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The Federalism that Mark Meadows Wants the 11th Circuit to Reverse

September 10, 2023/123 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Mark Meadows immediately appealed the decision Judge Steve Jones issued Friday not to remove the Georgia prosecution of the former White House Chief of Staff to federal court, so the decision will not be final until at least one right wing court has had a chance to reverse it.

The most important decision from the 11th Circuit and SCOTUS in the meantime will be whether to stay the proceedings in Georgia as this appeal goes forward, which is not supposed to happen under removal, but the appeals courts may view the appeal as something different procedurally.

For now, then, I want to map out how Jones unwound the difficult issues of federalism and separation of powers to get to his decision, because they lie at the core of both January 6-related prosecutions of Trump. This is a decision that weighs the supremacy of federalism over the state, the reservation to states to conduct elections, and the separation of powers between the executive and the legislative. Meadows’ appeal is likely to be the second or third time SCOTUS gets to weigh in on Trump’s conduct on January 6 (the first being his attempt to use Executive Privilege to prevent the Archives from sharing documents with the January 6 Committee, another being appeals of the civil lawsuits out of DC), so the logic Jones applied here may influence later criminal proceedings against Trump and others.

After laying out that 28 U.S.C. § 1442(a)(1) is one exception to the precedent that the federal government does not intervene in state prosecutions, Judge Jones noted that the standard for removal is low. Meadows doesn’t need to prove his case; he needs to prove that the prosecution is “closely connected with” his role as a federal officer.

The Supreme Court has cautioned that “an airtight case on the merits in order to show the required causal connection” is not required and that courts are to “credit” the movant’s “theory of the case” for the elements of the jurisdictional inquiry.5 Jefferson Cnty. v. Acker, 527 U.S. 423, 432 (1999). “The point is only that the officer should have to identify as the gravamen of the suit an act that was, if not required by, at least closely connected with, the performance of his official duties.” Id. at 447 (Scalia, J., dissenting).

Having acknowledged the standard is low, Jones nevertheless found that Meadows had not met that bar, because the actions he is accused of taking as part of the RICO conspiracy served the ultimate goal of affecting state election activities and procedures on behalf of the Trump campaign.

The Court concludes that Meadows has not met even the “quite low” threshold for removal. Again, what the Court must decide for purposes of federal officer removal is whether the actions Meadows took as a participant in the alleged enterprise (the charged conduct) were related to his federal role as White House Chief of Staff. The evidence adduced at the hearing establishes that the actions at the heart of the State’s charges against Meadows were taken on behalf of the Trump campaign with an ultimate goal of affecting state election activities and procedures. Meadows himself testified that working for the Trump campaign would be outside the scope of a White House Chief of Staff. Hearing Tr. 113:2–6.

Based on this formula — that Meadows’ activities were taken on behalf of the Trump campaign with the goal of affecting state election activities — Jones distinguished Meadows’ activities from his job as Chief of Staff in two ways.

First, while Meadows made expansive claims about his role as Chief of Staff that he attempted to use to claim he had to set up the meetings Trump had with Georgia (and other state) officials, Jones noted that both sides agreed the Hatch Act prohibited White House employees, including Meadows, from using his official position to engage in election activity.

Meadows also testified that as White House Chief of Staff he was bound by the Hatch Act11 and he could not engage in political activity. Hearing Tr. 39:7– 25; 135:21–136:5. As discussed more fully below, the Hatch Act prohibits “an employee” from “us[ing] his official authority or influence for the purpose of affecting the result of an election.” 5 U.S.C. § 2732(a)(1). This includes, “[u]sing his or her official title while participating in political activity.” 5 C.F.R. § 734.302(b)(2). And political activity is defined as, “activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.” Id. § 734.101.

The Court finds that the color of the Office of the White House Chief of Staff did not include working with or working for the Trump campaign, except for simply coordinating the President’s schedule, traveling with the President to his campaign events, and redirecting communications to the campaign. Thus, consistent with his testimony and the federal statutes and regulations, engaging in political activities is exceeds the outer limits of the Office of the White House Chief of Staff.

[snip]

When questioned about the scope of his authority, Meadows was unable to explain the limits of his authority, other than his inability to stump for the President or work onbehalf of the campaign. Hearing Tr. 111:12–113:6. The Court finds that Meadows did not adequately convey the outer limits of his authority, and thus, the Court gives that testimony less weight.12

12 In this case, Meadows was the main witness presenting testimony for his case. Thus, the Court must determine the appropriate amount of weight to assign to his testimony when evaluating it, the same as it does any other witness in an evidentiary hearing. However, given the nature of the motion, and the pending criminal proceedings the Court makes these decisions with great caution. The determinations here do not go to Meadows’s propensity to be truthful as a general matter. However, the Court cannot undertake the task assigned by 28 U.S.C. § 1455(b)(5) without assigning the appropriate weight to the testimony.

