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“Nonzero:” On Evidence-Based Investigations and Rudy Giuliani’s Devices

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After the WaPo published its 8,000-word story purporting to describe the January 6 investigation, and after I pointed out key gaps and problems with it, Carol Leonnig reached out to me to find out why I found WaPo’s silence about Rudy Guiliani’s devices so problematic.

Even after my post, Leonnig still understood the exploitation of Rudy’s devices to be limited to the FARA investigation out of SDNY. “I hear you re search of Rudy phones but to be clear that is for probe of lobbying law violations – not a plan to look at Trump orbit plot to overturn elex results,” she described.

To be clear: Her understanding was correct with regards to the known warrant used to seize Rudy’s devices. It was badly wrong with regards to the process used to review them, something that has been public for a long time.

As I first laid out over 18 months ago, after seizing Rudy’s devices, SDNY successfully requested that the Special Master process review everything on Rudy’s devices between January 1, 2018 through the date of seizure, irrespective of scope:

  • April 21, 2021 (Lisa Monaco’s first day on the job): DOJ approved a warrant for Rudy’s devices in SDNY FARA investigation
  • April 29, 2021 (the day after seizure): Citing the Michael Cohen case, SDNY asked Judge Paul Oetken to appoint Special Master
  • August 18, 2021: Special Master Barbara Jones notices a dispute about the range of privilege review, sets schedule for briefing
  • September 3, 2021: SDNY generously offers to limit Special Master review to files post-dating January 1, 2018 through date of seizure
  • September 16, 2021: Judge Oetken rules that the Special Master shall review for privilege all content between January 1, 2018 and date of seizure

Oetken’s decision pertained to more than just timeline. It made clear that the government would conduct any responsiveness review.

First, this Court appointed the Special Master for the purposes of reviewing the materials for privilege, not for responsiveness. While a general exclusion [of material that pre-dated January 1, 2018] as proposed by the Government is appropriate, the imposition of detailed date restrictions or other responsiveness criteria would risk further delay in the review process.

Second, the warrants themselves do not contemplate that an arm of the Court, rather than Government investigators, would conduct a review of the warrant materials for responsiveness, nor is the Court aware of any legal authority mandating such review. To be sure, as the Government acknowledges, the warrants must be executed according to their terms. But the fact that the Court has appointed a Special Master for privilege review in this circumstance does not dictate that such review be expanded to review for responsiveness.

Once this Special Master privilege review finished, then, any content responsive to any probable cause warrant targeting those devices would be available to the government without further privilege review.

Note, when DOJ suggested Barbara Jones to serve as Special Master in Trump’s Florida Special Master matter last September, Trump raised a specific and secret objection to her, though he had raised no such objections after her review of Michael Cohen’s devices in 2018.

Based on that series of decisions — starting with a decision made on Lisa Monaco’s first day, followed by a successful argument that prosecutors, not a Special Master, would do any scope review for responsiveness with warrants (the reverse process as used for James O’Keefe’s phone) — DOJ guaranteed that the January 6 investigation could immediately access Rudy’s content, either based off a plain view discovery of evidence pertaining to a crime (which is how the investigation into Michael Cohen evolved from a FARA investigation to include the hush money payment that is the basis of Alvin Bragg’s indictment), or later warrants obtained as the January 6 investigation progressed. If DOJ obtained a new January 6 specific warrant, Rudy — and any journalists he wanted to complain to — would get no notice, because (as happened repeatedly in the Cohen investigation) the new warrant would be served internally.

DOJ secured the availability of Rudy’s content (pending a new warrant) by September 2021, before Matthew Graves was confirmed and before Thomas Windom was brought in to head up an investigation focusing on Trump’s people, personnel changes that WaPo claims drove the renewed focus on Trump.

In its 8,000-word piece, WaPo raised legitimate concerns about evidence being deleted as DOJ investigated. But within a week of Monaco’s start date, DOJ had preserved the content of Rudy’s devices and started a process that would eventually make it easier for January 6 investigators to access it.

To be sure, we don’t know when or how (via plain view or via a January 6 specific warrant) Rudy’s content was shared with January 6 investigators.

We do know that Special Master Jones prioritized the content on phones that were in current use in April 2021. The first 8 devices she reviewed all included content through seizure. This table shows all the content known to be seized by SDNY; the red rectangle shows the devices, clearly including Rudy’s main phone, Device 1B05, that were reviewed through seizure date.

And, to the limited extent that a sworn declaration from Rudy is reliable, we know that the devices Jones reviewed included all of Rudy’s January 6 content. According to a declaration Rudy submitted in the Ruby Freeman lawsuit, seven of those personal devices seized using a warrant obtained on Lisa Monaco’s first day included all the digital content pertaining to January 6 in his possession at the time.

Apple iPhone 11 ProMax

Apple MacBook Model A22251

Apple iPhone 11 Pro Max

Apple iPad Model: A1709

Apple iPad Model: A2013

Blackberry Model: RGVI6ILW

Apple iPad Model: A1395

[snip]

The TrustPoint One documents consist of all documents that were extracted from the electronic devices taken by the DOJ in April 2021 when the DOJ seized those devices.

The content from the first seven of devices Rudy was currently using was shared with SDNY by November 2, 2021, still before Graves was sworn in as US Attorney in DC. Jones started turning over content from what appears to be Rudy’s main phone on November 11, 2021, with the balance turned over on January 19, 2022.

Again, this information would have been turned over to SDNY, not DC USAO, and we don’t know when and via what means January 6 related content got passed on to DC. But whenever it was, it was available because of decisions made well before WaPo’s timeline, decisions that would have involved approval from people WaPo described as “slow” and “cautious.”

Whatever else it did, the way DOJ did the Special Master review of Rudy’s devices shaved nine months off any investigation pertaining to Trump’s personal lawyer, one of the most central players in Trump’s coup attempt, because whenever DC developed probable cause to access that content, the privilege review would already be done. By comparison, the privilege review for John Eastman and Jeffrey Clark’s content began on June 17, 2022, and NYT describes that privilege reviews of people like Mark Meadows and Cleta Mitchell started after July 2022.

One reason it is likely that Rudy’s content — and not just pressure generated in January 2022 from the January 6 Committee, as WaPo quotes an anonymous source claiming — drove the fake electors investigation is the focus of the investigation. The first fake elector warrants sent in May 2022 (not June, as WaPo implies) as well as those sent in June and November all included Victoria Toensing and Joe DiGenova. Rudy’s known interviews always list the couple as key members of his post-election team. But no one else seems to have cared or figured out what they did. After Rudy listed them in his January 6 interview, the Committee never once raised them again.

Q. Who was on your team at that point [November 5]?

A. You know, it was put out in a press release some days later. So it’s hard to know exactly who joined. Very early on, there was Jenna Ellis, Vicki Toensing, Joseph DiGenova, Boris Epshteyn. That was the main team. We were joined by Christian Bobb about 5 days later, and by — by Katherine Friess, maybe 3 or 4 days later.

So if you look at the list of the team — now, it took about — that was the original team, meaning in the first 3, 4, 5 days. Within about a week or two, I can give you all the names if you want them.

Q. Who else joined the team after that group you just mentioned, lawyers? I’m just talking about lawyers for the moment.

A. Just lawyers, okay. So Toensing, DiGenova, Bob[b], Friess, Ellis, Epshteyn.

Neither appears to have been interviewed; neither is mentioned in the final report. Nor did they get much focus in the investigation. Christina Bobb and Eric Herschmann mentioned them in passing. Sidney Powell described that they may have been at a White House meeting on November 8. Alex Cannon was asked about an urgent demand that the campaign provide Toensing with a paralegal on November 29. Jacqueline Kotkiewicz, a campaign researcher, described doing at least one project for Toensing, the only substance of which that she could remember was a fight over whether “nonzero” meant “zero” or “a number greater than zero.” Cleta Mitchell described connecting Toensing with John Eastman and admitted having, “quite a number of calls with Victoria,” but couldn’t remember the substance. According to an email Mitchell reviewed, Toensing then shared Eastman’s whack theories with state legislators.

Nothing that came from the January 6 Committee explains why Toensing and DiGenova would be a persistent focus of DOJ’s fake electors investigation. But they were. (As I have noted, Boris Epshteyn and Bernie Kerik were also a focus of DOJ subpoenas before they were mentioned in J6C coverage, but unlike Toensing and DiGenova, they soon became a public focus of J6C.)

As far as is public, Toensing’s phone, which was seized in the same week as Rudy’s devices, was only reviewed for the period covered by the FARA warrants, ending in 2019 (though the content would have been preserved if DOJ ever later had an interest that post-dated that). Additionally, she belatedly invoked spousal privilege over all communications on her seized phone with DiGenova.

But Rudy’s phones — or possibly even the Sidney Powell prong of the investigation that was overt by September 2021, another thing WaPo doesn’t mention — might explain why DOJ’s fake elector investigation doesn’t look like the version that got told in the press or the one told by the January 6 Committee, starting a month later.

There’s one other thing. As I laid out here, Ruby Freeman’s lawyers are pursuing further testimony from Kerik, who served as Rudy’s chief investigator after the election. They’re contesting the privilege claims Kerik has sustained from J6C, based off an argument that Kerik’s communications were not created as work product in anticipation of litigation. As Rudy explained to J6C, his team abandoned the plan to sue to overturn the vote after about the first week post-election in favor of going to legislatures, so any work product Kerik created would have been in anticipation of legislative hearings, not litigation. As stated in emails exchanged between lawyers, Rudy is not claiming privilege over Georgia-related work product done in anticipation of sharing information with legislatures (as distinct from litigation).

The position we took was that communications and work product in connection with presenting testimony and evidence before the Georgia Legislature in December 2020 was not privileged. Not that it was privileged but that we were waiving it.

[snip]

I would say that any communications or materials created in anticipation of the December 2020 Georgia Senate hearings are not privileged and should not be withheld.

Rudy had claimed similar communications were privileged in his January 6 Committee deposition given in May 2022, so this is a change in stance.

