garland the political support he would need to force Durham to hew to DOJ guidelines.

Importantly, it may not be possible for DOJ to move quickly enough against Trump without violating due process (just as one example, the Project Veritas investigation could lead to incredibly damaging revelations about political spying targeting the Biden family, but it’s not entirely clear DOJ respected First Amendment protections).

Which means those with a platform would be better off defending the rule of law — selling independents and moderate Republicans on the import of the January 6 investigation — than whining that it is not working quickly enough.

Update: In his piece, Rothkopf complains, as well, that the only visible investigation into the people around Trump is coming from the January 6 Commission, not DOJ.

More troubling to me though is that the only reason we are hearing of any case being brought against Bannon as a senior coup plotter (or upper middle management in any case) is because Congress is investigating the events of Jan. 6. We have not heard a peep out of the Department of Justice about prosecuting those responsible for inciting, planning or funding the effort to undo the lawful transfer of presidential power to the man the American people elected, Joe Biden.

This morning, Adam Schiff went on CNN. Dana Bash asked him about Judge Amit Mehta’s focus on Donald Trump’s role in the insurrection in a sentencing last week. In response, Schiff described that, “I am concerned that there does not appear to be an investigation, unless it’s being done very quietly” into Trump’s call to Brad Raffensperger to demand he come up with just enough votes for Trump to win the state. But Schiff noted that, “this is not January 6 related — specifically, at least, to the violence of that day.”

Then Bash asked whether Schiff was saying he wanted Biden’s DOJ to be more aggressive. Schiff did not answer “yes.” Instead, he responded to a question about DOJ by talking about the January 6 Commission’s role in holding people accountable.

We are now trying to expose the full facts of the former President’s misconduct, as well as those around him. It is certainly possible that what we reveal in our investigation will inform the Justice Department of other facts that they may not yet be aware of yet. And so we will pursue our role in this, which is to expose the malefactors, to bring about legislation as a result of our investigation, to protect the country. But we will count on the Justice Department to play its role.

That is, when Bash asked specifically if DOJ was being aggressive enough on January 6, Schiff implied that the January 6 Commission played a key role in their efforts.

This is something that has not gotten enough attention: Even if DOJ didn’t ask, the Jan 6 Commission would refer people for any crimes they discovered, as SSCI and HPSCI both referred people to Mueller for lying, lies that led to the prosecution and cooperation of (at least) Michael Cohen and Sam Patten. Schiff knows better than anyone that HPSCI’s investigation was critical to the prosecution of Roger Stone. I also suspect that Steve Bannon’s transcripts were important preparation for Bannon’s grand jury appearance in January 2019, because they laid out the script that the White House had given to him for his testimony. I further suspect that SSCI obtained — and then shared — testimony from certain witnesses that Mueller could not otherwise get.

Trump’s pseudo-cooperation with the Mueller investigation, waiving privilege for the investigation but not any prosecution, likely was one hinderance to holding him accountable. And on this investigation, DOJ would be even more constrained, because it could face Executive Privilege claims and definitely would face Speech and Debate protections.

There has been almost no discussion of how closely Bennie Thompson and Liz Cheney are working with DOJ to ensure that the Jan 6 Commission doesn’t impede DOJ’s Jan 6 investigation, but it must be happening.

Similarly, there has been no discussion of obvious witnesses that the Jan 6 Commission has not (yet) subpoenaed, such as Lin Wood or Rudy Giuliani, the latter of whom DOJ seized phones from in another investigation in April.

Finally, there has been little discussion of how DOJ moved to have Executive Privilege waived for Congress just as the Jan 6 Commission got up and running.

DOJ only released its new contact policy — under which the request for a privilege determination may have been passed — on July 21. I’m curious whether the request for a  waiver of executive privilege waiver came after that. Executive privilege considerations were a key limitation on the Mueller investigation overseen in its final days partly by Rosen himself.

At least as interesting, however, is that DOJ sent the letter just one day before DOJ submitted a court filing in the Eric Swalwell lawsuit — speaking of members of Congress but using more generalized language — arguing that no federal officials can campaign in their official capacity and further noting that attacking one’s employer is not within the scope of someone’s job description.