[snip]

The Hatch Act prohibits executive branch employees from “us[ing] [their] official authority or influence for the purpose of interfering with or affecting the result of an election[.]” 5 U.S.C. § 7323(a)(1). The federal regulation governing political activities of federal employees prohibits the same. 5 C.F.R. § 734.302(a). The regulation, moreover, broadly defines “political activity” to be “activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.” Id. § 734.101. The types of behaviors that Meadows is alleged to be involved in included post-election activities and election outcomes in various States pertaining to a particular candidate for office. If these potentially political activities indeed come against the Hatch Act, its regulations limit such efforts. These prohibitions on executive branch employees (including the White House Chief of Staff) reinforce the Court’s conclusion that Meadows has not shown how his actions relate to the scope of his federal executive branch office. Federal officer removal is thereby inapposite. [my emphasis]

Meadows had tried to argue that the overt acts accuse him of nothing more than those permitted activities, organizing Trump’s schedule and redirecting communications to the campaign. But Jones only bought that argument in the context of one of the overt acts attributed to Meadows (getting a phone number from Scott Perry). For the rest, Jones ruled that Meadows was engaged in activities for the campaign.

The Hatch Act doesn’t apply to the President and Vice President. So if Jones’ ruling relied exclusively on the application of the Hatch Act, it would have no relevance for Trump.

But Jones also relied on the Elections Clause of the Constitution that reserves the conduct of elections to the states.

The Constitution does not provide any basis for executive branch involvement with State election and post-election procedures. The Elections Clause expressly reserves the “Times, Places, and Manner” of elections to state legislatures. U.S. Const. art. I, § 4, cl. 1; see also Shelby Cnty. v. Holder 570 U.S. 529, 543 (2013) (“[T]he Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.” (quoting Gregory v. Ashcroft, 501 U.S. 452, 461–62 (1991)); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 833–34 (1995) (“[T]he Framers understood the Elections Clause as a grant of authority [to state legislatures] to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.”). States have been tasked under the Elections Clause to “provide a complete code” for elections which ought to include “regulations ‘relat[ing] to . . . prevention of fraud and corrupt practices [and] counting of votes . . . .’” Moore v. Harper, 600 U.S. —-, 143 S. Ct. 2065, 2085 (2023) (quoting Smiley v. Holm, 285 U.S. 355, 366 (1932)). This is not a power incident to a State’s police powers but “derives from an express grant in the Constitution.” Fish v. Kobach, 840 F.3d 710, 727 (10th Cir. 2016).

[snip]

Thus, the executive branch cannot claim power to involve itself in States’ election procedures when the Constitution clearly grants the States the power to manage elections under the Elections Clause. [my emphasis]

Note that Jones relied on both Shelby County (rejecting part of the Voting Rights Act) and Moore v. Harper (rejecting the Independent State Legislature theory) in this passage, both opinions authored by Chief Justice Roberts and the more recent one joined by Justices Kavanaugh and Barrett. There’s nothing controversial or surprising about this. But in both cases, there’s fierce Republican support at SCOTUS for the states’ authority in conducting their own elections — on paper, at least, even more fiercely among SCOTUS’ more radical right wing members.

Meadows’ appeal will have to argue positions directly the reverse of those that the Trump campaign floated during the campaign.

Meadows had tried to invoke two other bases for the White House Chief of Staff to butt into state elections: the Take Care Clause and the executive’s ability to offer advice to Congress.

13 The only potential constitutional authority, the Take Care Clause, does not enable the type of election oversight to which the State’s Indictment pertains. See U.S. Const. art. II, § 3 (“[The President] shall take Care that the Laws be faithfully executed[.]”). Yet, executive authority under the Take Care Clause “does not extend to government officials over whom [the Executive] has no power or control.” Thompson v. Trump, 590 F. Supp. 3d 46, 78 (D.D.C. 2022). The Court accordingly rejects Meadows’s suggestion that the Take Care Clause provides a basis for finding executive authority over state election procedures. Doc. No. [45], 9–10.