There are a lot of things that have happened since that could explain the changed posture. A different lawyer, Joe Silbey, is handling Rudy’s civil challenges. Rudy testified last August in Fani Willis’ investigation. Beryl Howell issued a ruling on the application of privilege before her on May 19 of this year (the latter of which Freeman’s lawyers cited in discussions with Kerik lawyer Tim Parlatore). But another possible explanation for Rudy’s willingness to share information on pressuring legislatures when he hadn’t before would be if the material had been deemed non-privileged in the past, perhaps one of the 56 documents on Rudy’s phone over which an initial privilege claim was either withdrawn or overridden.

To the extent it presents a coherent timeline, WaPo’s story largely tells when former FBI Assistant Director Steve D’Antuono vetoed DOJ requests and when formal investigative decisions were made. But such formal decisions always follow evidentiary collection, often by months. That’s especially true here; it’s what Merrick Garland and Lisa Monaco demanded. Even with Stewart Rhodes, whose prosecution this story makes a far more central part of January 6 than Rhodes’ actions merit, this story doesn’t talk about known evidence and cooperating witnesses that advanced the investigation (not even Joshua James, the sole witness who would play a function in WaPo’s narrative). The only mention — at all — of evidence that might drive such decisions describes J6C investigator Timothy Heaphy sharing information about Trump pressuring Pence and others.

But the January 6 fake electors investigation does not resemble the DOJ one, certainly not as to the relative import of Toensing and DiGenova.

The most obvious place that focus might have come from, and come from in time to shape the May 2022 subpoenas, would be Rudy’s phones — phones that DOJ started the process of exploiting well before J6C even started investigating.

Update: Fixed an error re: Matthew Graves’ timeline. He was confirmed on October 28, 2021 but sworn in on November 5. So SDNY started obtaining Rudy’s content before Graves was sworn in.

On the Shoddy Journalistic Defense of “WikLeaks”

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When it was first published, a letter that the NYT, Guardian, Le Monde, Der Spiegel, and El País signed, calling on the US government to drop the Espionage Act charges against Julian Assange, got the date of Assange’s arrest wrong — it was April 11, not April 12, 2019. The outlets have since corrected the error, though without crediting me for alerting them to it.

A correction was made on Nov. 29, 2022: An earlier version of this letter misstated the date of Julian Assange’s 2019 arrest. It was April 11th, not April 12th.

An email was sent by me and then a correction was made. No bill was sent for the free fact checking.

As it currently exists, even after correcting that error, the Guardian version of the letter misspells WikiLeaks: “WikLeaks.”

For Julian Assange, publisher of WikLeaks, the publication of “Cablegate” and several other related leaks had the most severe consequences. On [April 11th] 2019, Assange was arrested in London on a US arrest warrant, and has now been held for three and a half years in a high-security British prison usually used for terrorists and members of organised crime groups. He faces extradition to the US and a sentence of up to 175 years in an American maximum-security prison. [my emphasis]

The slovenly standards with which five major newspapers released this letter suggest the other inaccuracies in the letter may be the result of sloppiness or — in some cases — outright ignorance about the case on which they claim to comment.

Take the claim Assange could serve his sentence in “an American maximum-security prison.” The assurances on which British judges relied before approving the extradition included a commitment that the US would agree to transfer Assange to serve any sentence, were he convicted, in Australia.

Ground 5: The USA has now provided the United Kingdom with a package of assurances which are responsive to the judge’s specific findings in this case. In particular, the US has provided assurances that Mr Assange will not be subject to SAMs or imprisoned at ADX (unless he were to do something subsequent to the offering of these assurances that meets the tests for the imposition of SAMs or designation to ADX). The USA has also provided an assurance that they will consent to Mr Assange being transferred to Australia to serve any custodial sentence imposed on him if he is convicted.

While the assurances that Assange wouldn’t be subject to Special Administrative Measures (basically contact limits that amount to isolation) aren’t worth the paper they were written on — partly because Assange did so much at the Ecuadorian Embassy that, if done in a US jail, would get him subject to SAMs, and partly because the process of designation under SAMs is so arbitrary — reneging on the agreement to transfer Assange to Australia would create a significant diplomatic row. A sentence in an American maximum-security prison is explicitly excluded from the terms of the extradition before Attorney General Garland, unless Assange ultimately chose to stay in the US over Australia (or Australia refused to take him).

The claim that he could be sentenced to 175 years, when the reality is that sentencing guidelines and concurrent sentences would almost certainly result in a fraction of that, is misleading, albeit absolutely within the norm for shoddy journalism about the US legal system. It’s also needlessly misleading, since any sentence he would face would be plenty draconian by European standards. Repeating a favorite Assange line, one that is legally true but practically misleading, does little to recommend the letter.

In the next paragraph, these five media outlets seem to suggest that the Computer Fraud and Abuse Act conspiracy alleged in “the indictment” is limited to Assange’s effort to crack a password.

This group of editors and publishers, all of whom had worked with Assange, felt the need to publicly criticise his conduct in 2011 when unredacted copies of the cables were released, and some of us are concerned about the allegations in the indictment that he attempted to aid in computer intrusion of a classified database. But we come together now to express our grave concerns about the continued prosecution of Julian Assange for obtaining and publishing classified materials.

It is — in the 2017 to 2019 charging documents. But not the one on which Assange is being extradited.

The hacking conspiracy, as currently charged, is a 5-year conspiracy that alleges far more than — and starts before — the password cracking seemingly described in the paragraph. It includes Assange’s use of Siggi’s credentials to access a police database to monitor any investigation into himself, a request to hack a former WikiLeaks associate, the recruitment of Anonymous hackers to target US-based companies (arguably also an attempt to aid in the computer intrusion of classified databases, albeit not US government ones), and the exploitation of WikiLeaks’ role in helping Edward Snowden flee to recruit more hacks including, explicitly, a sysadmin hack of the CIA’s classified databases like the one for which Joshua Schulte has now been convicted. (The existing indictment ends at 2015, before the start of Schulte’s actions, though I would be unsurprised to see a superseding indictment incorporating that hack, leak, and exposure of sensitive identities.)

Are these media outlets upset that DOJ has charged Assange for a conspiracy in which at least six others have been prosecuted, including in the UK? Are they saying that’s what their own journalists do, recruit teenaged fraudsters who in turn recruit hackers for them? Or are these outlets simply unaware of the 2020 indictment, as many Assange boosters are?

Whichever it is, it exhibits little awareness of the import that Judge Vanessa Baraitser accorded the hacking conspiracy to distinguish Assange’s actions from actual journalism.

At the same time as these communications, it is alleged, he was encouraging others to hack into computers to obtain information. This activity does not form part of the “Manning” allegations but it took place at exactly the same time and supports the case that Mr. Assange was engaged in a wider scheme, to work with computer hackers and whistle blowers to obtain information for Wikileaks. Ms. Manning was aware of his work with these hacking groups as Mr. Assange messaged her several times about it. For example, it is alleged that, on 5 March 2010 Mr. Assange told Ms. Manning that he had received stolen banking documents from a source (Teenager); on 10 March 2010, Mr. Assange told Ms. Manning that he had given an “intel source” a “list of things we wanted and the source had provided four months of recordings of all phones in the Parliament of the government of NATO country-1; and, on 17 March 2010, Mr. Assange told Ms. Manning that he used the unauthorised access given to him by a source, to access a government website of NATO country-1 used to track police vehicles. His agreement with Ms. Manning, to decipher the alphanumeric code she gave him, took place on 8 March 2010, in the midst of his efforts to obtain, and to recruit others to obtain, information through computer hacking

[snip]

In relation to Ms. Manning, it is alleged that Mr. Assange was engaged in these same activities. During their contact over many months, he encouraged her to obtain information when she had told him she had no more to give him, he identified for her particular information he would like to have from the government database for her to provide to him, and, in the most obvious example of his using his computer hacking skills to further his objective, he tried to decipher an alphanumeric code she sent to him. If the allegations are proved, then his agreement with Ms. Manning and his agreements with these groups of computer hackers took him outside any role of investigative journalism. He was acting to further the overall objective of WikiLeaks to obtain protected information, by hacking if necessary. Notwithstanding the vital role played by the press in a democratic society, journalists have the same duty as everyone else to obey the ordinary criminal law. In this case Mr. Assange’s alleged acts were unlawful and he does not become immune from criminal liability merely because he claims he was acting as a journalist.

Whether editors and publishers at the five media outlets know that Assange was superseded in 2020 or not or just used vague language that could be read, given the actual allegations in the indictment, to suggest that some of them think Assange shouldn’t be prosecuted for conspiring to hack private companies, the language they included about the CFAA charge has led other outlets, picking up on this misleading language (along with the original error about the arrest date), to write at length about an indictment, with a more limited CFAA charge, that is not before Attorney General Merrick Garland. So maybe the NYT, Guardian, Le Monde, Der Spiegel, and El País know about the true extent of the CFAA charge, but by their vagueness, these five leading newspapers have contributed to overtly false claims by others about it.

Finally, the letter repeats WikiLeaks’ narrative about the changing DOJ views on Assange, presenting it as a binary between the “Obama-Biden” and Donald Trump Administrations.

The Obama-Biden administration, in office during the WikiLeaks publication in 2010, refrained from indicting Assange, explaining that they would have had to indict journalists from major news outlets too. Their position placed a premium on press freedom, despite its uncomfortable consequences. Under Donald Trump however, the position changed. The DoJ relied on an old law, the Espionage Act of 1917 (designed to prosecute potential spies during world war one), which has never been used to prosecute a publisher or broadcaster.

This is a story WikiLeaks likes to tell even while incessantly publicizing a a story that debunks it. It is based on a public quote — made in November 2013 by former DOJ spox, Matt Miller, who left DOJ in 2011, about why DOJ wouldn’t charge Assange. But a Yahoo story last year included former Counterintelligence head Bill Evanina’s description of how the US approach to WikiLeaks began to change in 2013, after Miller left DOJ but still during the Obama Administration, based on WikiLeaks’ role in helping Snowden flee.

