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Donald Trump’s Incorrect Shell Game of Appropriated Spending

Yesterday, I argued that Trump would not yet defy courts because he wants to invite the Supreme Court to sanction his dictatorial powers, and so wants a clear appellate record.

Boy howdy was that a short-lived theory. Trump says he is appealing two orders that are not yet ripe for appeal in two lawsuits involving Democratic Attorneys General — RI Judge John McConnell’s order and follow-up order that the government pay grants to the states [appeal] and Paul Engelmeyer’s order ordering Treasury to stay out of the payment system [request for stay pending appeal] — as well as in Special Counsel Hampton Dellinger’s challenge to his dismissal.

So by the time Republicans figure out how they’re going to use reconciliation to pass Trump’s policies, SCOTUS may have already agreed to gut Congress’ power of the purse.

But the record in the spending cases is anything but clean.

In one of the two cases challenging DOGE’s [sic] access to Treasury systems — the DC case before Colleen Kollar-Kotelly — DOJ decided after the fact that Marko Elez, the DOGE [sic] boy who had been granted a copy of Treasury systems to sandbox, was actually a Treasury employee.

With the benefit of more time to investigate the facts over the weekend, Defendants came to understand that Marko Elez, who, at the time of the hearing was employed by the Department of the Treasury, had not, in fact, been designated by the Treasury Department as a Special Government Employee (SGE), as counsel stated at the February 5 hearing. Mr. Elez, was, however, a Treasury Department employee. Treasury hired Mr. Elez as Special Advisor for Information Technology and Modernization, Departmental Offices, Office of the Chief of Staff, under Treasury’s authority to establish temporary transitional Schedule C positions. See 5 C.F.R. § 213.3302. Although Mr. Elez could have been designated as an SGE because he was slated to perform temporary duties either on a full-time or intermittent basis for not more than 130 days, the Treasury department Ethics office did not designate Mr. Elez as a Special Government Employee, meaning that he in fact had to comply with additional ethics requirements that are not required for SGE positions.

[snip]

Defendants also wish to notify the Court that, as stated in the Declaration of Thomas Krause, Jr., filed yesterday, in State of New York v. U.S. Department of the Treasury, Case No. 25 Civ. 01144 (JAV) (S.D.N.Y.), Mr. Elez resigned from Treasury on February 6, 2025, and he returned all Treasury and BFS equipment and credentials the same day. See Exhibit 1, ¶ 11. Moreover, in that case, on February 8, the Court entered a temporary restraining order restricting who may access Treasury systems. See Ex. 2. Those restrictions are in addition to those imposed by this Court’s Order entered February 6.

This filing included Thomas Krause’ declaration (submitted in the Treasury suit filed by states, which Trump is appealing) describing that Elez had resigned (but not addressing whether he has been reinstated; in retrospect, it seems the declaration was written specifically to avoid calling Elez a DGE). But it didn’t include the underlying filing in the case, which in a footnote confesses that Elez had a full copy of the BFS system in a sandbox, falsely claiming that Krause addressed this in his declaration.

2 Since January 20, 2025, one other Treasury employee—Marco Elez—had “read only” access to or copies of certain data in BFS payment systems, subject to restrictions, and access to a copy of certain BFS payments systems’ source code in a “sandbox” environment. Krause Decl. ¶ 11. Mr. Elez resigned on February 6, 2025 and returned all Treasury and BFS equipment and credentials the same day. Id

This means that this correction doesn’t correct another false claim DOJ made to Kollar-Kotelly: that Elez’ access had been “read only.” And DOJ hasn’t told Judge Jeanette Vargas (to whom the New York case was assigned after Engelmeyer issued the TRO) that Elez is a full Treasury employee and so, if he has been reinstated, potentially excluded from Engelmeyer’s order.

In the USAID case, where Trump might believe he can coax a favorable ruling from his own first term appointee, Carl Nichols, Peter Marocco submitted a long, obnoxious declaration claiming they had to shut down USAID because of widespread insubordination among USAID employees. (I’d quote from it but the declaration breaks local rules requiring OCR filings.)

But after Marocco submitted that filing, the career AUSAs on the case submitted a declaration that included this correction.

Additionally, although Secretary Rubio’s January 24, 2025 directive only froze future contract obligations, id. ¶ 3, payments on existing contracts were paused as well as part of efforts by agency leadership to regain control of the organization’s spending and conduct a comprehensive review of its programs. See id. ¶¶ 5–10. Counsel for Defendants was unaware of this development prior to the hearing. [my emphasis]

Marocco confesses that existing contracts “were paused” by him this way:

Furthermore, many of USAID’s pre-existing programs were in conflict with the directives and priorities of the President and Secretary, and therefore were inconsistent with the public interest and foreign policy judgments of the Executive Branch. Given the scale of these programs, an ad hoc review of these conflicting programs would unduly burden the execution of the President’s other foreign policy priorities. A blanket pause with a waive-in process was the more efficient and effective path.

He describes this notice Marco Rubio sent to Congress, which makes no mention of pausing ongoing work. Then he continues to describe how existing programs “were paused” by him.

The first step of this review, in essence, involved the majority of USAID pausing a substantial portion of its ongoing work — going “pencils down” — so the Secretary and USAID leadership could gain control of the organization that included some employees who had refused to comply with lawful directives by the President and Secretary, directives designed to identify wasteful or fraudulent programs or those contrary to the foreign policy interests of the United States. The pause of ongoing work and use of paid administrative leave have enabled Agency leadership to begin a thorough review of USAID’s operations and align its functions to the President’s and Secretary’s priorities, without continued noncompliance by former Agency leadership and management undermining those priorities. Pausing a majority of USAID’s work was, and remains, necessary to continue this thorough review into the noncompliance issues first identified, as well as to continue to examine USAID’s processes and the manner in which USAID funds its programs.

In other words, the people that Marocco calls noncompliant are noncompliant because they’re following the law, a law uncontroverted by Trump’s order or even Rubio’s notice to Congress.

As Nichols said when he issued the TRO ordering USAID to reinstate employees, whether or not this involved existing or only prospective contracts was an issue of some contention in the hearing.

Plaintiffs finally seek a TRO as to Secretary Rubio’s January 24, 2025 order freezing funding to USAID’s contractors. As a threshold matter, the Court notes that there are significant factual questions about what the practical effect of that order is. The government argued at the hearing that the order only prevents USAID from entering “new obligations of funding”—leaving it free to pay out contracts that it entered into prior to January 24, 2025—and indeed, the text of the order does seem to permit that result. Dep’t of State, Memo. 25 STATE 6828. Yet, plaintiffs maintained at the TRO hearing that payments on existing USAID grants have been frozen, preventing certain “contracting officers” employed by USAID from using agency funds to fulfill monetary commitments that the agency had already made.

This factual dispute is relevant to plaintiffs’ TRO arguments, but ultimately is not dispositive of them. Plaintiffs allege that, by some legal mechanism, USAID contracting officers can be held personally liable for existing contractual expenses that USAID is supposed to, but does not, pay. Plaintiffs thus argue that those officers face irreparable harm as a result of the funding freeze because they will be left “holding the bag” when USAID imminently fails to disburse funds. Separately, plaintiffs argue that the general population of USAID employees will be emotionally harmed by the agency’s inability to pay its contractors because they will be stuck “watching a slow speed train wreck” as the agency reneges on its humanitarian commitments.

Even assuming the funding freeze indeed prevents payments on existing grants in the way plaintiffs claim (instead of merely preventing USAID from entering new obligations, as the government suggested during the hearing), the Court concludes that plaintiffs have not demonstrated resulting irreparable harm.

But because this suit involves employees, rather than states or other recipients of funds from Treasury (as is the case in the two suits where DOJ has said it will appeal), these plaintiffs themselves are not being injured because they’re still being paid.

DOJ is hiding behind career AUSAs making claims they likely do not know are false so as to shut down appropriations that have already been approved.

And they are appealing each instance in which a plaintiff has genuinely been injured (the states and Hampton Dellinger’s firing) in hopes — or maybe expectation? — after the Circuits deny appeals that are not yet ripe, SCOTUS will step in and render Congress impotent.