The Court is also unpersuaded by Meadows’s contention that his acts involving state election procedures are within executive power to advise Congress. Doc. No. [45], 10. It would be inconsistent with federalism and the separation of powers, to find that activities which are delegated to the states are also within the scope of executive power because the executive branch may advise Congress. Cf. Fish, 840 F.3d at 725–26 (“The [Elections] Clause is a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only so far as Congress declines to preempt state legislative choices.” (quoting Foster, 522 U.S. at 69). The Court will not find that the executive branch has some advisory authority in this space in light of the express constitutional grant over elections to the States.

But here, too, Jones noted that the executive simply had no role here.

Here’s how this analysis works in practice, as Jones applied it to Meadows’ visit to Cobb County to monitor the vote count.

Similarly, Overt Act 92 alleges that Meadows traveled to Cobb County, Georgia where he “attempted to observe the signature match audit being performed there by law enforcement officers from the Georgia Bureau of Investigations and the Office of the Georgia Secretary of State.” Doc. No. [1-1], 44. Meadows testified that his actions with respect to this allegation were:

in line with [his duties], because what I did was go to the Cobb County convention center to look at the process that they were going through. And in doing so was trying to, again, check that box to say, all right, everything is being done right here, and so if there’s allegations of fraud, we need to move on to something else.

Hearing Tr. 152:4–17. The Court factually finds that Meadows overseeing State election recount processes related to President Trump’s reelection campaign. Meadows failed to provide sufficient evidence that these actions related to any legitimate purpose of the executive branch. Accordingly, the Court finds Meadows has not met his burden in establishing that Overt Act 92 is related to scope of the Office of White House Chief of Staff.

The executive has no role in such vote counts. And so the only purpose for Meadows to observe the count was on behalf of Trump’s campaign.

As Trump’s federal prosecution proceeds, there will be (and has been, in appellate consideration of the application of the 18 USC 1512(c)(2) to the vote certification) similar analysis about the Electoral College Act that reserves certain roles to Congress, not the executive. In his post-election activities, Trump (and Meadows) were simply intervening in one of the few areas where, thus far, judges have ruled that the executive has no role.

The analysis will be different for Jeffrey Clark because DOJ — but not its civil division — does have a role in investigating any federal election crime. Georgia has focused their response to Clark’s bid to remove his prosecution by presenting the testimony of the people who were in charge at DOJ, who slapped down Clark’s intervention.

But as to Meadows, Judge Jones has found that the things he did to intervene in Georgia’s elections on Trump’s behalf had no valid federal purpose.

Update: Meadows has asked Judge Jones for a stay, not (yet) the 11th Circuit.

The Comings and Goings of Insurrection

August 29, 2023/260 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

I suppose I should have warned you all I’d be on a bit of a holiday for two weeks, and so would have little detailed coverage of Trump’s various travails. This will just be a quick update.

The two big developments from yesterday were the status hearing in Trump’s case — where Judge Tanya Chutkan set a May 4, 2024 trial date — and the Mark Meadows removal hearing in Georgia, where he took the stand for a number of hours.

In the former, Trump’s attorney John Lauro engaged in a good deal of theatrics, wailing about how a man’s life is at stake and laying the groundwork for an appeal on assistance of counsel grounds (which would be after the trial). In the wake of that, Trump claimed he was going to appeal the trial date, which he can’t do.

It seems. to be lost on people that these arguments not only serve the normal legal purposes, in which case some of Lauro’s theatrics were over the top. But a lot of them are for the benefit of Trump’s cult. They need to believe both that he’s in control and that his return to the presidency is inevitable.

As noted, in Georgia Meadows took the stand for hours. Keep an eye out for Anna Bowers’ report over on Lawfare, which she promises will be “excruciatingly detailed.” In her Twitter account, however, it sounded like prosecutors made a bunch of good legal points about the scope of electoral duties. Judge Steve Jones sounds like he focused on the exclusion of the President from electoral duties reserved to the states. But he apparently also noted that the bar for removal is quite low.

There are two issues at stake for Meadows — first removal, but then a bid to dismiss the case. The former is more likely to happen than the latter.

Finally, unless anyone objects, on September 8, Judge McBurney will release the report from the Special Grand Jury in Georgia.

Mark Meadows’ Middling Path: There Are Several Paths to Prosecute Donald Trump

August 21, 2023/93 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Two things happened over the weekend that may provide more clarity about Mark Meadows’ fate in the twin Trump investigations in which he’s implicated.

Second in terms of order but I’ll deal with it first, ABC had a big scoop about key parts of his testimony in the stolen documents case. There are four key disclosures about Meadows’ testimony.