That began to change in 2013, when Edward Snowden, a National Security Agency contractor, fled to Hong Kong with a massive trove of classified materials, some of which revealed that the U.S. government was illegally spying on Americans. WikiLeaks helped arrange Snowden’s escape to Russia from Hong Kong. A WikiLeaks editor also accompanied Snowden to Russia, staying with him during his 39-day enforced stay at a Moscow airport and living with him for three months after Russia granted Snowden asylum.

In the wake of the Snowden revelations, the Obama administration allowed the intelligence community to prioritize collection on WikiLeaks, according to Evanina, now the CEO of the Evanina Group.

Years earlier, CNN reported the same thing: that the US understanding of WikiLeaks began to change based on its role in helping Snowden to flee.

It should be unsurprising that the government’s approach to WikiLeaks changed after the outlet helped a former intelligence officer travel safely out of Hong Kong, because at least one media outlet made similar judgments about how that distinguishes WikiLeaks from journalism. Bart Gellman’s book described how lawyers for WaPo believed the journalists should not publish Snowden’s key to help him authenticate himself with foreign governments — basically, something else that would have helped him flee. Once Gellman understood what Snowden wanted, he realized it would make WaPo, “a knowing instrument of his flight from American law.” By his description, the lawyers implied Gellman and Laura Poitras might risk aid and abetting charges unless they refused a “direct attempt to enlist [them] in assisting him with his plans to approach foreign governments.” Like the US government, the WaPo judged in 2013 that helping Snowden obtain protection from other, potentially hostile, governments would legally go beyond journalism.

This is one reason clearly conveying the scope of the CFAA allegations is central to any credible commentary on the Assange case: because Assange’s exploitation of the Snowden assistance is an overt act charged in it. But five media outlets skip both the import of that act and its inclusion in the charges against Assange in a bid to influence the Biden Administration.

This WikiLeaks narrative also obscures one more step in the evolution of the understanding of Assange during the Obama administration, one that is more problematic for this letter, given that it would hope to persuade Attorney General Merrick Garland. Per the Yahoo article that WikiLeaks never tires of publicizing, the US government’s understanding of WikiLeaks changed still more when the outlet partnered with Russian intelligence on its 2016 hack-and-leak campaign.

Assange’s communication with the suspected operatives settled the matter for some U.S. officials. The events of 2016 “really crystallized” U.S. intelligence officials’ belief that the WikiLeaks founder “was acting in collusion with people who were using him to hurt the interests of the United States,” said [National Intelligence General Counsel Bob] Litt.

That’s important because, while the parts pertaining to WikiLeaks are almost entirely redacted, the SSCI Report on responses to the 2016 hack-and-leak makes it clear how central a role then-Homeland Security Advisor and current Deputy Attorney General Lisa Monaco played in the process. You’re writing a letter about which Garland would undoubtedly consult with Monaco. She knows that the gradual reassessment of WikiLeaks was no lightswitch that flipped with the inauguration of Donald Trump. Treating it as one provides one more basis on which DOJ could dismiss this letter. What changed wasn’t the administration: it was a series of WikiLeaks actions that increasingly overcame the “New York Times problem,” leading to expanded collection on Assange himself, leading to a different understanding of his actions.

Here’s why I find the sloppiness of this letter so frustrating.

I absolutely agree that, as charged, the Espionage Act charges against Assange are a dangerous precedent. That’s an argument that should be made soberly and credibly, particularly if made by leaders of the journalistic establishment.

I agree with the letter’s point that, “Obtaining and disclosing sensitive information when necessary in the public interest is a core part of the daily work of journalists,” (though these same publishers decided that disclosing the names of US and coalition sources was not in the public interest, and Assange’s privacy breach in doing so was the other basis by which Baraitser distinguished what Assange does from journalism).

But so is fact-checking. So is speaking accurately and with nuance.

If you’re going to write a letter that will be persuasive to the Attorney General, it would be useful to address the indictment and extradition request as it actually exists, not as it existed in 2019 or 2020 or 2021.

And if you’re going to speak with the moral authority of five leading newspapers defending the institution of journalism, you would do well to model the principles of journalism you claim to be defending.

As noted, these outlets corrected the date error after I inquired about the process by which this letter was drafted. I have gotten no on-the-record comments about the drafting of this letter in response.

“Fuck! Two years or three years, screw you, they will get you when it’s time”

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About 26 pages into a 40-page indictment of Quanzhong An and his daughter Guangyang An — which was obtained last week but rolled out at a press conference yesterday — the indictment shifts tracks dramatically.

Up until that point, it lays out in detail An’s role in China’s efforts, dating back to 2002, to convince John Doe-1 and his son, referred to as John Doe-2 in the indictment, to return to China. But then at page 26, it starts to lay out alleged money laundering, showing how Quanzhong An transferred almost $4 million from China to the US over six years by transferring it in increments at or just under $50,000 in the name of family members.

From in or about 2016 through the present, the defendants QUANZHONG AN and GUANYANG AN conspired with others to engage in a money laundering scheme. During this period, the conspirators sent and caused to be sent millions of dollars in wire transfers from the PRC to the United States. As these activities violated applicable PRC law regarding capital flight — which imposed a limit of $50,000 per person annually for total foreign exchange settlement — the conspirators engaged in deceptive tactics designed to frustrate and impede the Anti-Money Laundering (“AML”) controls of the U.S. financial institutions, so that the defendants and the coconspirators could enjoy continued access to the U.S.-based bank accounts.

Here’s what a fraction of the transfers look like.

To be clear, the reason these transfers were made in $50,000 increments was to comply with Chinese transfer restrictions, not US ones. This is charged as money laundering in the US because (as the indictment notes) it involved false statements to banks and layering and other tactics to hide the ruse. But it also appears to be a violation of Chinese law, the same kind of law that the person targeted for repatriation by An allegedly violated.

As FBI Director Chris Wray noted at yesterday’s press conference,

Two of the subjects who targeted him, two of the defendants charged today, are themselves actually involved in a scheme to launder millions of dollars. And as if that weren’t enough evidence that the real purpose of their operation was political, they gave their victim a deadline to return by: the 20th CCP Congress earlier this month.

The money laundering belies the claim that China is pushing for John Doe-1’s repatriation out of some concern about financial corruption.

It may provide context, too, to details earlier in the indictment that described how An became involved in efforts to coerce John Doe-1 to return to China. As described, his efforts to lure John Doe-1 back to China started in 2017, when he showed up at John Doe-1’s home to locate him and his son. A year later, his daughter Guangyang accompanied a family member’s boss to the house in 2018, where they left a note and were captured on John Doe-1’s security camera, as shown in the picture.

In August 2019, one of the Chinese-based co-conspirators sent a message to John Doe-1 claiming that An was just helping out out of patriotism.

An Quanzhong is a patriotic businessman in the U.S. and the head of the Chinese Business Association of New York. He was originally from Zaozhuang, Shandong, and has given strong support to the government’s work. He is willing to communicate with [John Doe-1] and pay for [John Doe-1] to help the government recover the loss without anything in return. At the same time, he is willing to provide enough funds to guarantee [John Doe-1’s] return and cover his expenses needed to return home.

Starting in 2020, An started meeting with the son, John Doe-2, meetings which were consensually recorded (meaning either the FBI was already involved or John Doe-2 is really smart).

At a January 2020 meeting, An explained to the son what he was up to, admitted to the 2017 visit to the house, and explained that he would pay the money John Doe-1 allegedly owes to the Chinese state and put him up in his Chinese home if he returned.  John Doe-2 asked why he was willing to pay that amount, and An explained that he was trying to get the Chinese government to view him as a good guy.

QUANZHONG AN responded that he had donated over 100 million yuan to the PRC government the previous year and that the PRC government “will be very happy if this thing is settle[d].” QUANZHONG AN boasted that, if he assisted with John Doe-1’s repatriation, the PRC government “will not see [QUANZHONG AN] as a bad guy because [he has] done so many good things, even donating money to society.”

In a July 2021 meeting with John Doe-2, also lawfully monitored, An repeated the promise that John Doe-1 would not be detained if he returned, then explained he was involved in part because of his business interests.

QUANZHONG AN also acknowledged how his business interests prompted his involvement in John Doe-1’s case. QUANZHONG AN explained, “[A]s you know, there are many ways to make it work in China. It’s hard to do business in China.” QUANZHONG AN claimed that he had succeeded by making donations to the PRC government. QUANZHONG AN further claimed that “he had donated over 300 million yuan over the years to the PRC government.”

In a July 2022 call that An brokered to take place at a hotel he owns in Flushing, one of the Chinese co-conspirators told John Doe-2 that he should return before the Party Conference (the October 20 arrest took place in the middle of it, which spanned from October 16 to October 22), because, “In case there is a change, I am afraid that it doesn’t work in favor of the old man” (which I believe is a reference to John Doe-1’s father, in China).

In recent weeks, the detention motion for the father and daughter describes, An met with John Doe-2 again, this time with a confession for John Doe-1 to sign in advance of the Party Congress.

More recently, Quanzhong An met with John Doe-2 again on September 29, 2022. During this meeting, Quanzhong An pressed for John Doe-1 to execute an agreement to return to the PRC in advance of the CCP’s 20th National Congress, which began on October 16, 2022. As part of such agreement, Quanzhong An sought a written confession from John Doe-1, which would be submitted directly to the PRC government. This morning, incident to Quanzhong An’s arrest, agents located a photograph of what appears to be a sample confession for John Doe-1 to use.

Instead of returning, the implication is, DOJ finalized this indictment on October 7, and the FBI arrested An and his daughter. The indictment includes two forfeiture provisions, and lists three properties. After his arrest last week, An was given a CJA attorney, suggesting the considerable assets he has in the US may be tied up in those forfeitures.

In other words, this appears to be a story of how the Chinese government used An’s own violations of Chinese law not to rein him in, but to coerce him to pursue the return of a long-sought exile. The US government is effectively using the leverage China had over An, because of his alleged money laundering, to impose far greater penalties — both financially and (because of stiff penalties on money laundering) in terms of criminal exposure — on his involvement in the matter here in the US.