DOJ is using that same waived privilege for the documents responsive to the Jan 6 Commission requests at the National Archive.

That is, DOJ is supporting the efforts of a co-equal branch of government to obtain testimony and records that that co-equal branch of government has a broader claim to than DOJ itself.

And Schiff, who understands better than anyone how HPSCI and DOJ worked together on the Stone prosecution, described, after first answering a question that he distinguished from January 6, then addressing January 6 directly by saying that “our role in this[] is to expose the malefactors,” and “we will count on the Justice Department to play its role” if and when the Commission “inform[s] the Justice Department of other facts that they may not yet be aware of yet.”

Yes, the January 6 Commission has a very short window in which to work. Yes, Congress is taking steps that DOJ does not appear to be taking. But that doesn’t mean that DOJ is not obtaining that evidence.

DOJ Put Someone Who Enabled Sidney Powell’s Lies — Jocelyn Ballantine — in Charge of Prosecuting the Proud Boys

Because of Joe Biggs’ role at the nexus between the mob that attacked Congress and those that orchestrated the mob, his prosecution is the most important case in the entire January 6 investigation. If you prosecute him and his alleged co-conspirators successfully, you might also succeed in holding those who incited the attack on the Capitol accountable. If you botch the Biggs prosecution, then all the most important people will go free.

Which is why it is so unbelievable that DOJ put someone who enabled Sidney Powell’s election season lies about the Mike Flynn prosecution, Jocelyn Ballantine, on that prosecution team.

Yesterday, at the beginning of the Ethan Nordean and Joe Biggs hearing, prosecutor Jason McCullough told the court that in addition to him and Luke Jones, Ballantine was present at the hearing for the prosecution. He may have said that she was “overseeing” this prosecution. (I’ve got a request for clarification in with the US Attorney’s office.)

Ballantine has not filed a notice of appearance in the case (nor does she show on the minute notice for yesterday’s hearing). In the one other January 6 case where she has been noticeably involved — electronically signing the indictment for Nick Kennedy — she likewise has not filed a notice of appearance.

Less than a year ago when she assisted in DOJ’s attempts to overturn the Mike Flynn prosecution, Ballantine did three things that should disqualify her from any DOJ prosecution team, much less serving on the most important prosecution in the entire January 6 investigation:

  • On September 23, she provided three documents that were altered to Sidney Powell, one of which Trump used six days later in a packaged debate attack on Joe Biden
  • On September 24, she submitted an FBI interview report that redacted information — references to Brandon Van Grack — that was material to the proceedings before Judge Emmet Sullivan
  • On October 26, she claimed that lawyers for Peter Strzok and Andrew McCabe had checked their clients’ notes to confirm there were no other alterations to documents submitted to the docket; both lawyers refused to review the documents

After doing these things in support of Bill Barr’s effort to undermine the Flynn prosecution (and within days of the Flynn pardon), Ballantine was given a confidential temporary duty assignment (it may have been a CIA assignment). Apparently she’s back at DC USAO now.

Three documents got altered and another violated Strzok and Page’s privacy

As a reminder, after DOJ moved to hold Mike Flynn accountable for reneging on his plea agreement, Billy Barr put the St. Louis US Attorney, Jeffrey Jensen, in charge of a “review” of the case, which DOJ would later offer as its excuse for attempting to overturn the prosecution.

On September 23, Ballantine provided Powell with five documents, purportedly from Jensen’s investigation into the Flynn prosecution:

I outlined the added date on the first set of Strzok notes here:

There was never any question that the notes could have been taken no earlier than January 5, because they memorialized Jim Comey’s retelling of a meeting that other documentation, including documents submitted in the Flynn docket, shows took place on January 5. Even Chuck Grassley knows what date the meeting took place.

But DOJ, while using the notes as a central part of their excuse for trying to overturn the Flynn prosecution, nevertheless repeatedly suggested that there was uncertainty about the date of the notes, claiming they might have been taken days earlier. And then, relying on DOJ’s false representations about the date, Sidney Powell claimed they they showed that Joe Biden — and not, as documented in Mary McCord’s 302, Bob Litt — was the one who first raised the possibility that Flynn may have violated the Logan Act.