Meadows knew of no standing order to declassify documents
He was not involved in packing boxes, didn’t see Trump doing so, and wasn’t aware Trump had taken classified documents

Meadows offered to sort through boxes of documents after NARA inquired about them in May 2021, but Trump declined the offer
Meadows ultimately backed his ghostwriter’s account that the Iran document that Trump described to Meadows’ ghost-writer was on the couch in front of him at the time of the exchange

The circumstances around Meadows’ testimony about his ghost-writer are the most telling. As ABC describes it, his ghost-writer sent him a draft that conflicted with the final copy of his book. That draft described that when Trump boasted about an Iran document he could use to prove Mark Milley wrong, it was in front of him on the couch. After receiving the draft, Meadows edited out the account that would provide proof Trump was sharing a classified document at Bedminster.

But a draft version of the passage initially sent to Meadows by his ghostwriter, which was reviewed by ABC News, more directly referenced the document allegedly in Trump’s possession during the interview.

“On the couch in front of the President’s desk, there’s a four-page report typed up by Mark Milley himself,” the draft reads. “It shows the general’s own plan to attack Iran, something he urged President Trump to do more than once during his presidency. … When President Trump found this plan in his old files this morning, he pointed out that if he had been able to make this declassified, it would probably ‘win his case.'”

Investigators may have found this by obtaining a warrant for Meadows’ email and discovering it as a clearly non-privileged attachment, by subpoenaing Meadows’ ghost writer, or both. It would be unsurprising if Jack Smith obtained Meadows’ email from 2020 through the FBI search of Mar-a-Lago, particularly given reports that his account got a privilege review too, and attachments are often the most interesting things obtained from cloud warrants.

The discrepancy between the draft and the final — hinting that Meadows recognized the document to be particularly sensitive — may have driven investigative focus on the document, leading Smith to obtain several recordings of the conversation and ultimately testimony sufficient to charge Trump’s willful retention of it in the superseding indictment.

Just as significantly, for a read of Meadows’ posture towards the dual investigations into Trump: ABC describes that his testimony changed. At some unspecified original interview (by context it appears to have been before the MAL search), Meadows said that he edited that passage because he didn’t believe it. But, apparently in that first interview, he conceded that if Trump did have the document in Bedminster to share with his ghost-writer, it would be problematic.

Sources told ABC News that Meadows was questioned by Smith’s investigators about the changes made to the language in the draft, and Meadows claimed, according to the sources, that he personally edited it out because he didn’t believe at the time that Trump would have possessed a document like that at Bedminster.

Meadows also said that if it were true Trump did indeed have such a document, it would be “problematic” and “concerning,” sources familiar with the exchange said.

But then Meadows’ own testimony changed — possibly at the April grand jury appearance mentioned by ABC.

Meadows said his perspective changed on whether his ghostwriter’s recollection could have been accurate, given the later revelations about the classified materials recovered from Mar-a-Lago in the months since his book was published, the sources said.

Meadows’ explanation for his changed testimony is not all that credible. It sounds like, as he came to understand how solid the case against Trump was, he became less interested in exposing himself to legal troubles by protecting him.

But for Meadows’ purposes, it likely doesn’t have to be. Meadows was not a direct witness to this incident. After prosecutors spent much of the spring fleshing out what happened here, it seems, Meadows conceded the points that were necessary. And the concession may well have been key to the inclusion of the document in the indictment(s): because it meant a witness who might otherwise have provided exculpatory testimony was locked into testimony that did not dispute the testimony of the direct witnesses against Trump.

Importantly, this is not the testimony of a cooperating witness. It is the testimony of someone prosecutors have coaxed to tell the truth by collecting so much evidence there’s no longer room to do otherwise. And it is testimony, if Meadows provided it at that April grand jury appearance, obtained four months after Fani Willis lost her grand jury as an investigative tool.

Which brings us to Meadows’ motion to dismiss the Georgia charges against him, submitted in federal court in NDGA.

The day after the GA indictment, Meadows’ attorneys filed to have it removed from GA to federal court because he was a senior government official during the events in question; this was expected from him, and still is expected from Trump and Jeffrey Clark. The next day, Judge Steve Jones ruled that he had to hear the challenge — effectively ruling that there was nothing procedurally wrong with Meadows’ demand.

Then Friday, Meadows’ team submitted their motion to dismiss the Georgia charges against him. Again, this was expected. But I also expected the brief to be far stronger than it is. It is an example where a team of superb lawyers argue the law — 19 pages of citations before they finally get around to addressing the alleged facts, and several more pages of law but not facts to follow.