This was one of three charging documents rolled out yesterday in a very high-level press conference involving Attorney General Merrick Garland, Deputy Attorney General Lisa Monaco, National Security Division head Matthew Olsen, and FBI Director Chris Wray. Those three sets of charges are:

  • Charging two suspected Chinese intelligence officers — both in China — who paid a double agent for what they believed was secret information pertaining to the 2018 prosecution of Huawei on racketeering charges. (press release)
  • Charging four Ministry of State Security officers — all in China — in conjunction with their unsuccessful attempt to recruit a former law enforcement officer while on two trips to China (one in 2008, the second in 2018) and their successful recruitment of an unnamed and uncharged US permanent resident co-conspirator who took actions in New Jersey. (press release)
  • As noted, the indictment charging US permanent resident Quanzhong An, his US citizen daughter Guangyang An, along with five Chinese based individuals, four of whom are members of the Provincial Commission for Discipline Inspection for their efforts to lure a long-term US resident back to China. (press release, which was issued on the day of arrest, October 20)

On their face, the charges seemed quite unrelated (indeed, Wray acknowledged as much). On its face, the press conference seemed to be another of the showy ones designed to get attention precisely because most of those affected are overseas, out of the reach of law enforcement. (Compare that press conference to the more discreet rollout of the three indictments targeting Oleg Deripaska and his associates, charges that take more overt cooperation with other countries, to say nothing of even more juggling of ongoing sensitivities.)

Which raises the question of why now, why these cases. In response to a direct question about whether the timing of this related to the party conference — mentioned in the An indictment and in Wray’s prepared remarks — that solidified Xi Jinpeng’s third term, Wray said only that, “we bring cases when we’re ready.”

It may be that An was lured back to the US for his arrest based on that timing, which would in turn explain the timing of that arrest (which was announced, though not docketed, last week). But that would only explain why that case was rolled out, and it was already public last week.

An and his daughter are the only people described to be arrested in these documents.

But there is a Co-Conspirator-1 named in the New Jersey indictment (which was filed on October 20, the same day the An arrest took place) whose apparent US presence is unexplained in the indictment and yesterday’s press conference.

That indictment seems like it’s an investigation that started when a former law enforcement officer was recruited in China in 2008, which alerted the US government to the identity of Wang Lin, who in 2016 traveled to the Bahamas to begin recruiting CC-1, first by tasking him or her with delivering a $35,000 payment in the US. Then, in 2016, another of the co-conspirators, Wang Qiang, traveled with CC-1’s Chinese family members and had a series of discussions about working for China. In one, Wang expressed concern that the US had planted surveillance equipment on one of his phones at the airport.

During the same conversation, CC-1 also discussed with CC-l’s two family members, in sum and substance, what s/he believed to be the United States’ surveillance capabilities. CC-1 also told her/his family members that WANG QIANG had expressed concern when he (WANG QIANG) entered the United States that customs officials had installed surveillance equipment on one of his telephones at the airport, and that WANG QIANG was concerned about numbers for several contacts in North Korea that he had in his phones. CC-1 stated, in sum and substance, that WANG QIANG was “a low-level” official and should not have been concerned that he would be known to United States authorities.

It seems Wang was right to be concerned, because a series of damning conversations involving Wang and CC-1 were “lawfully recorded.”

WANG and CC-1 continued to discuss working on behalf of the PRC and obtaining information for the PRC in furtherance of its intelligence-gathering operations. Among other things, CC-1 stated thats/he “like(s) to do it,” meaning working for the PRC. CC-1 complained, however, that “[it] would be fine if there were more money.” CC-1 continued, stating, “It will work if you can truly pull off something big, things like the fucking U.S. high tech, anything that is important, right?” CC-1 then stated that “We are the ones who do the fucking work.” CC-1 also noted that “it is just a business,” that “they pay you for each job done,” and that “they will pay you again if they use you again.”

WANG QIANG and CC-1 continued to express fear about getting caught. Indeed, CC-1 stated thats/he did not “want to get into any trouble now.” CC-1 advised WANG QIANG, “If you don’t need to travel, it should be safe to stay in China. If you need to travel, fuck! The U.S. is very capable, I am telling you. You can’t run away from them.” CC-1 continued, “The Americans are really capable. Fuck! Two years or three years, screw you, they will get you when it’s time. . . . On the other hand, I have no use to them if I go back. I have no use to them if I go back to China.” During the conversation, WANG QIANG stated his belief that individuals working for the PRC “will be abandoned in the future.” [my emphasis]

There’s no other explanation for what happened with CC-1. And absent a 2018 offer to the law enforcement officer on a trip to China in 2018, these charges would be time-barred; I wonder whether that former law enforcement officer has a tie to the double agent described in the Huawei indictment (though timing wise, he cannot be the same person). Of that double agent from the Huawai case, Wray yesterday said, “we very rarely get a chance to publicly thank” double agents working in operations targeting China and other foreign countries.

But the pattern shown in the An indictment holds: the recruitment via Chinese associates using family ties of permanent residents in the US.

That is, at least two of these indictments appear to be based off far deeper investigative work than that FBI had previously pursued, in which they tried to catch scholars in false statements regarding dual Chinese and US-funding.

At yesterday’s press conference, someone asked (seemingly pointing to the ongoing threat of espionage from China), “Was it a mistake to get rid of the China initiative?”

The China Initiative was a Trump Administration effort that resulted in a series of high profile failed prosecutions and that sowed discrimination against Chinese and Chinese-Americans working in technical roles.

Garland responded by saying that,

These cases make quite clear we are unrelenting in our efforts to prevent the government of China from economic espionage, from operating in the United States as foreign agents, from trying to affect our rule of law, our judicial system, from trying to target or recruit Americans to help them … we have not in any way changed our focus on those kind of behaviors by China.

Olsen added,

We have stayed very focused on the threat that PRC poses to our values, to our institutions. We speak through our cases, and we speak to those cases today. I think what we are charging today in terms of the range and persistence of the threat that we see from the PRC demonstrates that we have remained relentless on that threat and we will continue to be focused on that threat going forward.

Asked by the same apparent Trump booster whether he had just gotten rid of the name, Olsen responded,

We ended the China Initiative earlier this year after a lengthy review and adopted a broader strategy focused on the range of threats that we face from a variety of nation-states, and that’s the strategy we’re carrying forward.

What DOJ spoke through its cases yesterday suggests they’re using longer-term operations to target a more fundamental recruiting effort and only unwinding them, one by one, as such interlocking efforts require it.

Update: In juggling some quotes I cut the part from which the title comes. I’ve added it back in (h/t higgs boson) and fixed another detail.

DOJ Inspector General Report on the Tensions Created by Parallel Construction

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Before you read this report on tensions between FBI Office of General Counsel’s National Security and Cyber Law Branch (NSCLB)  and DOJ’s National Security Division (NSD), remember the following things:

  • In significant part because of jurisdictional limitations, DOJ Inspector General blamed FBI for everything that went wrong with the Carter Page FISA applications, and in the wake of that report, Bill Barr, Trump, and his allies in Congress used it to damage the career every single person at FBI who had been involved with the Russian investigation (except for the two guys who made multiple mistakes in dismissing the Alfa Bank allegations).
  • John Durham then used that damage to attempt to coerce testimony, sometimes false, from FBI figures in his never-ending witch-hunt.
  • For the same jurisdictional limitations, any abuse John Durham engages in or Andrew DeFilippis engaged in can only be reviewed by DOJ’s feckless Office of Professional Responsibility, not by DOJ IG.
  • After that report, DOJ IG developed proof that Carter Page was not special; by some measures, his FISA application was better than those of people who hadn’t been fired by a future President for precisely the same foreign ties that the FISA was meant to assess.
  • The NSD then dismissed those findings from DOJ IG, largely by adopting a standard different from the one that had been adopted with Carter Page (it’s unclear whether DOJ IG is still trying to resolve these discrepancies or not).
  • None of the stuff that happened thus far addresses the substantive problems with the Page applications.

The report talks about the “historically strained” relationship between these two sets of lawyers, without laying out the role that the Carter Page review — and the Trump DOJ’s use of DOJ IG to punish his enemies generally — did to make things worse.

That tension plays out in the report. For example, Horowitz only provides recommendations to NSCLB and FBI’s OGC, not NSD. In each case, FBI is directed to coordinate with NSD, without the counterpart recommendation. The tension is particularly critical to something that DOJ IG cannot, therefore, recommend: That NSD have access to FBI case files, which would allow them to play a more proactive role in the vetting of FISA applications. It would also make NSD share in accountability for any problems that arise (as they should have with Page), though, and unsurprisingly NSD doesn’t want that.

NSCLB attorneys expressed their concern that although NSD attorneys assist agents in drafting the FISA applications submitted to the FISC, they do not share accountability when compliance incidents are reported to the FISC. Although NSCLB officials acknowledged the oversight role that NSD has related to FISA, they emphasized the need for FISA to be a team effort and not an adversarial relationship and stated their belief that the number of compliance incidents would be reduced if NSD would review the FISA-related documents housed in the FBI’s IT systems. However, according to NSCLB attorneys, NSD has expressed disinterest in ensuring FISA compliance on the front end and has said that it is the agent’s responsibility to identify in the first instance, anything that is necessary to be reported to the FISC. We were also told by NSCLB attorneys that NSD has said that it is concerned that an appearance of NSD attorneys having knowledge of the underlying documents would imply that they have full knowledge of all of the supporting documents, which would not be practicably feasible for them to have.

A senior NSD official that we spoke with told us that NSD has limited resources, and it does not have direct access to FBI systems.

NSD wants none of this accountability and DOJ IG can’t make them.

For all the tensions, though, it’s a fascinating report, as useful for providing both historical and bureaucratic background on this process as anything else. Much of this tension arises out of DOJ’s admitted parallel construction — using alternative sources for certain facts to protect sources and methods. There’s even a paragraph that describes NSCLB’s role as such (though not by name).