Update: USAID Inspector General somehow managed to put together a report on the damage the chaos is having. Among other things, it finds that the cuts have incapacitated any means of vetting disbursements to keep them out of the hands of terrorists.

USAID describes partner vetting as a risk-mitigation tool to “ensure that American taxpayer funds do not benefit terrorists and their supporters.” Currently, partner vetting is required for programming in Afghanistan, Iraq, Lebanon, Pakistan, Syria, West Bank/Gaza, and Yemen where designated terrorist organizations such as Hamas, Hezbollah, ISIS, and Ansar Allah (also known as the Houthis) operate. Before the Agency awards a contract, grant, or cooperative agreement in these locations, the proposed awardee must submit to USAID data needed to vet the organization and its key personnel. The same vetting must be undertaken before an aid organization issues a subaward. While USAID OIG has previously identified gaps in the scope of partner vetting, 10 USAID staff have reported that the counter-terrorism vetting unit supporting humanitarian assistance programming has in recent days been told not to report to work (because staff have been furloughed or placed on administrative leave) and thus cannot conduct any partner vetting. This gap leaves USAID susceptible to inadvertently funding entities or salaries of individuals associated with U.S.-designated terrorist organizations.

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Trump Appointee Carl Nichols Enjoins Trump from Stranding USAID Workers

There was a big development (and a few smaller ones) in DOGE’s [sic] attempts to start shutting down big parts — Treasury and Office of Personnel Management — of the government.

Before I look at those, I want to look at the order Trump appointee Carl Nichols (a former Clarence Thomas clerk) issued in a lawsuit two unions filed to enjoin the USAID shutdown.

The unions claimed the USAID shutdown violated:

Separation of powers
Take care clause
Administrative Procedure Act because it was in excess of statutory authority
Administrative Procedure Act because it was arbitrary and capricious

They described the death and destruction the shutdown has caused and will cause.

The agency’s collapse has had disastrous humanitarian consequences. Among countless other consequences of defendants’ reckless dissolution of the agency, halting USAID work has shut down efforts to prevent children from dying of malaria, stopped pharmaceutical clinical trials, and threatened a global resurgence in HIV.40 Deaths are inevitable. Already, 300 babies that would not have had HIV, now do.41 Thousands of girls and women will die from pregnancy and childbirth.42 Without judicial intervention, it will only get worse. The actions defendants plan to take on Friday will “doom billions of dollars in projects in some 120 countries, including security assistance for Ukraine and other countries, as well as development work for clean water, job training and education, including for schoolgirls under Taliban rule in Afghanistan.”43

And they asked for a Temporary Restraining Order on certain actions the government took, which Nichols (after a hearing) construed this way:

Plaintiffs frame their TRO request as pertaining to one overarching event: the allegedly “illegal and unconstitutional dismantling of USAID.” Mot. at 9. But at the TRO hearing, it became clear that plaintiffs’ allegations of irreparable injury flow principally from three government actions: (1) the placement of USAID employees on administrative leave; (2) the expedited evacuation of USAID employees from their host countries; and (3) Secretary Rubio’s January 24, 2025 order “paus[ing] all new obligations of funding . . . for foreign assistance programs funded by or through . . . USAID.” Dep’t of State, Memo. 25 STATE 6828. The Court finds that a TRO is warranted as to the first two actions but not the third.

The request for a Temporary Restraining Order included declarations describing the injuries the shutdown has and will cause, including this one describing the harm a sudden move will cause to an employee’s two special needs kids.

This directive will have profound impacts on the wellbeing of my kids’ personal, educational and psychological development. I have two children at Post: a seven-year-old in first grade and a two-year-old in preschool. Both have received “Class 2” medical clearances from State MED and thus they receive a Special Needs Education Allowance (SNEA) for occupational therapy (OT). My older child has documented gross and fine motor skill delays due to prenatal intrauterine growth restriction (IUGR). My younger child also has documented gross and fine motor skill delays due to torticollis. Both children receive OT services in conjunction with their schooling in a purposefully integrated manner, a best practice promoted by specialists at the State Department ‘s Office of Child and Family Program (CFP) who oversee their care. Additionally, my older child who is in first grade was recently diagnosed by a licensed medical professional with ADHD and anxiety. They are now receiving Cognitive Behavioral Therapy (CBT) at Post from a licensed therapist and the Embassy Medical Unit is tracking their care.

Uprooting my children from their school, OT service providers, and child therapist in the middle of the school year will undoubtedly set back their development with possible lifelong implications. In the United States, we currently have no home or ties to a specific school district. My kids have lived overseas nearly their entire life in service of our country. There will be an inevitable gap – possibly a long one – before they are back in a stable routine of integrated schooling, OT services, and psychological services, a routine that medical professionals have determined they need to overcome developmental delays, and in the case of my seven-year-old, ADHD.

Or this one, describing the danger of losing access to security protections in high risk locations.

Personal Safety Risks: The shutdown could have life-threatening consequences for PSC colleagues serving in high-risk locations. The abrupt shutdown of government devices and access was highly reckless to colleagues in active conflict zones, such as Ukraine and Somalia. Friends and colleagues lost access to the Embassy safety communication channels, and many could no longer use a safety app called “Scry Panic 2.0,” which is installed on government-furnished equipment. In addition, many PSCs serving USAID abroad were unsure if they remained under U.S. chief-of-mission authority, which guarantees access to U.S. Government resources to ensure staff safety and accountability, including for emergency evacuations. U.S. Department of State officials, who were tasked with developing a plan to get USAID officials home, had no instructions or information on the next steps.

Many USAID PSCs work in high-risk environments where access to security resources is critical. I have heard from overseas colleagues who have now lost access to Diplomatic Security systems, meaning they can no longer coordinate security protocols, evacuations, or emergency procedures. Without official communication from USAID leadership, these PSCs remain in dangerous locations without clarity on whether they still have institutional protection. Others fear that in the event of a medical emergency or security threat, they will be forced to rely on personal funds or external assistance, as USAID has not provided guidance on whether existing security protocols still apply to them.

A risk exacerbated, the declaration explains, by the false claims launched against USAID staffers.

PSCs are also at increased risk of physical harm due to the threats, harassment, and misinformation that have accompanied the shutdown. The reckless rhetoric spread on social media and in political discourse has put USAID personnel at risk. I have heard from colleagues who have been labeled as criminals, supporters of terrorists, or Marxists—simply for doing their jobs.

High-profile figures, including Elon Musk and his supporters, have fueled this misinformation, creating a hostile environment where USAID staff fear for their personal safety. With individuals involved in the January 6th insurrection now released, there is a heightened sense of danger that USAID employees could be targeted next. I have colleagues who no longer feel safe in their own homes, with some refusing to leave family members alone out of fear that someone radicalized by online misinformation may try to harm them.

Judge Nichols cited both of those injuries in enjoining the government. He cited the latter risk when disputing the government claim that putting 2,700 USAID employees (500 of whom were already put on leave, the others would have been as of yesterday) was just a “garden-variety personnel action.”

Taking the TRO factors somewhat out of order and beginning with irreparable injury, the Court finds that plaintiffs have adequately demonstrated that their members are facing irreparable injury from their placement on administrative leave, and that more members would face such injury if they were placed on administrative leave tonight. Many USAID personnel work in “highrisk environments where access to security resources is critical.” ECF No. 9-10 ¶ 14. No future lawsuit could undo the physical harm that might result if USAID employees are not informed of imminent security threats occurring in the countries to which they have relocated in the course of their service to the United States. The government argued at the TRO hearing that placing employees on paid administrative leave is a garden-variety personnel action unworthy of court intervention. But administrative leave in Syria is not the same as administrative leave in Bethesda: simply being paid cannot change that fact.

And he cited the former injury when ruling that immediately recalling the officers overseas would create real injury, one not counterbalanced by any pressing government need.

Specifically, whereas USAID’s “usual process” provides foreign service officers with six to nine months’ notice before an international move, plaintiffs allege that USAID has now issued a “mandatory recall notice” that would require more than 1400 foreign service officers to repatriate within 30 days. Mot. at 18.