Meadows’ motion makes three arguments about how the law applies to the alleged facts:

Meadows’ alleged actions in the GA indictment fall within his duties as Chief of Staff
But for his position as Chief of Staff which required him to remain close to provide advice, he would not have done the actions alleged
His actions were legal at the federal level

The first two points are closely related and appear in two successive paragraphs. It is true that Meadows’ job was to arrange whatever calls the President wanted to make. And most — but not all — of Meadows’ alleged Georgia acts fit into that kind of thing.

The question is not whether Mr. Meadows was specifically authorized or required to do each act, but whether they fall within “the general scope of [his] duties.” Baucom, 677 F.2d at 1350. They surely do. As noted, those duties included information-gathering and providing close and confidential advice to the President. Moreover, as explained below, the State’s characterization of one of these acts as violating state law is wholly irrelevant. See Part II.B, infra. Stripped of the State’s gloss, the underlying facts entail duties with the core functions of a Chief of Staff to the President of the United States: arranging or attending Oval Office meetings, contacting state officials on the President’s behalf, visiting a state government building, and setting up a phone call for the President with a state official. Those activities have a plain connection to his official duties and to the federal policy reflected in establishing the White House Office. [my emphasis]

From there, Meadows argues that if he weren’t Chief of Staff to epic scofflaw Donald Trump, he wouldn’t have been doing these unlawful things for Donald Trump, and if he had simply left the room to object, then he wouldn’t be in the room to provide close and confidential advice.

The “nexus” is readily apparent. Only by virtue of his Chief of Staff role was Mr. Meadows involved in the conduct charged. Put another way, his federal position was a but-for cause of his alleged involvement. Moreover, if Mr. Meadows had absented himself from Oval Office meetings or refused to arrange meetings or calls between the President and governmental leaders, that would have affected his ability to provide the close and confidential advice that a Chief of Staff is supposed to provide. It is inescapable that the charged conduct arose from his duties and was material to the carrying out of his duties, providing more than merely “some nexus.”

Thus far (and ignoring that not all of the charged conduct in Georgia qualifies), this argument actually makes perfect sense for the removal and dismissal argument. Several of the actions charged against Meadows in Georgia really are about arranging meetings and phone calls for the President.

And the argument that Meadows had to stick around to provide advice is stronger than you might think.

It’s where Meadows’ team argues that his actions were legal at the federal level where, in my opinion, the argument starts to collapse — but also where this filing hints at more about Meadows’ strategy for avoiding charges himself.

Meadows team recites the alleged Georgia acts as Judge Jones has characterized them on page 19 and then directly quotes the references to Meadows in the federal indictment on page 26. It helps to read them a table together:

There’s an arc here. The early acts in both indictments might be deemed legal information gathering. After that, in early December, Meadows takes two actions, one alleged in Georgia and the other federally, both of which put him clearly in the role of a conspirator, neither of which explicitly involves Trump as charged in the Georgia indictment. Meadows:

Asks Johnny McEntee for a memo on how to obstruct the vote certification
Orders the campaign to ensure someone is coordinating the fake electors

The events on December 22 and 23, across the two indictments, are telling. Meadows flies to Georgia and, per the Georgia indictment, attempts to but fails to access restricted areas. Then he flies back to DC and, per the federal indictment, tells Trump everything is being done diligently. Then Meadows arranges and participates in another call. Both in a tweet on December 22 and a call on December 23, Trump pressures Georgia officials again. For DOJ’s purposes, the Tweet is going to be more important, whereas for Georgia’s purposes, the call is more important. But with regards his argument for removal and dismissal, Meadows would argue that he used his close access to advise Trump that Georgia was proceeding diligently.

On December 27, Meadows calls and offers to use campaign funds to ensure the signature validation is done by January 6. This was not Meadows arranging a call so Trump could make the offer himself, it was Meadows doing it himself, likely on behalf of Trump, doing something for the campaign, not the country.

On January 2, Meadows participates in the Raffensperger call, first setting it up then intervening to try to find agreement, but then ultimately pressuring state officials not so much to just give Trump the votes he needs, which was Trump’s ask, but to turn over state data.

Meadows: Mr. President. This is Mark. It sounds like we’ve got two different sides agreeing that we can look at these areas ands I assume that we can do that within the next 24 to 48 hours to go ahead and get that reconciled so that we can look at the two claims and making sure that we get the access to the secretary of state’s data to either validate or invalidate the claims that have been made. Is that correct?

Germany: No, that’s not what I said. I’m happy to have our lawyers sit down with Kurt and the lawyers on that side and explain to my him, here’s, based on what we’ve looked at so far, here’s how we know this is wrong, this is wrong, this is wrong, this is wrong, this is wrong.

Meadows: So what you’re saying, Ryan, let me let me make sure … so what you’re saying is you really don’t want to give access to the data. You just want to make another case on why the lawsuit is wrong?