For instance, we were told that NSD relies on NSCLB to review documents such as search warrants and criminal complaint affidavits for law enforcement or other sensitivity concerns before they are filed with the court by prosecutors. When this process is not followed, it can become particularly problematic if NSCLB later finds that sensitive information was contained in the court filing. For example, if the FBI used a sensitive platform to obtain information, prosecutors may decide that a description of the platform is needed to support the search warrant or complaint. In such instances, NSCLB may ask prosecutors to anonymize that information. However, if NSCLB does not review the case agent’s draft affidavit in support of a search warrant or complaint before the agent provides it to the prosecutor, sensitive information may be exposed. Also, senior NSCLB officials told us that including an NSCLB attorney early in this process can provide an effective means of ensuring prosecutors have information necessary to support their case. Specifically, NSCLB can help identify which information may be difficult to use from a classification and sensitivity perspective and provide suggestions to obtain the information from an independent source without implicating sensitive techniques.

The report claims the particular roles of each side are not well-defined. I’m not convinced that’s the case, though. As described, NSCLB protects national security and the secrets that go along with that (including secret intelligence techniques). And NSD fulfills the needs of prosecutions as well as “protect[ing] FISA as a tool so the FBI can continue to use it.”

In one telling explanation,

NSCLB senior officials highlighted the fact that criminal prosecution is not necessarily the FBI’s aim in every national security investigation and that the FBI sometimes appropriately pursues investigations with the aim of disrupting threats or collecting intelligence.20

These are tensions, but they are not necessarily bad tensions. And it doesn’t seem like this report considers how this compares to the relationship between a prosecutor and a case agent where there are none of the national security (and classification) concerns.

In any case, the report attributes that tension for two radically different understandings about the standards involved in two FISA concepts, including one — material facts that must be disclosed to the FISA Court — that was at the core of the Carter Page case.

In the case of materiality, the FBI seems to be playing dumb (perhaps to avoid opening a whole historical can of worms given the aftermath of the Page IG Report).

The 2009 Accuracy Memorandum defined material facts as, “those facts that are relevant to the outcome of the probable cause determination.” The FBI had interpreted this standard as facts that are outcome determinative, or facts that would invalidate the legal determination. However, NSD had applied a broader standard than the FBI, with NSD’s interpretation of material facts being facts that are capable of influencing the requested legal determination. An NSD senior official told us that the FBI’s viewpoint was based on the FBI’s involvement in the criminal law enforcement arena where the threshold for materiality in a criminal search warrant is outcome determinative. This official also stated that most material errors reported to the FISC do not invalidate the legal determination, and that the FISC still expects for these types of errors to be reported to them.

Senior NSD officials stated NSD had applied the same standard for at least 15 years and NSCLB had known of NSD’s application of the standard because it was reflected in previous Rule 13 notices filed with the FISC. For example, in the OIG’s report on the FBI’s Crossfire Hurricane Investigation, NSD supervisors stated that “NSD will consider a fact or omission material if the information is capable of influencing the court’s probable cause determination, but NSD will err on the side of disclosure and advise the court of information that NSD believes the court would want to know.”41 Similarly, in a FISC filing on January 10, 2020, NSD referred to this statement in the OIG report while describing its oversight and reporting practices when errors or omissions are identified.42 However, senior NSCLB officials told us that NSCLB was first made aware of NSD’s interpretation of the materiality standard in the OIG’s Crossfire Hurricane Investigation report and NSD’s subsequent January 2020 FISC filing.43

In the case of the claimed differing understand of  querying techniques under 702 (in which, by my read, both sides were pretending this hasn’t dramatically changed as FISC became aware of how 702 collection was really used), NSD seems to engage in the knowing bullshit.

In contrast, NSD told us that the query standard has been the same since 2008. A senior NSD official stated that the FBI had a fundamental misunderstanding of the standard and that compliance incidents were not identified sooner because NSD can only review a limited sample of the FBI’s queries and NSD improved upon its ability to identify non-compliant queries over time.

I knew the standard the FBI was using. It is not credible that I knew what it was and NSD did not.

In both cases, this claimed disagreement seems to be an effort to avoid applying the standards adopted post-Page to the FISA approach (and not just on individualized orders) applied before then.

The report confirms something that had been obvious from heavily redacted sections of the last several 702 reauthorizations: FBI had been using 702 collection (and FISA collection generally) to vet potential confidential human sources.

For example, we were told disputes occurred related to queries conducted for vetting purposes.52 Specifically, according to the FBI, it was concerned that as a result of the change to the query standard it could no longer perform vetting queries on raw FISA information before developing a confidential human source (CHS). FBI officials told us that it was important for agents to be able to query all of its databases, including FISA data, to determine whether the FBI has any derogatory or nefarious information about a potential CHS. However, because of the implementation of the 2018 standard, the FBI is no longer able to conduct these queries because they would violate the standard (unless the FBI has a basis to believe the subject has criminal intent or is a threat to national security). According to the FBI, because its goal is to uncover any derogatory information about a potential CHS prior to establishing a relationship, many agents continue to believe that it is irresponsible to engage in a CHS relationship without conducting a complete query of the FBI’s records as “smoking gun” information on a potential CHS could exist only in FISA systems. Nevertheless, these FBI officials told us that they recognize that they have been unsuccessful when presenting these arguments to NSD and the FISC and, as noted below, they follow NSD’s latest revision of query standard guidance.

Using back door searches to vet informants is an approved use on the NSA and, probably, CIA side. In the FBI context, my understanding is that informants understand they’re exchanging Fourth Amendment protections as part of their relationship with the FBI. Perhaps if the FBI had simply made this public, it could have been an approved use. Instead, we’re playing all these games about the application.

The report describes — but doesn’t really address — how the tension between NSCLB and NSD undermined National Security Reviews which,

examine (1) whether sufficient predication exists for FBI preliminary and full investigations, (2) whether a sufficient authorized purpose exists for assessments, (3) whether tools utilized during or prior to the assessment are permitted, and (4) all aspects of National Security Letters issued by the FBI.

There was a huge backlog of these until NSD hurriedly closed a bunch of them in 2020, which is the kind of thing that when Bush did them with FISA tools in 2008 was itself a symptom. So, too, may be some policy memos that happened in Lisa Monaco’s first days and John Demers’ last ones.

The section I found to be most interesting (and one that DOJ IG could not or chose not to address in recommendations) pertains to the tension over declassification of material for prosecutions.

According to the FBI’s Declassification of Classified National Security Information Policy Guide, NSCLB must participate in the approval of discretionary declassification decisions concerning FBI classified information. NSCLB assists in ensuring that the declassification of either FISA derived material or other FBI classified information is: (1) necessary to protect threats against national security; (2) will not include classified materials obtained from foreign governments; (3) will not include classified materials obtained from other U.S. agencies (unless authorized by the originating agency); (4) will not reveal any sensitive or special techniques; and (5) will not adversely impact other FBI investigations.

[snip]

Despite the FBI’s limited support role, NSD and DOJ staff we spoke with told us that they believe NSCLB has involved itself inappropriately in discovery matters. For example, an NSD senior official told us that NSCLB has attempted to second guess discovery decisions made by prosecutors. This NSD official believed that NSCLB’s role is not to participate in the determination of how the prosecutors choose to protect a piece of classified information, but instead to identify information that is classified, its level of classification, and how a declaration from the owner of that information would explain to a court why the information presents a national security concern. According to this official, NSCLB may rightfully conclude the information is too sensitive to provide in discovery and, as a result, prosecutors may have to dismiss that case. However, we were told that discovery issues do not generally reach that point. We also were told by some AUSAs that they have had to remind NSCLB attorneys that AUSAs have the discovery obligations to courts and will make discoverability determinations.

An official from one USAO told us that, while it is understood that satisfying discovery obligations is the responsibility of the prosecutor, the FBI’s interest in protecting its equities may justify challenging a prosecutor’s discovery decisions. The official explained that such back and forth may be necessary to reach a balance between the needs of discovery and the protection of sensitive information; however, when the FBI’s role in the process extends into making assessments of what is discoverable it can slow the process down and necessitate the prosecutor asserting authority over discovery decisions.

[snip]

By contrast, senior NSCLB officials noted that several factors outside of NSCLB’s control can cause the declassification process to take a considerable amount of time. According to these officials, the FBI addresses the risk of disclosing information that could cause significant harm to the American public by using a thorough, deliberate process which can be impacted by the volume of information, the sensitivities involved, and the resources available to conduct a review. In defending NSCLB’s role in the discovery process, a senior NSCLB official expressed the view that AUSAs tend to err on the side of making material discoverable, even when it involves national security information, and do not appreciate how the disclosure of information may affect other FBI or USIC operations. This official told us that NSD often prefers to declassify all information that could be relevant, necessary, or discoverable to ease the prosecution of the case or the discovery process. .

This is, in my opinion, the description of what lawyers for an intelligence agency would do. That seems to be the role NSCLB is playing, for better or worse. In light of the cases described out of which the more specific tensions arise, I find the complaint that NSCLB is delaying discovery rather telling. If prosecutors choose to make a case that NSCLB believes would have been better handled via disruption, for example, or are entirely frivolous, such tensions are bound to surface. That said, if FBI’s General Counsel’s Office has been coopted people trying to protect sources and methods, NSD lawyers are going to look like the only ones guarding due process (though I’m sure they would with CIA’s lawyers, too).

There’s a lot of worthwhile observations in this report. But it’s hard to shake the conclusion that the most important takeaway is that DOJ cannot continue to have such asymmetry in the oversight that FBI and DOJ experience.

What Lisa Monaco Said about Charging a Hypothetical Former President

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When I was doing my, “What DOJ Was Doing While You Were Wasting Time Whinging on Twitter” post, I was laughing to myself at the number of times that Merrick Garland or Lisa Monaco have said things about the January 6 investigation, including charging high ranking people, only to have pundits claim that DOJ never makes a statement about such things.

On that note, someone linked this appearance Monaco did at University of Chicago in May, where professor Genevieve Lakier asked her a hypothetical about charging the President and Monaco answered at some length.

Lakier: I have one final question. I think it’s my responsibility to ask. And again, I know you’re not supposed to talk about pending cases, or uncharged cases, you don’t want to prosecute anyone in this theater. So I’m just going to ask you a hypothetical. Not about any real person. Just a hypo, like I do every day in the classroom.

Monaco: Okay.