Plaintiffs have demonstrated that this action, too, risks inflicting irreparable harm on their members. Recalling employees on such short notice disrupts long-settled expectations and makes it nearly impossible for evacuated employees to adequately plan for their return to the United States. For instance, one of plaintiffs’ members attests that, if he is recalled from his foreign post, he will be forced to “[u]proot” his two special-needs-children from school in the middle of the year, “set[ting] back their development with possible lifelong implications.” ECF No. 9-5 ¶ 6. He also attests that, because his family has no home in the United States and his children have “lived overseas nearly their entire life,” there will be “an inevitable gap—possibly a long one—before they are back in a stable routine . . . that medical professionals have determined they need to overcome developmental delays.” Id. Other of plaintiffs’ members tell similar stories, explaining that the abrupt recall would separate their families, interrupt their medical care, and possibly force them to “be back in the United States homeless.” See ECF ECF No. 9-4 ¶ 7; ECF No. 9-5 ¶ 8; ECF No. 9-9 ¶ 6. Even if a future lawsuit could recoup any financial harms stemming from the expedited evacuations—like the cost of breaking a lease or of abandoning property that could not be sold prior to the move—it surely could not recoup damage done to educational progress, physical safety, and family relations.

But perhaps the most important language in Judge Nichols’ short opinion was his disdain for the government’s flimsy claims that the USAID employees have to be put on leave because of vague claims of fraud.

When the Court asked the government at the TRO hearing what harm would befall the government if it could not immediately place on administrative leave the more than 2000 employees in question, it had no response— beyond asserting without any record support that USAID writ large was possibly engaging in “corruption and fraud.”

That is, when pushed to justify this purge to a sympathetic Trump appointee, DOJ simply couldn’t substantiate claims of fraud.

To be sure, Nichols only enjoined the government until February 14. And he didn’t reverse the freeze on funding — notwithstanding that the government likely lied in saying that the freeze only applied to prospective funding obligations.

As a threshold matter, the Court notes that there are significant factual questions about what the practical effect of that order is. The government argued at the hearing that the order only prevents USAID from entering “new obligations of funding”—leaving it free to pay out contracts that it entered into prior to January 24, 2025—and indeed, the text of the order does seem to permit that result. Dep’t of State, Memo. 25 STATE 6828. Yet, plaintiffs maintained at the TRO hearing that payments on existing USAID grants have been frozen, preventing certain “contracting officers” employed by USAID from using agency funds to fulfill monetary commitments that the agency had already made.

But Trump’s administration had a chance to substantiate the wild claims of fraud and abuse that Elon Musk has leveled at USAID.

And Carl Nichols was unimpressed.

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Who Needs Intelligence Sharing?

February 3, 2025/26 Comments/in 2024 Presidential Election, Department of Justice, Foreign Policy, Intelligence, State Department, Trump Administration /by Peterr

On January 27th, an AP story appeared on the news website Military.com with the headline “Intelligence Sharing by the US and Its Allies Has Saved Lives. Trump Could Test Those Ties.” On the surface, it reads like one of those analysis pieces that come out when the White House changes from one party to the next, with the added twist of knowing what the first Trump administration was like.

The Associated Press spoke with 18 current and former senior European and U.S. officials who worked in NATO, defense, diplomacy or intelligence. Many raised questions and concerns about Trump’s past relationship with America’s spies and their ability to share information at a time of heightened terror threats and signs of greater cooperation between U.S. adversaries.

The importance of trust

The U.S. and its allies routinely share top-secret information, be it about potential terror threats, Chinese cyberattacks or Russian troop movements. America’s closest intelligence partners are New Zealand, Australia, Canada and Britain, and it often shares with other nations or sometimes even adversaries when lives are at stake.

[snip]

Cooperation particularly between the U.S. and the U.K. is “strong and robust enough to withstand some turbulence at the political level,” said Lord Peter Ricketts, former U.K. national security adviser and current chair of the European Affairs Committee of the upper chamber of the British Parliament.

However, any strong intelligence relationship is underpinned by trust, and what if “trust isn’t there?” Ricketts said.

Ricketts’ question is no longer a hypothetical. This is the reality faced by intelligence services who in the past have been friendly with the US intelligence community. The AP put out their story on January 27th, and that seems like years ago. Today this reads like a warning.

The takeover of USAID that has played out this past week is *not* just a battle over who runs offices in DC. The bulk of USAID’s staff work overseas, alongside their local partners. When phone calls from these overseas missions back to DC go unanswered, and when US staffers abroad are told to stand down, all those local partners are going to get very, very nervous, and not just because their paychecks stop. They’re going to talk to others in their government, trying to find out what it going on. At the same time, they will be providing input (either directly or indirectly) to their own country’s intelligence service, as their spooks add it to whatever they are learning from elsewhere. In the US, folks worry about those who are losing their jobs; overseas, these fights will result in people dying, like those who don’t get the clean water, medical care, or disease prevention measures like malaria nets. Those other countries are watching with horror the stories of Musk’s minions breaking into sensitive databases, over the objections of trusted career people, and wonder what of their own information is now in the hands of a privateer, and if the same this is (or will be) going on at the CIA, DIA, and other US intelligence agencies.

I guarantee you that all these other countries are watching the battle over USAID much more carefully than folks in the US.

Or look at the targeting of General Mark Milley, widely respected by his counterparts among our allies and within their intelligence services. OK, Biden pardoned him to protect him, but Trump withdrew his security clearance, and also his personal security detail. On January 29th, newly confirmed Secretary of Defense Pete Hegseth launched a process to investigate Milley, seeking to strip him of at least one star, cut his retirement pay, and punish him further. Given what the US attorney for DC is doing by going after DOJ attorneys for investigating the rather noticeable break-in of the US Capitol on January 6, 2021, it’s not hard to imagine that Hegseth’s henchmen will be rather thorough in their work and ruthlessly push aside anyone who gets in their way.

Now imagine you are a member of a foreign intelligence service — perhaps the head, or perhaps a mid-level staffer whose specialty is the US. You see the USAID invasion. You see the public decapitation of the FBI. You see the targeting of career DOJ officials. You see Hegseth paint a target on the back of Milley (and others, like John Bolton and John Brennan). You see all this, much of it in the bright light of public reporting. You hear more from your contacts, who paint more detailed pictures of these purges and fights. You see all this, and you ask yourself two questions, over and over again.

1) Are the things we shared with the US intelligence community in the past safe from being revealed in public, and thus causing us harm?
2) Can we trust the US intelligence community with information we might share with them in the future?

Given what we’ve seen over the last week, the answers to these questions are becoming more and more clear: 1) no and 2) no.

I haven’t talked to those “18 current and former senior European and U.S. officials who worked in NATO, defense, diplomacy or intelligence” to whom the AP spoke. The AP headline was hypothetical – “Trump could test those ties” – but now on February 3rd, it’s real. Trump has been f’ing around with those intelligence service ties, and he’s about to find out what happens.

The short answer is becoming clear, as Trump’s vision of America First becomes America Alone.

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Imagine if Dana Bash Knew Trump Had Been President Before?

July 8, 2024/47 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

After letting Donald Trump lie non-stop in the debate, Dana Bash invited his aspiring running-mate, Marco Rubio, onto her show to tell the same lies.

Ostensibly, she was asking Rubio about whether the Supreme Court immunity decision violated Rubio’s own stated dodge on accountability for January 6: “let history, and if necessary, the courts judge the events of the past.”

But Rubio quickly took over the segment, spending 37 seconds, and then another 22 seconds, falsely claiming that Joe Biden’s Administration was using DOJ as a legal weapon against Donald Trump. Rubio claimed, “The evidence is in the headlines every day. Every you day you open up it’s another Republican going to jail somewhere.” Bash let Rubio drone on at length, before interrupting to state there’s no evidence that Biden is doing this.

Worse still was Bash’s failure to rebut Rubio’s lies about Donald Trump’s first term. Rubio claimed, “I can’t think of a single prominent Democrat who was chased around, persecuted, prosecuted.” He followed up, “He was President for four years, he didn’t go after Hillary Clinton, he didn’t go after Joe Biden, he didn’t go after Barack Obama, he didn’t go after any other consultants. We didn’t see under him what we’re seeing now.” In one uncomfortable moment, Rubio cited the debate at which Bash had let Trump lie over and over about his future plans to criminalize his opponents, as if it represented the truth. Rubio then stated again that Trump, “was President before and he didn’t do it then.”