Meadows was pressuring a Georgia official, sure, but to do something other than what Trump was pressuring Raffensperger to do. His single lie (he was charged for lying on the call separately from the RICO charge), one Willis might prove by pointing to the overt act from the federal indictment on December 3, when Jason Miller told Meadows that the number of dead voters was not 10,000, but twelve, is his promise that Georgia’s investigation has not found all the dead voters.

I can tell you say they were only two dead people who would vote. I can promise you there were more than that. And that may be what your investigation shows, but I can promise you there were more than that.

But even there, two is not twelve. Meadows will be able to challenge the claim that he lied, as opposed to facilitated, as Chief of Staff, Trump’s lies.

Finally, in an overt act not included in the Georgia indictment, Meadows is among the people on January 6 who (the federal indictment alleges) attempted to convince Trump to call off the mob.

There’s a lot that’s missing here — most notably Meadows’ coordination with Congress and any efforts to coordinate with Mike Flynn and Roger Stone’s efforts more closely tied to the insurrection and abandoned efforts to deploy the National Guard to protect Trump’s mob as it walked to congress. Unless those actions get added to charges quickly, Meadows will be able to argue, in Georgia, that his actions complied with federal law without having to address them. If and when they do get charged in DC, I’m sure Meadows’ attorneys hope, his criminal exposure in Georgia will be resolved.

Of what’s included here, those early December actions — the instruction to Johnny McEntee to find some way to obstruct the January 6 vote certification and the order that someone coordinate fake electors — are most damning. That, plus the offer to use campaign funds to accelerate the signature match, all involve doing campaign work in his role as Chief of Staff. For the federal actions, Jack Smith might just slap Meadows with a Hatch Act charge and end the removal question — but that might not help him, Jack Smith, make his case, because several parts of his indictment rely on exchanges Meadows had privately with Trump, and Meadows is a better witness if he hasn’t been charged with a crime.

Aside from those, Meadows might argue — indeed, his lawyers may well have argued to Jack Smith to avoid being named as a co-conspirator — that his efforts consistently entailed collecting data which he used to try to persuade the then-President, using his access as a close advisor, to adopt other methods to pursue his electoral challenges. Meadows’ lawyers may well have argued that several things marked his affirmative effort to leave the federally-charged conspiracies. In this removal proceeding, I expect Meadows will argue that his actions on the Raffensperger call were an attempt, like several others, to collect more data to use his close access as an advisor to better persuade the then-President to drop the means by which he was challenging the vote outcome.

Meadows’ motion to dismiss is weakest because he doesn’t explain there was any federal policy interest in these actions, much less an executive branch one. The early December activities — the order to Johnny McEntee to find a way to delay the vote certification that both the Constitution and the Electoral College Act reserve to Congress and the order to coordinate fake electors overstep executive authority. How Georgia tallies their vote, which Meadows might otherwise claim were efforts to advise Trump, is reserved to Georgia. There’s no federal policy interest here because Trump’s efforts stomped on the prerogatives of both Congress and the state of Georgia.

The 19 pages of Meadows’ motion to dismiss that discuss the law in isolation of the facts mentions the centrality of federal policy 9 times. The part that discusses the facts uses the word “policy” twice (once, which I’ve bolded, in the Secretary of State passage cited above), but makes no effort whatsoever to describe how these actions — particularly the intervention into matters reserved for Congress and the states — pertained to federal policy. These very good lawyers simply never get around to applying their law about intervention, which pivots on federal policy, to the facts. Instead, their argument relies much more heavily on their claim that, particularly since Meadows hasn’t been charged, Willis won’t be able to prove that Meadows’ actions violated federal law. That argument will only matter if they succeed in getting the case removed to federal court.

Between the overt political nature of three of his actions and the lack of any policy argument, Fani Willis should be able to mount an aggressive challenge to this effort, though the effort is not entirely frivolous and Meadows has very good lawyers even if those lawyers don’t have great facts.

But there’s a bunch more going on here.

First, as I noted in this post, these prosecutors are using different strategies to get Trump to trial. Willis, who can’t be fired by Trump if he wins in 2024, charged broadly and presumably hopes to use the RICO exposure to flip some of the key conspirators as witnesses against others. Smith, who may have a much shorter clock (but who also has both indicted crimes, but also his financial investigation, to play off each other), has chosen to charge Trump for January 6 alone, with six people identified as unindicted co-conspirators. Smith seems to believe he can introduce all the evidence he needs to convict Trump relying on the hearsay exception just for those six unindicted co-conspirators. He hasn’t made Meadows a co-conspirator, and so is confident he can get Meadows to take the stand and testify to the facts alleged in the indictment.