Lakier: Which is, you’re the Deputy Attorney General and you have some power to decide what the Department of Justice and there’s former high ranking members of the Administration who are no longer in the Administration and there’s plenty of suggestive evidence and maybe some Federal judges have found there to be quite a lot of evidence that they have committed crimes. So how do you go about the process of thinking about whether to charge them? How do you talk to the American public about that process? How do you do it?

Monaco: See, e.g., the last hour.

Lakier: Yeah. It’s no different?

Monaco: No!

Lakier: When thinking about charging the highest federal official and a regular person.

Monaco: One set of rules, not matter who’s on the side of “the v[ersus],” right? That has to be the right answer. Right, professor, doesn’t that have to be the right answer?

Lakier: And so if you have enough evidence to charge — Well, in my class we talk a lot about a thing called prosecutorial discretion.

Monaco: Right.

Lakier: And how much power this gives prosecutors to make difficult choices about where to mobilize resources.

Monaco: Right. That’s exactly right. That’s exactly right. And so we look to the policy and the process that guides that decision-making, and then, when it’s appropriate, if we’ve decided to bring charges, we’ll talk about those charges. Right? We won’t talk about the uncharged conduct. And it is important to talk about the work that we’re doing. So for instance, I’ve spent a bunch of time in the last month talking about what we’re doing to go after Russian cyberattackers. What we’re doing to go back and seize back assets from Russian oligarchs. As our part of the whole of government effort to respond to the horror that’s happening in Ukraine. It’s important for us to talk about that as a priority, so people understand the steps we are taking in their name to address the aggression that’s happening in Ukraine. That’s an example where we’re taking steps, we’re talking about the work that we’re doing, but we’re doing it in the context of specific enforcement action that we’re taking and where we can point to conduct that we will either prove in court or put before a judge in a forfeiture action.

Lakier: I guess I’ll [take a?] follow-up, because maybe I don’t see any students at the microphones, but if students have questions please go up to the microphones. Just as a quick follow-up. I mean, thinking sympathetically one might imagine that if you’re a prosecutor and you’ve got lots of cases to charge and there’s lots of bad behavior to go after, you might think that the profound political fall-out that might follow going after a particular individual would distract generally from the work of the Department of Justice and in the long run, undermine the people’s justice. So I guess I’m wondering, are those kinds of concerns — not with the, oh we don’t want to charge this person because of their rank. But we don’t want to charge this person because it’s going to make our lives of doing the people’s justice so much harder. Do those kinds of considerations come in?

Monaco: Look, I’ll quote the Attorney General here. “We don’t avoid specific cases because they’re controversial or they’re sensitive. We do avoid making decisions based on purely political or partisan considerations.”

Later, after Monaco dodged a question about fraudulent claims of stolen elections based on her past confirmation that DOJ was investigating the fake electors plot, Lakier tried again.

Lakier: Okay, I guess I’ll ask a variety of that question. I did not put [the questioner] up to it but I’m curious about this.

Monaco: Yeah. Yeah.

Lakier: Which is, again, going back to January 6, you say you just follow the law. But there’s so many laws. And they’re generally quite broadly worded, for example, seditious conspiracy. So again, I just want to know about the trade-off. So so far in the prosecutions though I understand that everything’s not over yet, by any means, most of the people who’ve been charged are those who were directly involved in the events at the Capitol. But we know that there was plenty of organizing, inciting, encouraging. And we might think that many of those who were involved in the organizing, the inciting, the encouraging, perhaps bear more responsibility than those who participated, or equal responsibility. and yet it does raise difficult First Amendment concerns. So when thinking about how high to go, how broadly to go in these prosecutions, when we move beyond the people who entered the Capitol to the people who were involved in the planning, the orchestrating, how do you think about the free speech concerns? And also how do you think about — this excellent question about the prior precedents? How conservative do you play it? Do you worry that if you are going to be conservative, the result is going to be an overly anemic form of justice.

Monaco: So a few points. One, on the question of how broad to go, how high to go, we’ve been exceptionally clear about this and let me restate it and be clear here. We will follow the facts and the law wherever they go, to hold perpetrators of January 6 accountable at any level. At any level. And we will do so whether or not individuals were present on that day or not. So we’ve been exceptionally clear and I want to make that clear here for this audience.

When it comes to making judgements about how to make these charging decisions, seditious conspiracy, I mentioned three pleas already, to seditious conspiracy. It won’t take a huge law school paper writing exercise to look at the history of the seditious conspiracy statute as the professor here can tell you, it does not — you won’t find a lot of cases. So something we take very seriously. And we appropriately, I think, brought these charges, which I’m not going to expound upon beyond what is in the charging papers, except to say that we think it appropriately gets at the gravity of the conduct, and again, we’ve gotten three guilty pleas to that particularly statute already.

Last point, on how we make these decisions, starting first with the crimes that are in front of us, and then working out from there, and the reasons for that. I think what you see in the charging decisions that we’ve made, the most serious charges and thus far the most serious sentences have been meted out against those individuals who engaged in assault. The 200+ individuals who I said we’ve arrested and charged with assaulting officers or members of the news media. Those who engaged in conspiracy acts to obstruct the peaceful transfer of power. Those are the most serious charges and thus far are garnering the most serious charges and ultimately sentences, most likely. Then, where that conduct is not present, either assault or a conspiracy to obstruct the peaceful transfer of power, you see us using lesser charges for those who entered the Capitol without authorization. Trespassing and the like. It is important to mete out those charges as well, however you’re seeing individuals both coming forward and taking responsibility, getting lesser sentences both because they are lesser charges and if they’ve come forward, accepted responsibility, and in some instances, cooperated with the government, you will see lesser sentences and lesser charges there.

Cassidy Hutchinson Is a Superb Witness — to Get Other Witnesses against Trump

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According to a CNN report of Pat Cipollone’s testimony, the January 6 Committee did not ask him whether he told Cassidy Hutchinson that (as she testified), if “we” didn’t prevent Trump from going to the Capitol on January 6, “we” would get charged with every charge imaginable.

Two people familiar with former Trump White House counsel Pat Cipollone’s testimony Friday told CNN that the House select committee investigating January 6, 2021, did not ask him if he told then-White House aide Cassidy Hutchinson the day of the attack that they would “get charged with every crime imaginable” if they went to the US Capitol.

If asked, he would not have confirmed that particular statement, the sources said.

A separate source familiar with the committee told CNN, “The select committee sought information about Cipollone’s views on Trump going to the Capitol on January 6,” implying that the committee’s questions were focused on Cipollone’s perspective as opposed to his take on other witness’ testimony.

[snip]

Cipollone told the committee on Friday that he wasn’t giving legal advice to staff regarding movements on January 6. This came up during his testimony as part of a question not relating to the specific anecdote from Hutchinson.

It doesn’t mean that he didn’t say such a thing. Indeed, other outlets have said that he didn’t contradict anything she said. It means that, thus far at least, one of the six to ten witnesses who would be important witnesses to charge Trump for crimes beyond the obstruction and conspiracy charges framework DOJ has been explicitly pursuing since August is thus far unwilling to recall some of the more damning details of Hutchinson’s testimony. He may have reason to avoid it! After all, the pardons he was a party to before the insurrection — most importantly of Mike Flynn and Roger Stone — may implicate him in the later events, no matter how hard he tried on January 6 to prevent more bloodshed.

That’s an important detail to keep in mind as you read this NYT story, which has led the usual suspects to claim that DOJ has done nothing to pursue a Trump investigation.

The electrifying public testimony delivered last month to the House Jan. 6 panel by Ms. Hutchinson, a former White House aide who was witness to many key moments, jolted top Justice Department officials into discussing the topic of Mr. Trump more directly, at times in the presence of Attorney General Merrick B. Garland and Deputy Attorney General Lisa O. Monaco.

In conversations at the department the day after Ms. Hutchinson’s appearance, some of which included Ms. Monaco, officials talked about the pressure that the testimony created to scrutinize Mr. Trump’s potential criminal culpability and whether he intended to break the law.

Ms. Hutchinson’s disclosures seemed to have opened a path to broaching the most sensitive topic of all: Mr. Trump’s own actions ahead of the attack.

Department officials have said Ms. Hutchinson’s testimony did not alter their investigative strategy to methodically work their way from lower-level actors up to higher rungs of power. “The only pressure I feel, and the only pressure that our line prosecutors feel, is to do the right thing,” Mr. Garland said this spring.

But some of her explosive assertions — that Mr. Trump knew some of his supporters at a rally on Jan. 6, 2021, were armed, that he desperately wanted to join them as they marched to the Capitol and that the White House’s top lawyer feared Mr. Trump’s conduct could lead to criminal charges — were largely new to them and grabbed their attention.

Even while many took from this that DOJ is not investigating, the article — written by Katie Benner, probably the journalist with the best sources at the top of DOJ across administrations, and Glenn Thrush, whose background is as a political reporter and who exhibits little understanding of DOJ matters (but who is bylined on most of the stories about AUSA Thomas Windom) — also reported that Windom was asked to lead the fake electors investigation last fall, at least a month before Lisa Monaco confirmed it and possibly much earlier than that. It also describes that Merrick Garland was briefed on an “influencer” strand of the investigation in March 2021, which is consistent with when we know DOJ obtained Brandon Straka’s phone providing information on the Stop the Steal listserv, the VIP treatment, and possibly even events at the Willard.

Mr. Sherwin presented Mr. Garland with a strategy that included four teams of prosecutors, labeled A through D: “Team B,” already staffed by 15 lawyers, had begun looking into “public influencers and officials” linked to the attack, according to a copy of a memo shared with The New York Times.

There are strands of the investigation not mentioned in this — such as the Sidney Powell investigation, which started no later than September 2021, the way DOJ got a privilege review for Rudy Giuliani’s phones that would go through the insurrection, or the way Roger Stone has been a key focus of the Oath Keeper investigation since March 2021. And the piece doesn’t describe Monaco’s own public statement the day after Hutchinson’s testimony, which claimed, at least, that DOJ is “deep” into its January 6 probe.

All that said, I don’t doubt that Hutchinson did make DOJ consider previously unconsidered investigative next steps and I have even less doubt that former Assistant Attorney General Jody Hunt, the lawyer who shepherded Hutchinson through her more expansive testimony to the Committee in late June, has been in touch with DOJ.