Strzok’s notes believed to be of January 4, 2017, reveal that former President Obama, James Comey, Sally Yates, Joe Biden, and apparently Susan Rice discussed the transcripts of Flynn’s calls and how to proceed against him. Mr. Obama himself directed that “the right people” investigate General Flynn. This caused former FBI Director Comey to acknowledge the obvious: General Flynn’s phone calls with Ambassador Kislyak “appear legit.” According to Strzok’s notes, it appears that Vice President Biden personally raised the idea of the Logan Act.

During the day on September 29, Powell disclosed to Judge Sullivan that she had spoken to Trump (as well as Jenna Ellis) about the case. Then, later that night, Trump delivered a prepared attack on Biden that replicated Powell’s false claim that Biden was behind the renewed investigation into Flynn.

President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.

In a matter of days, then, what DOJ would claim was an inadvertent error got turned into a campaign attack from the President.

When DOJ first confessed to altering these notes, they claimed all the changes were inadvertent.

In response to the Court and counsel’s questions, the government has learned that, during the review of the Strzok notes, FBI agents assigned to the EDMO review placed a single yellow sticky note on each page of the Strzok notes with estimated dates (the notes themselves are undated). Those two sticky notes were inadvertently not removed when the notes were scanned by FBI Headquarters, before they were forwarded to our office for production. The government has also confirmed with Mr. Goelman and can represent that the content of the notes was not otherwise altered.

Similarly, the government has learned that, at some point during the review of the McCabe notes, someone placed a blue “flag” with clear adhesive to the McCabe notes with an estimated date (the notes themselves are also undated). Again, the flag was inadvertently not removed when the notes were scanned by FBI Headquarters, before they were forwarded to our office for production. Again, the content of the notes was not otherwise altered.

There are multiple reasons to believe this is false. For example, when DOJ submitted notes that Jim Crowell took, they added a date in a redaction, something that could in no way be inadvertent. And as noted, the January 5 notes had already been submitted, without the date change (though then, too, DOJ claimed not to know the date of the document).

But the most important tell is that, when Ballantine sent Powell the three documents altered to add dates, the protective order footer on the documents had been removed in all three, in the case of McCabe’s notes, actually redacted. When she released the re-altered documents (someone digitally removed the date in the McCabe notes rather than providing a new scan), the footer had been added back in. This can easily be seen by comparing the altered documents with the re-altered documents.

The altered January 5, 2017 Strzok notes, without the footer:

The realtered January 5, 2017 Strzok notes, with the footer:

The second set of Strzok notes (originally altered to read March 28), without the footer:

The second set of Strzok notes, with the footer.

The altered McCabe noteswith the footer redacted out:

The realtered McCabe notes, with the footer unredacted:

This is something that had to have happened at DOJ (see William Ockham’s comments below and this post for proof in the metadata that these changes had to have been done by Ballantine). The redaction of the footers strongly suggests that they were provided to Powell with the intention of facilitating their further circulation (the other two documents she shared with Powell that day had no protective order footer). In addition, each of these documents should have a new Bates stamp.

DOJ redacted Brandon Van Grack’s non-misconduct

On September 24, DOJ submitted a report of an FBI interview Jeffrey Jensen’s team did with an Agent who sent pro-Trump texts on his FBI-issued phone, Bill Barnett. In the interview, Barnett made claims that conflicted with actions he had taken on the case. He claimed to be unaware of evidence central to the case against Flynn (for example, that Flynn told Sergey Kislyak that Trump knew of something said on one of their calls). He seemed unaware of the difference between a counterintelligence investigation and a criminal one. And he made claims about Mueller prosecutors — Jeannie Rhee and Andrew Weissmann — with whom he didn’t work directly. In short, the interview was obviously designed to tell a politically convenient story, not the truth.