Until now, the two investigations have not coordinated, though something Willis said in her press conference suggested that perhaps they’ve started talking now, possibly to exchange evidence as permitted under grand jury rules.

Reporter: Have you had any contact with the special counsel about the overlap between this indictment and–

Willis: I’m not going to discuss our investigation at this time.

Plus, they’ve been working on different tracks. Willis had to take overt steps earlier, mostly last summer, and lost her power to compel testimony in December (though she has immunized all but three of the fake electors in recent months). While DOJ was provably doing covert things during Willis’ overt investigation, most of DOJ’s overt acts took place since Willis lost investigative subpoena power.

Willis, who has close ties to January 6 Committee and certain TV lawyers, may well believe their propaganda about how little DOJ was doing, and likewise may share their (provably incorrect, given what we’ve seen in the Steve Bannon and Peter Navarro contempt prosecutions) view that DOJ could have and should have prosecuted Meadows for contempt for blowing off the J6C. She may believe she needs to, and that it is key to her case, to flip Meadows.

That’s where the ABC report that Meadows changed his testimony about the Iran document is instructive. When he was interviewed in what may have been an interview before the August search of Mar-a-Lago, Meadows said he believed his ghost-writer was incorrect when they claimed Trump had the Iran document in front of him. When Meadows testified before Willis’ grand jury, he offered next to nothing, invoking the Fifth Amendment repeatedly.

Using the Fifth Amendment or citing various legal privileges was a strategy that the grand jury saw from several of the most prominent witnesses, including Trump White House chief of staff Mark Meadows, according to [investigative grand jury foreperson Emily] Kohrs.

“Mark Meadows did not share very much,” she said. “I asked if he had Twitter, and he pled the Fifth.”

Now, at least in the stolen documents probe, Meadows has reversed his prior testimony, explaining that given how damning the facts against Trump are in that case, he thinks his ghost-writer is probably correct about the Iran document being there on the couch.

Meadows also provided compelled, executive privilege-waived testimony since, grand jury testimony obtained before both federal indictments against Trump, grand jury testimony that Smith’s prosecutors used to lock Meadows into a certain story.

These dynamics may explain the curious sequence as portrayed across the two indictments from December 22 and 23, 2020.

On or about the 22nd day of December 2020, MARK RANDALL MEADOWS traveled to the Cobb County Civic Center in Cobb County, Georgia, and attempted to observe the signature match audit being performed there by law enforcement officers from the Georgia Bureau of Investigation and the Office of the Georgia Secretary of State, despite the fact that the audit was not open to the public. While present at the center, MARK RANDALL MEADOWS spoke to Georgia Deputy Secretary of State Jordan Fuchs, Office of the Georgia Secretary of State Chief Investigator Frances Watson, Georgia Bureau of Investigation Special Agent in Charge Bahan Rich, and others, who prevented MARK RANDALL MEADOWS from entering into the space where the audit was being conducted. This was an overt act in furtherance of the conspiracy.

On December 23, a day after the Defendant’s Chief of Staff personally observed the signature verification process at the Cobb County Civic Center and notified the Defendant that state election officials were “conducting themselves in an exemplary fashion” and would find fraud if it existed, the Defendant tweeted that the Georgia officials administering the signature verification process were trying to hide evidence of election fraud and were “[t]errible people!”

On or about the 23rd day of December 2020, DONALD JOHN TRUMP placed a telephone call to Office of the Georgia Secretary of State Chief Investigator Frances Watson that had been previously arranged by MARK RANDALL MEADOWS. During the phone call, DONALD JOHN TRUMP falsely stated that he had won the November 3, 2020, presidential election “by hundreds of thousands of votes” and stated to Watson that “when the right answer comes out you’ll be praised.” This was an overt act in furtherance of the conspiracy.

Given what Kohrs said about Meadows’ grand jury appearance, we can be sure that all of the claims in Willis’ indictment come from Georgia witnesses. A bunch of people will testify that Meadows tried to force his way into a restricted area — itself suspicious as hell — and Frances Watson will testify that after Meadows reported back, he arranged a call on which Trump harangued her in such a way that is entirely inconsistent with having been told that Meadows told Trump the Georgia investigators were “conducting themselves in an exemplary fashion.”

Meanwhile, that “exemplary fashion” claim could only have come from Meadows’ grand jury testimony, almost certainly in April. Sandwiched between the two overt acts in the Georgia indictment, it is not all that credible. But we can be sure it is locked in as grand jury testimony.