But back to the Cipollone point with which I started: As I noted in my review of Hutchinson’s testimony, she gave absolutely crucial firsthand testimony about Cipollone, Mark Meadows, and Tony Ornato, as well as damning comments about Rudy Giuliani and Scott Perry, but with a few exceptions, those men were and are still the ones who would have the firsthand testimony about what Trump said and did. I noted, too, that on the topic about which Hutchinson had the most important firsthand knowledge of Trump’s mindset — his demand that the Secret Service take down metal detectors so his armed supporters could enter the official venue for his speech — she acknowledged his motivation stemmed in significant part from his narcissism.

Hutchinson’s testimony on a really critical point includes some ambiguity. In conversations at the White House and then later at the rally, Trump saw the crowd on January 6 and was furious more of his supporters weren’t inside the arena. He was aware many supporters were staying outside the arena because they didn’t want to go through the magnetometers because they had weapons. He asked to ditch the magnetometers because “they weren’t there to hurt him.” This detail is most important because it reflect[s] knowledge on Trump’s part they were armed, before he riled them up and sent them to the Capitol. But in a trial, he would excuse letting them into the rally itself by pointing to his long-standing crowd narcissism, exhibited most famously at his inauguration.

Read that post! It holds up! Including my point that her testimony will be most valuable for getting the testimony of others like Cipollone and Ornato, and it’ll make whatever charges DOJ uses to coerce Meadows’ cooperation more onerous and therefore more likely to be effective.

I also noted that Hutchinson’s testimony would not have been available in its current form without the process she has been through since February, which has since been laid out in detail in this piece. That process not only involved replacing the lawyer Trump provided her with, Stefan Passantino, with Hunt, but also depended on growing trust with Liz Cheney.

Now unemployed and sequestered with family and a security detail, Ms. Hutchinson, 26, has developed an unlikely bond with Ms. Cheney, a Wyoming Republican and onetime aide to former Secretary of State Colin L. Powell during the George W. Bush administration — a crisis environment of another era when she learned to work among competing male egos. More recently, as someone ostracized by her party and stripped of her leadership post for her denunciations of Mr. Trump, Ms. Cheney admires the younger woman’s willingness to risk her alliances and professional standing by recounting what she saw in the final days of the Trump White House, friends say.

[snip]

Over the next months, Ms. Hutchinson warmed to the idea of helping the committee’s investigation, according to a friend, but she did not detect the same willingness in Mr. Passantino.

“She realized she couldn’t call her attorney to say, ‘Hey, I’ve got more information,’” said the friend, who requested anonymity. “He was there to insulate the big guy.”

Mr. Passantino declined to comment.

At that point Ms. Hutchinson got in touch with Ms. Griffin, who had been cooperating with the committee herself. Ms. Griffin passed on Ms. Hutchinson’s concerns to Barbara Comstock, a former Republican congresswoman and outspoken critic of Mr. Trump. In an interview, Ms. Comstock said that she could have predicted Ms. Hutchinson’s predicament, recalling how she had once talked a young man out of joining the Trump administration. “I said, ‘You’re going to end up paying legal bills,’” Ms. Comstock recalled.

Ms. Comstock offered to start a legal-defense fund so that Ms. Hutchinson would not have to rely on a lawyer paid for by Trump affiliates. But this proved unnecessary. Jody Hunt, the former head of the Justice Department’s civil division under Jeff Sessions — Mr. Trump’s former attorney general and another pariah in Mr. Trump’s world — offered to represent her pro bono. Mr. Hunt accompanied Ms. Hutchinson to her fourth deposition in late June, when she felt more comfortable talking about Mr. Trump’s actions on Jan. 6. Everyone agreed it was time to speed up her public testimony.

Two realities have now taken hold for Ms. Hutchinson. One is that she will continue to offer information to the Jan. 6 committee, with Mr. Hunt as her counsel and Ms. Cheney as the committee’s designated interlocutor to her.

For better and worse, we’re all better off that Hunt will be sitting in on her DOJ interviews than Passantino, but we might not have gotten to this place without the involvement of Liz Cheney and other people, like Barbara Comstock, with whom this site has a very long contentious relationship.

So Hutchinson represents real progress — which is what the NYT story says! But the NYT story also makes clear that DOJ will continue to investigate known crimes, not people.

Days after Hutchinson’s testimony, I started but never finished a post attempting to revisit this framework for how DOJ seems to be approaching the investigation, included below in italicized type. They key point is that for each “nice to have” there’s the cooperation — coerced or voluntary — of a key witness who worked directly with Trump. Cassidy Hutchinson is not that witness. But she offers a way to get to those witnesses with a greater likelihood of success.

The other day, I noted that, while Cassidy Hutchinson’s testimony was courageous and powerful, many of the details she provided would need additional corroboration (from people like Pat Cipollone, who has since been subpoenaed) before being used to prosecute Donald Trump. Nevertheless, her testimony has led people who haven’t followed the investigation to again engage in speculation that Merrick Garland is sitting in an office somewhere pondering whether to push the “indict Trump” button or not. That misunderstands how such a decision would work.

That’s true, first of all, because it would not be Garland’s button to push. It would be a team of AUSAs working for DC US Attorney Matthew Graves, who would first get Graves’, then Lisa Monaco’s, and only then Garland’s approval. If and when Trump is charged, DOJ will be able to point to some career AUSAs (including Thomas Windom, whom NYT described the other day as someone who clerked for a conservative judge) who made the initial prosecutorial decision.

At this point, too, I think the question is not whether Garland (or, rather, the AUSAs) are sure they can convict Trump et al.

Every single thing in the public record shows they’re still taking steps to pursue that investigation, in part by seizing more records and in part by obtaining the witness testimony they would need. A prosecution becomes far easier if Pat Cipollone cooperates, not least because — Hutchinson’s testimony revealed — he warned ahead of time that Trump was exposed with the very same crimes that DOJ has been pursuing against everyone since last summer. Cipollone could be compelled by DOJ to testify, but there’s no sign yet that he has been. I presume Cassidy Hutchinson’s lawyer, Jody Hunt (who was Assistant Attorney General under Trump and who saw how badly Trump treated his boss, Jeff Sessions) is already in discussions about arranging her cooperation with DOJ, and the kind of detail she provided about what Cipollone will get DOJ a step closer to where they would be ready to get Cipollone’s testimony.

Everything that’s public (and I’m sure there’s a lot that’s not) suggests DOJ is working towards five kinds of conduct that Trump would exposed on: 1) coordination — through Stone and, Tuesday’s testimony confirms something I’ve been virtually the only one reporting since early 2021, Rudy — with the militias 2) plans with Stop the Steal that significantly involve Alex Jones’ role in bringing bodies that the militias used to occupy the Capitol 3) the fake electors plot, which is the illegal manifestation of the larger Big Lie 4) pressure on Mike Pence, which includes both an illegal order and real threats of violence 5) the separate illegal request of Brad Raffensperger (which could be charged in GA as early as this week [note: This did not happen, and/but also she appears to have expanded her scope significantly]).

DOJ is making visible signs of progress with many of these prongs, but some of those visible signs suggest any charging decision would be six months away at least. The reason Garland has not pushed a button marked “indict” yet, or why AUSAs haven’t presented a package for approval up a bureaucratic chain of command, is because before DOJ indicts they need to have both the comms in hand, as well as the cooperating direct witnesses to Trump’s actions and intent.

Crime in the Era of Encrypted Apps: The Relationship between the DOJ and January 6 Investigations into Fake Electors

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Yesterday, DOJ took a slew of overt steps in their investigation into the fake electors:

  • WaPo: Law enforcement activity targeting GA lawyer Brad Carver and Trump staffer Thomas Lane, subpoenas for GA GOP Chair David Shafer and Michigan fake electors
  • NYT: Subpoenas to Trump campaign aide in MI, Shawn Flynn, as well as Carver, Lane, and Shafer
  • CBS: Search warrants for NV GOP Chair Michael McDonald and Secretary James DeGraffenreid
  • CNN: Subpoena for Shafer, a warrant for Brad Carver’s phone, information on a GA Signal chat

Even though some of these reports cite the late January batch of subpoenas DOJ sent to people who had declined to participate in the fake elector scheme, the timing of the action — taking place one day after the hearing on the scheme — has set off the usual set of whinging that DOJ isn’t doing as much as the January 6 Committee.

Yet even the first of these stories — the WaPo one — provides reason to believe that DOJ is not chasing the January 6 Committee on this investigation at all. And as I keep pointing out, in April 2021, DOJ took steps — starting on Lisa Monaco’s first day in office — that will be critical to this investigation.

I’ve laid out how, by seizing Rudy Giuliani’s phones in conjunction with his Ukraine influence peddling investigation on April 28, DOJ has made the content available for the January 6 investigation at whatever time they were able to show probable cause for a warrant. That’s because the privilege review covered all content from the phones that post-dates January 1, 2018 and the privilege review was conducted prior to any review for relevance, so it would cover content whether or not it related to Ukraine.

As this table lays out, the review on half the devices DOJ was able to get into (there were two the passwords for which it had not cracked by April) included content to date of seizure on April 28, 2021.

Special Master Barbara Jones turned over the last of this material on January 21, days before Monaco confirmed that DOJ is investigating the fake elector scheme. In April, purportedly to conduct an interview in advance of an imminent decision on Rudy’s Ukraine influence-peddling, DOJ asked for his help to get into the last several phones (the numbers in this story don’t match Barbara Jones’ reports, but CNN may suggest there were two newly discovered phones; there has been no overt activity in the Special Master docket since then).

All of which is to say that whatever material Rudy, a prolific texter, had on his phones about the fake elector scheme he was central to would have been available to DOJ with a warrant since January, but that’s only true because DOJ started this process on Monaco’s first day on the job.

Even in spite of that (and the timing of Monaco’s announcement of the investigation into the fake electors), like many people, I believed DOJ might have been chasing the January 6 Committee investigation. Except several details revealed in recent days makes it clear that DOJ had developed information independent of the Committee.