Even worse than the politicized claims that Barnett made, the FBI or DOJ redacted the interview report such that all reference to Brandon Van Grack was redacted, substituting instead with the label, “SCO Atty 1.” (References to Jeannie Rhee, Andrew Weissmann, and Andrew Goldstein were not redacted; there are probable references to Adam Jed and Zainab Ahmad that are not labeled at all.)

The result of redacting Van Grack’s name is that it hid from Judge Sullivan many complimentary things that Barnett had to say about Van Grack:

Van Grack’s conduct was central to DOJ’s excuse for throwing out the Flynn prosecution. Powell repeatedly accused Van Grack, by name, of engaging in gross prosecutorial misconduct. Yet the report was submitted to Judge Sullivan in such a way as to hide that Barnett had no apparent complaints about Van Grack’s actions on the Flynn case.

I have no reason to believe that Ballantine made those redactions. But according to the discovery letter she sent to Powell, she sent an unredacted copy to Flynn’s team, while acknowledging that the one she was submitting to the docket was redacted. Thus, she had to have known she was hiding material information from the Court when she submitted the interview report.

Ballantine falsely claimed Strzok and McCabe validated their notes

After some of these alterations were made public, Judge Sullivan ordered DOJ to authenticate all the documents they had submitted as part of their effort to overturn the Flynn prosecution. The filing submitted in response was a masterpiece of obfuscation, with three different people making claims while dodging full authentication for some of the most problematic documents. In the filing that Ballantine submitted, she claimed that Michael Bromwich and Aitan Goelman, lawyers for McCabe and Strzok, “confirmed” that no content was altered in the notes.

The government acknowledges its obligation to produce true and accurate copies of documents. The government has fully admitted its administrative error with respect to the failure to remove three reviewer sticky notes containing estimated date notations affixed to three pages of undated notes (two belonging to former Deputy Assistant Director Peter Strzok, and one page belonging to former Deputy Director Andrew McCabe) prior to their disclosure. These dates were derived from surrounding pages’ dates in order to aid secondary reviewers. These three sticky notes were inadvertently not removed when the relevant documents were scanned by the FBI for production in discovery. See ECF 259. The government reiterates, however, that the content of those exhibits was not altered in any way, as confirmed by attorneys for both former FBI employees. [underline original]

According to an email Bromwich sent Ballantine, when Ballantine asked for help validating the transcripts DOJ did of McCabe’s notes, McCabe declined to do so.

I have spoken with Mr. McCabe and he declines to provide you with any information in response to your request.

He believes DOJ’s conduct in this case is a shocking betrayal of the traditions of the Department of the Justice and undermines the rule of law that he spent his career defending and upholding. If you share with the Court our decision not to provide you with assistance, we ask that you share the reason.

We would of course respond to any request that comes directly from the Court.

And according to an email Goelman sent to Ballantine, they said they could not check transcriptions without the original copies of documents.

Sorry not to get back to you until now.  We have looked at the attachments to the email you sent yesterday (Sunday) afternoon.  We are unable to certify the authenticity of all of the attachments or the accuracy of the transcriptions.  To do so, we would need both more time and access to the original notes, particularly given that U.S. Attorney Jensen’s team has already been caught altering Pete’s notes in two instances.  However, we do want to call your attention to the fact that Exhibit 198-11 is mislabeled, and that these notes are not the notes of Pete “and another agent” taken during the Flynn interview.

Additionally, we want to register our objection to AUSA Ken Kohl’s material misstatements to Judge Sullivan during the September 29, 2020, 2020, [sic] telephonic hearing, during which Mr. Kohl inaccurately represented that Pete viewed himself as an “insurance policy” against President Trump’s election.

I have no reason to believe the content was altered, though I suspect other things were done to McCabe’s notes to misrepresent the context of a reference in his notes to Flynn. But not only had McCabe and Strzok not validated their notes, but they had both pointedly refused to. Indeed, during this same time period, DOJ was refusing to let McCabe see his own notes to prepare for testimony before the Senate Judiciary Committee. Nevertheless, Ballantine represented to Judge Sullivan that they had.