Those are all lies.

Those are all lies that Bash has a responsibility to debunk.

After Trump demanded it, Hillary Clinton remained under investigation — based off Peter Schweizer’s political hit job, Clinton Cash — for the entirety of Trump’s term, with a declination memo issuing only in August 2021.

Career prosecutors in Little Rock then closed the case, notifying the F.B.I.’s office there in two letters in January 2021. But in a toxic atmosphere in which Mr. Trump had long accused the F.B.I. of bias, the top agent in Little Rock wanted it known that career prosecutors, not F.B.I. officials, were behind the decision.

In August 2021, the F.B.I. received what is known as a declination memo from prosecutors and as a result considered the matter closed.

“All of the evidence obtained during the course of this investigation has been returned or otherwise destroyed,” according to the F.B.I.

Rubio mentioned, “consultants.” After Trump demanded prosecutions from John Durham, Durham indicted DNC cybersecurity lawyer Michael Sussmann on flimsy charges. When Durham wildly misrepresented a report Sussmann made — showing the use of Yota phones inside Executive Office of the Presidency during the Obama Administration — Trump even issued suggested Sussmann should be put to death.

Yes, Sussmann was acquitted, but not before leaving his firm and spending untold legal fees to defend against a manufactured indictment and death threats from the former President.

Bash even seems ignorant of the first impeachment, in which Trump withheld funds appropriated to Ukraine in an attempt to extort the announcement of an investigation into Joe Biden and his kid.

On at least two more occasions, Donald Trump personally intervened into the criminal investigation of Joe Biden’s son. One was shortly after the NYPost unveiled material from a hard drive copy of a laptop attributed to Hunter Biden (as described in Bill Barr’s memoir), days before the 2020 election.

In mid-October I received a call from the President, which was the last time I spoke to him prior to the election. It was a very short con-versation. The call came soon after Rudy Giuliani succeeded in making public information about Hunter Biden’s laptop. I had walked over to my desk to take the call. These calls had become rare, so Will Levi stood nearby waiting expectantly to see what it was about. After brief pleasantry about his being out on the campaign trail, the President said, “You know this stuff from Hunter Biden’s laptop?”

I cut the President off sharply. “Mr. President, I can’t talk about that, and I am not going to.”

President Trump hesitated, then continued in a plaintive tone, “You know, if that was one of my kids—”

I cut him off again, raising my voice, “Dammit, Mr. President, I am not going to talk to you about Hunter Biden. Period!”

He was silent for a moment, then quickly got off the line.

I looked up at Will, whose eyes were as big as saucers. “You yelled at the President?” he asked, confirming the obvious. I nodded. He shook his head in disbelief.

Trump intervened again on December 27, 2020, when — during the conversation where Trump first threatened to replace Jeffrey Rosen if he didn’t back Trump’s false claims of election fraud — Trump also said, “people will criticize the DOJ if [Biden, to which Richard Donoghue added an “H” after the fact] not investigated for real.”

These non-public demands regarding the investigation into Hunter Biden accompanied public demands to “Lock him up!” Trump even raised Hunter Biden in between calls to march to the Capitol on January 6.

But Bash’s worst failures involve doing an interview with the Ranking Member of the Senate Intelligence Committee and not asking him about two investigations conducted under Bill Barr that implicate confirmed and suspected disinformation with Russian ties.

As part of Barr’s effort to investigate Hillary Clinton for calling out Donald Trump’s embrace of Vladimir Putin, for example, starting in 2020 (as Trump demanded results), the Attorney General and John Durham relied on materials obtained from Russia that the Intelligence Community considered likely disinformation, a claim that Hillary had made a decision to “to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services.” As it is, there’s a dispute about the use of those materials, with John Brennan, claiming in his House deposition last May that this claim involved a misrepresentation of what happened.

Mr. Brennan. Not out of hand, but I think it was — a week or two prior to that, there was a selective release of information that included my briefing notes to President Obama in the White House Situation Room that was misrepresenting, in fact, the facts, where it was pushed out in redacted version. And I did think that was a very, very unfortunate, unprofessional, unethical engagement on the part of the Director of National Intelligence in a Presidential election.

Marco Rubio is one person who could weigh in this dispute.

But Durham didn’t stop there. He then fabricated a claim that wasn’t included in the suspected Russian disinformation: That Hillary planned to make false claims about Trump’s fondness for Russia.

First, the Clinton Plan intelligence itself and on its face arguably suggested that private actors affiliated with the Clinton campaign were seeking in 2016 to promote a false or exaggerated narrative to the public and to U.S. government agencies about Trump’s possible ties to Russia.

At a time when Trump was publicly demanding results from Durham, then, the Special Counsel made shit up, politicizing intelligence, in an attempt to find charges against Hillary Clinton.

Bash let Rubio claim it didn’t exist.

Then there’s the blockbuster of which political journalists like Bash (and her colleague, Kaitlan Collins) appear aggressively ignorant.

In January 2020 (this was in the same time period he and Durham were fabricating claims about Hillary Clinton), Bill Barr set up a side channel to ingest dirt from Rudy Giuliani, including some from known Russian spy Andrii Derkach. Via still unexplained means, that side channel discovered false claims made by FBI informant Alexander Smirnov, who has subsequently claimed to have extensive ties to Russian spies. Even though the claim was easily debunked, that dedicated side channel nevertheless failed to discover real problems with the fabricated claim that Joe Biden had been bribed by Mykola Zlockevsky. Indeed, days after Trump pressured Bill Barr about investigating Hunter Biden, on October 23, 2020, Richard Donoghue ensured the fabricated claim would be assigned to David Weiss for further investigation.

Worse still, through the efforts of Republican congressmen and Bill Barr, that fabricated claim of a Joe Biden bribe appears to have played a key role in the collapse of Hunter Biden’s plea deal and subsequent felony conviction.

For the entirety of the time that these twin efforts to use suspected Russian disinformation to frame Hillary Clinton and Joe Biden, Marco Rubio has been either Chair or Ranking Member of the Senate Intelligence Committee — one of the few people who can demand answers when the nation’s intelligence and counterintelligence system is so badly abused that Donald Trump’s political enemies can be framed, potentially in cahoots with Russian spies.

And Dana Bash had Marco Rubio sitting right there, in a position where she, in turn, could demand answers.

Instead, she let him lie and lie and lie about Trump’s past efforts to criminalize his political rivals.

Hunter Biden is on his way to prison in significant part because of Trump’s success at criminally targeting his political enemies. And Dana Bash never told viewers that Trump already has a documented record of doing just that.

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Jim Risch Demands that Avril Haines Formally Tell Us He Is Lying

May 17, 2024/25 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

The Senate Intelligence Committee had a hearing on election interference yesterday. Among the pieces of news is that the US intelligence community is sharing intelligence with European partners in advance of the EU Parliamentary vote next month to alert them to foreign interference efforts, something that was pretty clear to me but which journalists and European-based privacy activists had denied.

The entire hearing was undergirded, however, by a truth and a lie aspiring Donald Trump running mate and Vice Chair of the committee, Marco Rubio, offered up.

The truth is that if the IC says foreign spooks are trying to hurt one candidate, supporters of the opposing candidate will refuse to believe that claim.

For eight years, of course, Republicans have institutionally refused to believe that Russia tried to hurt Hillary and tried to help Trump. That made supporters of both parties trust their party more than the spooks. And in the aftermath, Trump has carried out a sustained campaign to get his followers to distrust The Deep State.

So the problem, at least for the MAGAts that Rubio wants to make him Vice President, is worse than Rubio said.

Rubio made several false claims in his comment, however.

Rubio: No matter who puts it out there, the candidate on the other side of it, their followers are going to question whether it’s the government interfering in the election themselves. And it’s not helpful, and I use this example because it’s a very recent one, when the whole laptop situation happened, the Hunter Biden laptop, a number of former intelligence officials, I get it they’re formers, no longer in the employ of any of these agencies, but that title carries weight, all signed a letter saying, “this has all the hallmarks of a Russian disinformation campaign.” We know now that it was not a disinformation campaign. I don’t want to get into the particulars of what was on it, I’m just saying it was not a Russian disinformation campaign.