For example, I first learned that Boris Epshteyn was involved from this slide in Tuesday’s hearing, which left Epshteyn’s name unredacted whereas the copy docketed in the John Eastman litigation redacts it.

But Kyle Cheney noted that Epshteyn’s name was first made public in a footnote in the associated court filing. That filing was dated May 26.

Before May 26, according to earlier NYT and CNN stories on DOJ’s investigation into the fake electors, prosecutors were already asking about Epshteyn’s role. Here’s CNN:

Former Trump attorney Rudy Giuliani, adviser Boris Epshteyn and campaign lawyer Justin Clark are among the list of names the witness was asked about, the source said.

Yesterday’s WaPo story similarly described prosecutors asking about the involvement of someone — Bernie Kerik — whose role the January 6 Committee has not yet (as far as I’m aware) public disclosed.

Those earlier subpoenas sought all documents since Oct. 1, 2020, related to the electoral college vote, as well as any election-related communications with roughly a dozen people in Trump’s inner circle, including Rudy Giuliani, Bernard Kerik, Boris Epshteyn, Jenna Ellis and John Eastman.

One would-be Trump elector in Georgia, Patrick Gartland, had been appointed to the Cobb County Board of Elections and Registration and believed that post meant serving as an elector would have created a conflict of interest for him. Still, two FBI agents recently came to his home with a subpoena and asked whether he had any contact with Trump advisers around the time of the November election. “They wanted to know if I had talked to Giuliani,” Gartland said.

One possible explanation (though not the only one) is that DOJ has a more Rudy-focused understanding of the elector scheme than the Committee, which would make sense if they had materials from Rudy’s devices that the Committee doesn’t have.

To be clear: I think it likely that DOJ has or will exploit the January 6 investigation into the same topic in at least two ways.

First, I think it likely that DOJ piggybacked on the Committee’s privilege fight with Eastman. They’ve always had the ability to serve a warrant on Chapman University for the same emails the Committee has been receiving covertly, after all, which is the kind of thing DOJ loves to do in an investigation. But by doing so in the wake of Judge David Carter’s privilege decisions, DOJ can get crime-fraud excepted communications without a Special Master process like the one they used with Rudy.

And, because the January 6 Committee is obtaining sworn depositions from some of the people involved, DOJ may get evidence of false statements — from people claiming to have no knowledge of the larger scheme or corrupt intent of the fake electors — that they could use to coerce cooperation down the road.

With the warrants in NV and GA, DOJ is taking the kind of overt acts that sometimes precede arrests. Because DOJ can get email and social media content covertly, it almost always does that before serving subpoenas (to minimize the chance someone will destroy evidence in response). Only after that, usually, do they seize someone’s phone. That kind of stuff takes months. So there’s no way DOJ could have gotten there overnight based entirely off watching the January 6 hearing.

In Tuesday’s hearing, it became clear that the GOP will try to, institutionally, blame Trump for all this. That may not be true. But it may be useful for DOJ investigators.

Update: Fixed the names of the NV GOPers.

Update: Fixed Brad Carver’s name.

Maybe Merrick Garland Already Made Some of the Decisions Everyone Thinks Are Pending?

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Jack Goldsmith has weighed in on the debate over whether and if so how Trump should be charged in the NYT. He tries to capture three things that Merrick Garland might consider before charging Trump, which include:

  • Whether charging Trump would require a Special Counsel to avoid any conflict of interest stemming from Garland’s appointment by Joe Biden
  • Whether there’s enough evidence to convict the former President
  • Whether the national interest is served by such a prosecution

It’s a worthwhile piece that has, at least, generated some substantive discussion.

Garland might face a prosecutorial decision on something other than obstruction

But I wanted to throw out some things that might change the calculus on these three questions. First, Goldsmith’s column is premised on prosecuting Trump for crimes relating to January 6, focusing on 18 USC 1512(c)(2) and 18 USC 371.

The two most frequently mentioned crimes Mr. Trump may have committed are the corrupt obstruction of an official proceeding (the Jan. 6 vote count) and conspiracy to defraud the United States (in working to overturn election results). Many have noted that Mr. Trump can plausibly defend these charges by arguing that he lacked criminal intent because he truly believed that massive voter fraud had taken place.

Mr. Trump would also claim that key elements of his supposedly criminal actions — his interpretations of the law, his pressure on Mr. Pence, his delay in responding to the Capitol breach and more — were exercises of his constitutional prerogatives as chief executive. Mr. Garland would need to assess how these legally powerful claims inform the applicability of criminal laws to Mr. Trump’s actions in what would be the first criminal trial of a president. He would also consider the adverse implications of a Trump prosecution for more virtuous future presidents.

I think it’s not necessarily the case that the first prosecutorial decision Garland would face for Trump would be for one of these January 6 crimes, nor is it certain that these would be the January 6 charges he would be considering.

For example, Trump has potential criminal exposure that dates to before and after his time in the Presidency, which for various reasons might be easier to charge sooner. Trump has criminal exposure in Georgia for trying to cheat; if he were charged there, it might make it easier to charge him federally with an associated crime (including 18 USC 371). Similarly, other charges in relation to January 6 might be easier to charge, including aiding and abetting the violence, conspiring in violation of 18 USC 372 to intimidate Pence out of certifying the vote, or wire fraud in conjunction with the way he monetized the Big Lie.

It’d be one thing, after all, to charge Trump for pressuring Pence and another thing to charge him for trying to get Pence killed. The mens rea requirements for other charges would not give Trump the same invitation to pretend he really believed he had won. And with regards to Trump’s grift, even Laura Ingraham reacted negatively to the evidence of his Big Grift (though that may only because Republicans are seeking a way to clear the decks for Ron DeSantis).

So the prosecutorial decision that Garland might face would differ considerably based on what crime line prosecutors and US Attorneys were asking for approval to charge.

DOJ has already put in place measures to guard the independence of the investigation

Second, my impression is that Garland would view appointing a Special Counsel not only as unnecessary, but also counterproductive.

I wrote about why it would be counterproductive here. The short version of that is that if Trump committed a crime in conjunction with January 6, he did so in part by conspiring some subset of the 1,000 people who have already been charged or are being investigated now, in an investigation that upwards of 140 prosecutors have worked.

In Merrick Garland’s recent speech, he revealed there are 140 prosecutors working on this investigation, half normally assigned to the DC US Attorney’s office (that is, people who now report to Graves), and the other half coming from other units. Some of those units are functional, with the most notable being National Security’s Terrorism prosecutors, but also Public Corruption. Far more of them are detailees assigned from different US Attorneys offices. Some of these detailees, working on the simpler cases, are doing 6 month stints, then handing off their cases. Others, including key prosecutors involved in the Proud Boys investigation, appear to be seeing the investigation through. Just as one example, there are three prosecutors on the case against the five Florida men who traveled with Joe Biggs the day of the attack; they are located in Chicago, Brooklyn, and Seattle. Just accounting for the number of prosecutors involved, this investigation is larger than most US Attorneys Offices in this country, and far too large for a Special Counsel to handle.

Then there’s this magical notion about convening a grand jury. The existing January 6 investigation is already using somewhere between four and six. Public Corruption prosecutions, like that of Steve Bannon, are using the same grand juries that the militias are being prosecuted through.

If Trump were to be charged with conspiring with any number of those 1,000 people, then you’d want to use one of the grand juries that has already reviewed big chunks of this investigation. In my opinion, you’d want to make sure that Trump’s prosecution was charged via the same process that the thousand other alleged criminals involved that day were, in part to make it clear that his was the crime of a violent mob, not a backoffice presidential decision.

And even as it would be counterproductive to appoint a Special Counsel in this investigation, I think Garland has already taken steps to ensure the independence of the investigation. For starters, while Deputy Attorney General Lisa Monaco’s office has kept a very close watch on the investigation (many would say too close a watch), the prosecutorial decisions are being made out of DC US Attorney’s Office. And while Garland was confirmed with broad approval, Matthew Graves had no recorded opposition at his confirmation (though Ron Johnson held up the confirmation). No Special Counsel will have any more recorded buy-in from Republicans than the existing team does.

Meanwhile, among the things Garland’s DOJ did, at a moment when prosecutors may have realized a Trump prosecution was possible, was to set up a framework under which prosecutors could obtain sensitive information on Trump’s role in January 6 without any involvement from Joe Biden. The most important of those is the privilege review for January 6-related materials the January 6 Committee deems material to their investigation. It has gone like this:

  • Jan 6 Committee makes requests
  • The Archives identifies materials responsive to those requests
  • Biden reviews those materials and either waives privilege or withholds the information
  • Trump sues to withhold the materials but the Supreme Court denies his lawsuit
  • The Committee receives the materials

Once materials have been through that process, DOJ could simply serve a warrant on the Archives to obtain the same materials. Neither Trump nor Biden nor any of the rest of us would know (and this is consistent with things past investigations into Presidents have done, including the Mueller investigation). This process would bypass one of the problems Mueller had investigating Trump, in which Trump waived privilege for the investigation but not for any further use of it.

But DOJ would have various other means to obtain pertinent potentially privileged information, including:

  • Using a January 6-specific warrant to obtain materials seized from Rudy Giuliani in response to a warrant approved on Lisa Monaco’s first day in office; as I laid out here, the privilege review of those materials included all materials through the date of seizure
  • Obtain a warrant to Chapman University for all John Eastman emails that Judge David Carter approved to be turned over to the January 6 Committee
  • Review for an obstruction determination all the emails and texts sent over personal accounts that Mark Meadows had originally withheld from the Archives in violation of the Presidential Records Act
  • Review the already identified materials tied to the referral for stealing classified information from NARA
  • Obtain a January 6-specific warrant for materials already obtained from Sidney Powell in the fraud-related investigation into her grift

I wrote more about some of these methods here.

Obtaining sensitive information like this doesn’t eliminate the political sensitivities of an Attorney General appointed by Joe Biden making a prosecutorial decision regarding Trump. But it ensures that DOJ can entirely shield the investigation from any Biden involvement.

None of these things make the question easier. But they do suggest that Garland may have already put into place ways of addressing them.

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

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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

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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.