It baffles me why DOJ would put Ballantine on the most important January 6 case. Among other things, the conduct I’ve laid out here will make it easy for the defendants to accuse DOJ of similar misconduct on the Proud Boys case — and doing just that happens to be Nordean’s primary defense strategy.

But I’m mindful that there are people in DC’s US Attorney’s Office (not Ballantine) who took actions in the past that may have made the January 6 attack more likely. In a sentencing memo done on Barr’s orders, prosecutors attempting to minimize the potential sentence against Roger Stone suggested that a threat four Proud Boys helped Roger Stone make against Amy Berman Jackson was no big deal, unworthy of a sentencing enhancement.

Second, the two-level enhancement for obstruction of justice (§ 3C1.1) overlaps to a degree with the offense conduct in this case. Moreover, it is unclear to what extent the defendant’s obstructive conduct actually prejudiced the government at trial.

Judge Jackson disagreed with this assessment. In applying the enhancement, she presciently described how dangerous Stone and the Proud Boys could be if they incited others.

Here, the defendant willfully engaged in behavior that a rational person would find to be inherently obstructive. It’s important to note that he didn’t just fire off a few intemperate emails. He used the tools of social media to achieve the broadest dissemination possible. It wasn’t accidental. He had a staff that helped him do it.

As the defendant emphasized in emails introduced into evidence in this case, using the new social media is his “sweet spot.” It’s his area of expertise. And even the letters submitted on his behalf by his friends emphasized that incendiary activity is precisely what he is specifically known for. He knew exactly what he was doing. And by choosing Instagram and Twitter as his platforms, he understood that he was multiplying the number of people who would hear his message.

By deliberately stoking public opinion against prosecution and the Court in this matter, he willfully increased the risk that someone else, with even poorer judgment than he has, would act on his behalf. This is intolerable to the administration of justice, and the Court cannot sit idly by, shrug its shoulder and say: Oh, that’s just Roger being Roger, or it wouldn’t have grounds to act the next time someone tries it.

The behavior was designed to disrupt and divert the proceedings, and the impact was compounded by the defendant’s disingenuousness.

The people at DOJ who claimed that this toxic team was not dangerous in the past may want to downplay the critical role that Stone and the Proud Boys played — using the same kind of incendiary behavior — in the January 6 assault.

Whatever the reason, though, it is inexcusable that DOJ would put someone like Ballantine on this case. Given Ballantine’s past actions, it risks sabotaging the entire January 6 investigation.

DOJ quite literally put someone who, less than a year ago, facilitated Sidney Powell’s lies onto a prosecution team investigating the aftermath of further Sidney Powell lies.

Update: DC USAO’s media person refused to clarify what Ballantine’s role is, even though it was publicly acknowledged in court.

We are not commenting on cases beyond what is stated or submitted to the Court. We have no comment in response to your question.

Update: Added links to William Ockham’s proof that Ballantine made the realteration of the McCabe notes.

Update: One more point on this. I am not claiming here that anyone at DOJ is deliberately trying to sabotage the January 6 investigation, just that putting someone who, less than a year ago, made multiple representations to a judge that could call into question her candor going forward could discredit the Proud Boys investigation. I think it possible that supervisors at DC USAO put her on the team because they urgently need resources and she was available (possibly newly so after the end of her TDY). I think it possible that supervisors at DC USAO who are also implicated in Barr’s politicization, perhaps more closely tied to the intervention in the Stone case, put her there with corrupt intent.

But it’s also important to understand that up until February 2020, she was viewed as a diligent, ruthless prosecutor. I presume she buckled under a great deal of pressure after that and found herself in a place where competing demands — her duty of candor to the Court and orders from superiors all the way up to the Attorney General — became increasingly impossible to square.

Importantly, Lisa Monaco’s chief deputy John Carlin, and probably Monaco herself, would know Ballantine from their past tenure in the National Security Division as that heretofore ruthless national security prosecutor. The only mainstream outlet that covered anything other than DOJ’s admission they had added post-its to the notes was Politico. And the instinct not to punish career employees like Ballantine would mean what she would have avoided any scrutiny with the transition. So her assignment to the case is not itself evidence of an attempt to sabotage the prosecution.