But the result of it was that social media companies would not allow anyone to post the articles — and there was a media blackout; it could not be reported in any other except for one place, and so what happens as a result of that, whether it had an influence on the election or not, the result of it now is that we have some section of the country who repeatedly says things like the intelligence community interfered. [my emphasis]

Most obviously, Rubio claimed that “the result of [the letter 51 former spooks sent out] was that social media companies would not allow anyone to post the articles.” The letter from the spooks was dated October 19. The social media companies started throttling links to the NYPost on October 14. Days before the spooks’ letter, the social media platforms had already begun reversing their decision.

Rubio’s claim of causation defies physics.

That’s not his only false claim. Rubio certainly believes that the release of the hard drive was not a Russian disinformation campaign. Which is not what the former spooks said anyway — they said it might be a Russian information operation. But even four years on, it’s not certain what happened to Hunter Biden’s laptop before it was turned over to the FBI, and Hunter claims with some evidence that it was altered by Rudy before it was released to the NYPost.

I laid out some reasons we couldn’t be sure back in October, when Bret Baier made this false claim in a gotcha with Leon Panetta.

There are still more. For example, the FBI’s apparent uncertainties about even the date of a payment made from Hunter’s Venmo to someone the government claims is a stripper suggest they have not reviewed what happened to Hunter’s digital life after one of his devices was stolen in August 2018. Hunter said in January 2019 — before the laptop ultimately shared with John Paul Mac Isaac was packaged up — that he believed that theft happened when he was with a Russian sex worker. More recent filings have made clear that — contrary to a whole lot of credulous reporting — the laptop shared with the FBI is not an exact match with his iCloud account, which means device content made while in treatment from Keith Ablow does not have the same kind of validation that other data does. And given there are signs of compromise to Hunter’s accounts going back years, it’s not clear anyone has ruled out earlier compromise.

The FBI has never even done an index of everything on the laptop.

Unless someone else in government did such analysis — unless David Weiss’ prosecutors are sitting on more thorough analysis than they have shared with Hunter Biden — the FBI simply never did the work they would have needed to do to find out if the President’s son was compromised by Russians, whether spies or criminals, or some other foreign actor.

I don’t doubt that Rubio believes that the IC is more certain though.

Things disintegrated from what I think was a good faith concern (albeit one without any kind of accountability) on Rubio’s part to a rant by Jim Risch.

He thinks it is Avril Haines’ job to call out people who have access to intelligence who make false claims. He says he’s as concerned that 51 private citizens made a claim that remains true — that, in their opinion, the laptop, “has all the classic earmarks of a Russian information operation” — as he is that Russia will attack US democracy again,

Risch: I’m as concerned with this sort of thing as I am with foreign interference on the election process. This was deplorable, these 51 people saying this was Russian activity when we all know now that it wasn’t. I mean, these were 51 people that had very significant influence in American society and they sent this letter saying this was Russian influence.

Again, Jim Risch says it is as bad that experts express their well-substantiated opinion as it is that hostile nations target our democracy.

He demanded that Haines promise to go out and tell the American people if private individuals say something false this year.

What about this sort of thing, where it’s domestic interference, that’s obviously false. Who’s got the responsibility for standing up and looking in the camera and saying, folks, don’t count on this it’s not true. Is that going to be your responsibility?

Haines: Sir, I think … look … my responsibility with respect to formers that speak out and provide the wealth of their experience and knowledge in such circumstances is not to determine what they should or shouldn’t say, but rather to ensure that they’re not disclosing classified information, that we’re protecting that, and dealing with that, it’s not —

Risch: What if it’s false? using their robes of, … having knowledge of security matters and intelligence matters and you know it’s false. Is that your response, or you just say, nah I’m not gonna get involved in that.

Haines tried to correct Risch’s false representation of what the spooks actually said, noting that their experience made them suspicious (but stopping short of stating as fact that it was an information operation).

Haines: I don’t understand, because I think — first of all, I think they said that their experience makes them deeply suspicious of that activity.

Risch lied and said they had said something more.

Risch: They went a little further than that, I think, but I’ll take your characterization of that. And if you know that that’s false? Then you come into the information that it’s false, is it your obligation or not your obligation to stand up, look in the camera and say, folks, when you’re voting don’t take this into account.

Haines: Sir I don’t think I could make sure that I’ve even read everything that a former might have said or that anybody else is on these issues, so no, I don’t think that it’s appropriate for me to be determining what is truth and what is false in such circumstances.

It went on and on, with Jim Risch wailing about people with privileged access to intelligence — people like him — who make false claims. Sadly, no one ever strongly laid out Risch’s false claims, and Mark Warner even professed to be sympathetic to Risch’s view.

Risch: But what if you know. You’re sitting here, you’re the center of intelligence in America, right there, and this has come out and you know it’s false. What’s your obligation? Or do you have any?

Haines: I think my obligation is to ensure that the best intelligence is being provided to the President, to the Federal government, to the Congress, and where possible, to the American people, through declassification, which we would do.

Risch: That’s not calling out someone who stands up and purports to have intelligence information that you know is false?

Haines: Sir, if I were to — first of all, I’m not sure I’m the best arbiter of what is true and false, and secondly–

Risch: Let’s say, in a particular instance, you’ve seen the paper. You know it’s false. Let’s take that instance. What do you do?

Haines: I mean, it depends on the situation. If we’re talking about a fake video that was

Risch: It’s just what I said: someone with intelligence credentials stands up and says I know this from an intelligence standpoint and you know, as the Director of National Intelligence, that it’s false.

Haines: No, I do not consider that to be part of my responsibility. If there is disinformation that is put forward — false information — then we have the capacity to authenticate it as false, we will do so, basically to our customers, and there will be a process [inaudible and crosstalk] it may be to the public, it might be classified information, it might be anything else, I don’t what the circumstances are. It’s too much of a hypothetical.

Risch: I’m not making progress so I’m going to give it back to you.

Warner: My sense is it would be the responsibility of the FBI if it were proven. I’m not sure if we want the Director of National Intelligence commenting about a domestic statement made by an American, but I understand your point.

Risch: Well, that’s the purpose of this hearing, is to find out how American voters are going to be, uh, kept informed if it is true or false.

Warner: It is, our purview, at least, is focused on that foreign influence. But I understand your point.

Of course, the logical end point of Risch’s complaint is quite clear: He has demanded that Avril Haines go make a public statement that, in spite of Risch’s privileged access to intelligence, he is lying. And Marco Rubio is too!

It doesn’t stop there.

If Haines is supposed to police truth claims by private citizens, she would be obliged to come out publicly and say that Rudy’s public claims about Joe Biden were not just false, but fabrications of the Russian spies he was soliciting.

According to Jim Risch, not only should John Ratcliffe have publicly debunked Donald Trump’s false claims about Italy hacking voting machines via the thermostat (or whatever version of that nutjob story he was telling), but Haines today should formally debunk false claims that Trump is making about Solar Winds as part of his criminal defense.

Jim Risch is demanding that Avril Haines intervene and call him — and call Donald Trump — liars.

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DOJ Has at Least One Card Left to Play: Congress’ Instinct for Self-Preservation

September 10, 2022/86 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

Last night, Trump and DOJ submitted their competing plans for a Special Master to Judge Aileen Cannon. As I laid out, Trump’s plan is a transparent effort to stall the entire investigation for at least three months, and after that to bottle up documents he stole — those with classified markings and those without — at NARA, where he’ll launch new legal fights in DC to prevent further access.

Judge Cannon has ordered Trump to weigh in on the government’s motion for a partial stay of her order, asking her to permit the investigative team access to any documents marked as classified, by 10AM on Monday. Trump will object for the same insane logic he gave in his Special Master proposal: That if he can get a private citizen Special Master to override the government’s classification determination, then he can declare the documents — even Agency documents that would be government, not Presidential Records — part of his own records at NARA.

Because Trump didn’t share his choices until after close of business day on Friday, both sides also have to inform her what they think of the other’s Special Master suggestions — Barbara Jones (who was Special Master for the review of both Rudy Giuliani’s and Michael Cohen’s devices) and retired George W. Bush appellate judge Thomas Griffith for the government, and retired EDNY and FISC judge Raymond Dearie and GOP partisan lawyer Paul Huck Jr for Trump — on Monday.

Then, if Cannon has not relented on the investigative side for documents marked as classified by Thursday, DOJ will ask for a stay of that part of her decision from the 11th Circuit, pending the rest of their appeal (the scope of which remains unknown and may depend on her other decisions this week).

Cannon’s decision on whether to permit investigators to access the documents marked as classified may provide the government leverage over the Special Master choice, which could create new bases for appeal. None of the choices for Special Master are known to be cleared, much less at the TS/SCI levels that would be needed to review the documents Trump stole, though Dearie, who was on FISC as recently as 2019, surely would be easily cleared as such.

That doesn’t matter for the government’s preferred approach. The Special Master won’t get any known classified document under their approach.

They would, however, under Trump’s approach (which more closely matches Cannon’s current order). And so DOJ will have to agree to give clearance to whatever person ends up as Special Master under the Trump plan.

The same Supreme Court precedent that undergirds all these arguments about classification authority, Navy v. Egan, is specifically a ruling about the Executive’s authority to grant or deny clearances. The government could deny any of the proposed Special Masters clearance — and might well do so, to deny Huck access. Likewise, the government might well deny Trump’s lawyers (at least Evan Corcoran, who is likely either a witness or subject of the obstruction side of the investigation) clearance for such a review as well.

So if Cannon doesn’t grant the government’s motion for a stay, then she effectively gives the government several more levers over her control of the Special Master process.

She probably doesn’t give a damn.

There are two other developments we might expect this week, though.

First, last Wednesday, DOJ asked and Chief Judge Beryl Howell granted permission to unseal the parts of the search warrant affidavit mentioning the same two grand jury subpoenas that she unsealed for mention in DOJ’s response to Trump’s Special Master motion. (I’m looking for the person I owe a hat-tip to this for.) Since receiving that permission, DOJ has not yet gone back to Magistrate Judge Bruce Reinhart to request further unsealing of the affidavit; there’s not even the tell-tale sealed filings in the docket that ended up being prior such requests.

If and when DOJ does ask for further unsealing, it might reveal more information about Trump’s actions — and, importantly for the question of who can be cleared for the Special Master review, Evan Corcoran’s. There are several entirely redacted paragraphs that likely tell what happened in response to the May 11 subpoena. There’s also a likely detailed discussion of the probable cause that Trump — and others — obstructed the investigation, some of which could be unsealed with mention of the surveillance video.

The government response before Cannon didn’t address the evidence of obstruction (or the June 24 subpoena) in much detail. Simply unsealing references of that subpoena in the affidavit might provide more damning information about Trump’s efforts to hide classified documents from DOJ.

More importantly, on Tuesday, the House returns from August recess. It’ll be the first time since the search that both houses of Congress are in town. And in their Motion for a Stay, the government noted (and Judge Cannon did not object) that it did not understand Cannon’s order to prohibit a briefing to “Congressional leaders with intelligence oversight responsibilities.”

5 The government also does not understand the Court’s Order to bar DOJ, FBI, and ODNI from briefing Congressional leaders with intelligence oversight responsibilities regarding the classified records that were recovered. The government similarly does not understand the Order to restrict senior DOJ and FBI officials, who have supervisory responsibilities regarding the criminal investigation, from reviewing those records in preparation for such a briefing.

This seems to telegraph that DOJ plans to brief the Gang of Eight — which includes Nancy Pelosi, Adam Schiff, Kevin McCarthy, Mike Turner, Chuck Schumer, Mark Warner, Mitch McConnell, and Marco Rubio — about what documents Trump stole, possibly this week. Turner and to a lesser degree Rubio have been demanding such a briefing.

And at a minimum, after such a briefing you’d see everyone run to the press and express their opinions about the gravity of Trump’s actions. Because neither DOJ nor Aileen Cannon can prevent these members of Congress from sharing details about these briefings (especially if they’re not classified), you should be unsurprised everyone to provide details of what Trump stole.

That might devolve into a matter of partisan bickering. But two things might moderate such bickering. First, Marco Rubio is on the ballot in November, and Val Demings has already criticized his knee-jerk defense of Trump.

Just as importantly, Mitch McConnell, who badly would like to prevent Democrats from expanding their majority in the Senate and just as badly would like the MAGA Republicans to go away, really doesn’t want to spend the next two months dodging questions about Trump’s crimes.

If not for Trump’s demand for a Special Master, DOJ likely would have put its head down and mentioned nothing of this investigation until after the election. But by demanding one — and by making such unreasonable requests — Trump has ensured that the investigation into his suspected violations of the Espionage Act and obstruction will dominate the news for at least a few more weeks.

Even if DOJ doesn’t brief the Gang of Eight, even if that doesn’t lead to damning new details and recriminations from being made public, the public nature of the Special Master fight will suck all the oxygen out of the next few weeks of campaign season, at least, just as it contributed to Joe Biden enjoying one of the most positive mid-term Augusts for any President in the last half-century.

But if new specifics about Trump’s negligence and efforts to obstruct the investigation are made public, then November’s election will be precisely what Republicans are trying to avoid it being: not just a response to the Dobbs ruling overturning protection for abortion access, but a referendum on the way Republicans have sacrificed American security in their fealty to Donald Trump.

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Team Trump Knows Details of the Investigation that Jay Bratt Does Not — and Trump’s Already Leaking Them

September 7, 2022/164 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

The WaPo report that one of the documents seized from Trump’s resort pertained to “a foreign government’s military defenses, including its nuclear capabilities” is currently 27-paragraphs long. Of those 27 paragraphs, three quote Trump’s attorney, Christopher Kise, using the story to claim that the harm Aileen Cannon imagined in her opinion enjoining the government had come to pass.

Christopher Kise, a lawyer for Trump, decried leaks about the case, which he said “continue with no respect for the process nor any regard for the real truth. This does not serve well the interests of justice.”

“Moreover, the damage to public confidence in the integrity of the system simply cannot be underestimated. The responsible course of action here would be for someone — anyone — in the Government to exercise leadership and control. The Court has provided a sensible path forward which does not include the selective leak of unverifiable and misleading information. There is no reason to deviate from that path if the goal is, as it should be, to find a rational solution to document storage issues which have needlessly spiraled out of control.”

[snip]

Kise, the Trump lawyer, cited that part of the judge’s reasoning Tuesday night, saying “the damage to public confidence in the integrity of the system simply cannot be underestimated.” He said the special master appointment by the court provides “a sensible path forward which does not include the selective leak of unverifiable and misleading information. There is no reason to deviate from that path if the goal is, as it should be, to find a rational solution to document storage issues which have needlessly spiraled out of control.”

These Kise quotes may have been added in by Josh Dawsey, who was added to the story after an earlier version that lacked the Kise quotes.

Seven paragraphs are dedicated to laying out Aileen Cannon’s opinion, including some passages that are so ridiculous, they deserve a factcheck.

She also reasoned that a special master could mitigate potential harm to Trump “by way of improper disclosure of sensitive information to the public,” suggesting that knowledge or details of the case were harmful to the former president, and could be lessened by inserting a special master into the document-review process.

[snip]

Cannon wrote that Trump’s position as a former president means “the stigma associated with the subject seizure is in a league of its own,” and that a “future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.”

The fact that over a third of this story reporting on leaked information about the things found in the search focuses on the manufactured prospect that leaks to the press about the investigation would be worse than leaks of the actual documents advises some caution — especially since several of the claims in the story are attributed to single sources and all are described only to be “familiar with” the search or the matter.

A document describing a foreign government’s military defenses, including its nuclear capabilities, was found by FBI agents who searched former president Donald Trump’s Mar-a-Lago residence and private club last month, according to people familiar with the matter,

[snip]

Only the president, some members of his Cabinet or anear-Cabinet-level official could authorize other government officials to know details of these special-access programs, according to people familiar with the search, who spoke on the condition of anonymity to describe sensitive details of an ongoing investigation.

[snip]

It was in this last batch of government secrets, the people familiar with the matter said, that the information about a foreign government’s nuclear-defense readiness was found.

[snip]

One person familiar with the Mar-a-Lago search said the goal of the comprehensive list was to ensure recovery of all classified records on the property, and not just those that investigators had reason to believe might be there.

[snip]

Investigators grew alarmed, according to one person familiar with the search, as they began to review documents retrieved from the club’s storage closet, Trump’s residence and his office in August. The team soon came upon records that are extremely restricted, so much so that even some of the senior-most national security officials in the Biden administration weren’t authorized to review them. One government filing alluded to this information when it noted that counterintelligence FBI agents and prosecutors investigating the Mar-a-Lago documents were not authorized at first to review some of the material seized.

As described, these sources are familiar with the need to recover certain documents and the complexities about classification and clearance. The description of how, during the search, alarm grew about the sensitivity of the documents is sourced to someone who seems unfamiliar with public details about where this document, by definition, would have been found (in the leatherbound box). While I suspect it’s not, it could even come from someone — like a Secret Service agent onsite or someone watching video remotely — who merely observed the search.

Like I said, while I have no reason to doubt the report (indeed, I think it highly plausible, based on the date, that one of the visible documents in DOJ’s picture from the search pertains to JPCOA and therefore to Iran’s “military defenses, including its nuclear capabilities”), I would caution about the motives of those behind it.

Especially since, for almost a week, Team Trump has been privy to parts of the investigation that Jay Bratt, the prosecutor overseeing the investigation, is not.

Close to the beginning of last Thursday’s hearing, Judge Cannon had the filter lawyers share their status review with Trump’s lawyers.

MR. BRATT: So, Your Honor, we have the two filter attorneys present here. We have not seen it; and, certainly, our main concern would be that there was nothing in there that would then get out and taint members of the investigative side. So I would defer to them as to whether the whole document can be unsealed and provided to Defense or whether only a portion. I’m sort of speaking blindly about it.

[snip]

THE COURT: Good afternoon. My question, Mr. Lacosta, is directed only at the status report not exhibits A or B. What is your position with respect to making that available to Plaintiff’s counsel?

MR. LACOSTA: Your Honor, we have no objection with the pleading itself being made to Plaintiff’s counsel, both the pleading, exhibit A and exhibit B, but we would ask that it remain under seal.

THE COURT: Okay. So for now, please, I’ll ask my team to make those documents available to Plaintiff’s counsel. And because those are lengthier, I’m going to take a 15-minute break for Plaintiff’s counsel to review them. The Court is in a brief recess.

THE COURTROOM DEPUTY: All rise. (Recess was had at 1:11 p.m.; and the proceedings Resumed at 1:26 p.m.)

THE COURT: You may be seated. All right. Has Plaintiff’s counsel had enough time to review that status report?

MR. KISE: We have, Your Honor.

THE COURT: Okay. What is your position on the unsealing of the report itself, minus the exhibits?

MR. KISE: Your Honor, respectfully, we think that both the report itself and the exhibits should remain under seal at this time. The report itself does make some substantive references to privileged material; and, in an abundance of caution, we want to make sure that we don’t get into a situation where there is a waiver claim of some kind. So, respectfully, we would ask the Court to keep it under seal. There may come a time, after we understand a little bit more, where that position could change; but certainly for now, Your Honor, we don’t want to have a waiver situation.

THE COURT: Okay. Well, seeing as it is a joint request at this point to continue the seal as to the filter review team status report and associated exhibits, that document will remain under seal, and the parties should be careful to adhere to that in their presentation today.

This step was actually fairly central to the asymmetry that Cannon used to find some ownership interest in medical and tax documents that Trump might not even own. Bratt couldn’t rebut Cannon’s representations about the material because he is specifically prevented from seeing these materials until after privilege determinations get made.

Significantly, Kise seemed amenable to releasing the content of the material so long as it didn’t involve a waiver of privilege claims.

And Trump just tweeted about precisely this material — material the filter attorney had asked to share with Trump’s lawyers last Thursday, but Cannon prohibited.

There should be no way that a nuclear-related document was mentioned in that privilege progress report. Based on court filings, there are just three items that were initially placed in the potentially privileged bucket that have classification markings.

One is Top Secret (buried along with clippings from 1995!). But at least as described, it doesn’t bear compartment markings.

Trump team has knowledge about things that Jay Bratt does not, but that doesn’t likely extend to that nuclear document.

I mean, Trump likely has knowledge of what documents were in his leatherbound box. But unless he’s confessing to storing that in his closet directly, his team is likely not the source for that part of this story.

On TeeVee this morning, Marco Rubio — who seems to be staking his Senate seat on groveling to Trump — claimed that the only people who have knowledge of the investigation are at DOJ (he also egregiously misstated what happened after Trump refused to fully comply with a subpoena for the marked documents). That’s definitely not true of the most sensitive documents seized there, which an entire apparatus of secrecy must be involved with. But as of last Thursday, we can say with certainty that there are aspects of the investigation that Trump’s team knows more about than the guy leading the investigation.

And Trump is already making claims about things that prosecutors cannot and have not accessed.

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

August 12, 2022/66 Comments/in 2016 Presidential Election, 2022 Mid-Term Election, Leak Investigations /by emptywheel

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

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All Republican Gang of Eight Members Condone Large-Scale Theft of Classified Information, Press Yawns

August 9, 2022/124 Comments/in 2020 Presidential Election, Leak Investigations, Media, Press and Media /by emptywheel

The Ranking Member of the Senate Intelligence Committee went on a four tweet rant yesterday, complaining that the FBI is conducting an investigation into the suspected large-scale theft of highly-classified materials.

The House Minority Leader used the instance of a lawfully executed warrant in support of a national security investigation to call for an investigation not into the man suspected of stealing code word documents, but instead, of Attorney General Merrick Garland for authorizing this investigation into a classified breach.

The Ranking Member of the House Intelligence Committee, Mike Turner, more appropriately asked for a briefing, but even after admitting he hadn’t had one yet and claiming (dubiously) that he didn’t know of the suspected massive theft of highly classified information, scoffed at the seriousness that such a large-scale compromise of classified information might cause.

Mitch McConnell weighed in, belatedly, to demand transparency about an investigation into stolen secrets.

The country deserves a thorough and immediate explanation of what led to the events of Monday. Attorney General Garland and the Department of Justice should already have provided answers to the American people and must do so immediately

These men are all entrusted with the protection of Americans intelligence secrets. But when faced with a choice of putting party or America’s security first, they immediately rushed to protect their party, even while admitting they don’t know the facts of the underlying investigation.

And in spite of the fact that these men have all engaged in minimizing the large-scale compromise of classified information with their rants, virtually every press outlet has reported their comments as more horse race journalism, one side against the other, as if top Republicans attacking the FBI for trying to protect classified secrets is not itself newsworthy.

The lazy-ass press couldn’t even be bothered to show how all these men, especially Marco Rubio, made wildly inconsistent statements when Jim Comey or Hillary Clinton were suspected of mishandling far less sensitive intelligence. Nor did the press bother asking these men about the destruction of DHS (including Secret Service) and DOD records that Congress itself had already asked for before magnifying their comments.

They just let these men turn this into a partisan fight rather than a serious legal investigation, all for free!

Update, 8/10PM: Included Mitch McConnell’s statement.

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No One Wants to Work [For You] Anymore: The End of Oligopsony

May 16, 2021/51 Comments/in Culture, Domestic Policy /by Rayne

[NB: Note the byline above, thanks. /~Rayne]

There are few ways faster to piss me off than to say, “Slackers don’t want to work” in response to the lack of candidates for low-wage jobs.

pic.twitter.com/8dwz2tB2I3

— ɿɘyoM nwɒʜƧ (@shawnmoyer) May 10, 2021

This is what it looks like when a monopsonic or oligopsonic labor market is broken. It looks like workers can pick and choose the opportunity which best suits their needs rather than grabbing the first opportunity offered them because they are in precarity.

An oligopsony (from Greek ὀλίγοι (oligoi) “few” and ὀψωνία (opsōnia) “purchase”) is a market form in which the number of buyers is small while the number of sellers in theory could be large. This typically happens in a market for inputs where numerous suppliers are competing to sell their product to a small number of (often large and powerful) buyers. … [Wikipedia]

But there are more than one buyer (monopsony) or even very few buyers (oligopsony) of labor, you might say. Superficially you’d have a point.

Inside a one-mile stretch of the main thoroughfare where I live in Midwestern Suburbia, I can find 8-12 signs advertising job openings right now. I’ve lived here since the late 1970s and I’ve never seen this many postings for jobs.

Every single one of these jobs pays between $3.67 (Michigan’s minimum tipped hourly wage) and $15.00 an hour. None of them are full time, most have variable schedules, and only one place assures workers one weekend day off every week. None of them offer health care or childcare assistance of any kind. None of them offer enough hours regularly with enough compensation to pay for a one-bedroom apartment within walking distance, and likely not within a 10-mile radius.

Until the pandemic, these employers were able to tell workers what they’d pay, take it or leave it. They could act in concert without having to coordinate to set market pricing because it was simply understood by workers that hourly workers’ pay fell in this range and it was an employers’ market.

Employers have acted like a cartel, with collusion on price fixing for labor enabled by other monopolistic entities like Facebook and Google.

Workers may have thought they had some inside information through access to technology, but the same resources which informed them what to expect for compensation also told employers what to indicate as expected compensation. It told them what their competitors were paying.

Further, employers could buy the continuation of their high profits, I mean, low wage environment, simply by donating to a member of Congress directly or through a business association like the U.S. Chamber of Commerce. These same purchased entities also did their best over the last several decades to reduce workers’ rights and suppress unionization.

It’s been cheaper and more reliable to buy a GOP member of Congress than to increase automation or to pay workers a living wage.

It’s also worked so well for so long that idiots like Sen. Marco Rubio unquestioningly parrot employers’ complaints as plain fact, ignoring how many voters are workers while sucking up to potential business donors:

.@marcorubio: “I’m here to tell you what small businesses are telling me and I believe are telling everyone that’s here, and that is that enhanced unemployment benefits are creating an incentive for people not to return to work until they expire.” https://t.co/WHiRKsE993 pic.twitter.com/y2DBSG9JAw

— The Hill (@thehill) May 13, 2021

Never mind the cost of living for low-wage workers, though.

Miami builds housing for wealthy out-of-towners at the expense of its working and middle classes. The region’s level of inequality is now the second-worst in the US, on par w/ Panama and Colombia: https://t.co/7RJJYjEZui https://t.co/XAyNORjLeZ

— Nicholas Nehamas 🏝 (@NickNehamas) May 15, 2021

Seriously, Marco Rubio is a bought-and-paid-for moron who, along with the rest of the GOP, could give a shit about the lives of the working class.

1. Miami is now the 3rd least affordable metro on the country on the basis of housing cost to income. It is less affordable than San Francisco, Silicon Valley or NY. Only LA and San Diego or are less affordable. https://t.co/8yLaOpMj3b

— Richard Florida (@Richard_Florida) May 16, 2021

What the pandemic has done is broken the undocumented employer cartel and exposed the lack of bargaining power low-wage employees have had for decades. That unemployment compensation — a ridiculously low figure which doesn’t truly provide subsistence income — is more than what employers have paid these workers is revealing. They’ve gotten away with forcing precarity on workers to keep profits up, distorting whether their business models were legitimate. Some of the precarity is bound up in deliberately unlawful behavior including wage theft.

With a bare minimum of unemployment and pandemic aid, these workers have had breathing room to decide whether to go back to work and risk their health, or wait for more people to be vaccinated. They’ve had financial space to stay with their kids who still don’t have adequate childcare available or adequate support should schools need to transition back to remote classes on short notice.

These workers have also simply had enough — enough putting themselves at risk, jeopardizing their families’ health, enough of being bullied by employers and customers alike.

guys it’s happening pic.twitter.com/Nf0OWZQXEe

— KING LATIFAH (@HaritoMorales) May 8, 2021

…

the workers at this chipotle said no more exploiting us pic.twitter.com/a99FHWc5vq

— brands getting owned (@BrandsOwned) May 8, 2021

…

pic.twitter.com/znVbBQDQO3

— The Nap Ministry (@TheNapMinistry) May 7, 2021

This is just pathetic — a sandwich? Employers are going to respond to all that’s wrong with current working conditions by chumming applicants with sandwiches?

its like corporations are trying everything but paying people fairly pic.twitter.com/OhSIJAATcu

— Karina Soni (@karinasoni) May 7, 2021

McDonald’s franchises have been offering cash ranging from $50 in Florida to $500 in Pennsylvania to applicants who showed up for an interview. At least one franchise is alleged to have called the state’s unemployment bureau to turn in applicants who didn’t accept their employment offer, in an effort to terminate their unemployment benefits.

All these nasty anti-worker machinations just to avoid paying a living wage, which employers know is the reason they aren’t landing applicants:

So, in an effort to attract new employees, a Tampa McDonald’s is now promising $50 to anyone who just shows up for an interview.

Local McDonald’s franchise owner Blake Casper, who also owns Oxford Exchange, told Business Insider that a manager at his Dale Mabry and Chestnut location came up with the idea, but far so it hasn’t really yielded much success. …

Of course, one way to attract new employees is to just pay them more, and while he hasn’t done it yet, Casper told Business Insider he’s now considering raising starting wages to $13. As of now, according to a job posting on Indeed.com for the same Dale Mabry McDonald’s location, new employees can make up to $11.50 an hour.

Last year, more than 60% of Florida voters approved a constitutional amendment to raise Florida’s minimum wage to $15 per hour by the year 2026.

Workers clearly believe 2026 is too long to wait for a living wage — and $15 an hour in 2026 may not be a living wage by then, given the rate at which real estate investors have forced rental prices out of reach for low-wage workers.

Employers know better, and yet they have the goddamned balls to ask for more free labor:

Are you kidding me? pic.twitter.com/h9OZxuzbVs

— Public Citizen (@Public_Citizen) May 12, 2021

Mind you, no more than three free days a month or the company might get in trouble — oh, and do be sure to dress like you’re being paid for it.

Workers would rather bust hump on their own, eat deterioration of their own vehicle and amortize it rather than take a minimum wage hourly job:

Drivers here are saying they average out to about $15-20/hr doing rideshare, after accounting for gas & car depreciation.

And if somebody’s refusing to wear a mask or getting aggressive you can kick them out of their car, which you can’t do to a boss.

— Dr Sarah Taber (@SarahTaber_bww) May 13, 2021

When they work as a contractor on a gig job, it pays better and their boss isn’t a bullying asshole who puts their safety at risk.

But of course the GOP has a problem with helping these small business persons with their tiny entrepreneurial aspirations who are trying to earn a living wage while not risking their physical and mental health:

To be clear, these GOP-led states aren’t just eliminating the $300 per week enhanced aid for unemployed workers – they are ending CARES Act programs that support gig workers, self-employed, and the long-term jobless.

Those workers will be completely cut off. $0 income. https://t.co/t2ItRUkBet

— Rep. Don Beyer (@RepDonBeyer) May 12, 2021

Meanwhile, journalists aren’t asking key questions, rolling over and playing dead for the likes of Marco Rubio when he trots out the fascist conventional wisdom that workers are lazy. They aren’t asking businesses if they’re re-examining their business model the way workers have had to re-examine their priorities.

THIS. pic.twitter.com/rk26Ysems9

— Ohh Hi There (@StillFrettin) May 12, 2021

The least we and journalists should be doing: asking business-owned chumps like Rubio more pointed questions about employers, especially when they’re buying support yachts for their mega-yachts:

Why is it “if you can’t pay rent, buy fewer lattes” and not “if you can’t pay your employees a living wage, buy fewer yachts”?

— mohamad safa (@mhdksafa) May 14, 2021

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All Republican Gang of Eight Members Condone Large-Scale Theft of Classified Information, Press Yawns

No One Wants to Work [For You] Anymore: The End of Oligopsony

Interesting links

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