The degree to which subsequent events, including the Georgia indictment, may discredit Meadows’ federal grand jury testimony likely explains why we’ve gotten the first ever leak as to the substance of Meadows’ testimony, which often serves as a way to telegraph testimony to other witnesses. Several of the things ABC describes him as testifying to — that he had no idea Trump took classified documents and that he offered to sort through everything but Trump refused — seem unlikely. But so long as whoever else could refute that (including Walt Nauta, who helped pack up the boxes) tells the same story, he might get away with improbable testimony.

With January 6, though, it’s far less likely he’ll get away with improbable claims before a grand jury, especially if he fails to get the prosecution removed to federal court.

That explains his rush. It explains why Meadows wants to prevent Trump’s and Clark’s motions for removal from causing any delay in his own, which is currently scheduled to be heard on August 28.

Because if and when any other federal crimes come out, his entire argument starts to collapse, particularly given that he failed to argue there was some policy interest in badgering Georgia officials.

Meadows appears, thus far, to have succeeded with a very tricky approach. He has great lawyers and it may well succeed going forward. But with all the indictments flying, that effort gets far more difficult, particularly given the way the overt acts in the Georgia indictment discredit Meadows’ federal grand jury testimony.

Update: I continue to write “Mar-a-Lago” when I mean Bedminster. Fixed an instance of that here.

Trump’s Federated Conspiracies and Racketeering: How Georgia and the Federal Charges May Interact

August 15, 2023/203 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

The Georgia indictment and Trump’s federal indictment tell the same story. But those stories have some key differences, that will create an interesting prisoner’s dilemma for those involved. The different exposure of Sidney Powell in both and the different treatment of Ruby Freeman show how they’re different.

Sidney Powell’s lawsuits and alleged hacking

The last overt act described in the federal indictment against Donald Trump describes how, at 3:41AM, Mike Pence certified the election for Joe Biden.

123. At 3:41 a.m. on January 7, as President of the Senate, the Vice President announced the certified results of the 2020 presidential election in favor of Biden.

But two of the charged conspiracies — the 18 USC 371 conspiracy to defraud the US and the 18 USC 241 conspiracy against rights — go through January 20. Since they are charged as conspiracies, anything Trump’s co-conspirators said and did after January 6 can also be used to prove the case against Trump.

That’s particularly notable for Trump’s Crazy Kraken Conspirator, Sidney Powell. As noted, the only overt act of hers described in Trump’s federal indictment has to do with her lawsuits targeting Dominion.

Those lawsuits don’t figure in the Georgia indictment at all — not even the November 25 one against Georgia explicitly described in the federal indictment. Instead, Powell’s primary criminal exposure in the Georgia indictment has to do with her conspiracy to get access to Dominion data from Coffee County, a conspiracy that — the Georgia indictment alleges — started on December 1, continued through their access of the data on January 7, after which the data continued to be exploited until at least April. Powell’s larger effort to exploit Dominion data, even that obtained in Michigan, plays a part in the RICO conspiracy.

In the federal case, Powell’s lawsuits serve both to justify backstopping of the electoral certification (meaning, you had to have lawsuits to justify having fake electors) and to prove that Trump was magnifying fraud claims from someone — Powell — everyone openly labeled as batshit. If and when Jack Smith ever adds charges — against Powell, Trump, or his PAC — for fraudulent fundraising, his embrace of claims sourced to Powell will be important to prove he knew he was lying in his fundraising.

In the Georgia case, by contrast, she is charged with outright conspiracy to illegally access computers and election fraud associated with accessing the Dominion data.

The overall arc of the conspiracies is the same; the criminal exposure is radically different.

Death threats and interstate entrapment efforts

Paragraph 26 of the federal indictment describes how Rudy Giuliani lied in a Georgia hearing, including but not limited to about Ruby Freeman and Shaye Moss, which resulted in death threats.

26. On December 10, four days before Biden’s validly ascertained electors were scheduled to cast votes and send them to Congress, Co-Conspirator 1 appeared at a hearing before the Georgia House of Representatives’ Government Affairs Committee. Co-Conspirator 1 played the State Farm Arena video again, and falsely claimed that it showed “voter fraud right in front of people’s eyes” and was “the tip of the iceberg.” Then, he cited two election workers by name, baselessly accused them of “quite obviously surreptitiously passing around USB ports as if they are vials of heroin or cocaine,” and suggested that they were criminals whose “places of work, their homes, should have been searched for evidence of ballots, for evidence of USB ports, for evidence of voter fraud.” Thereafter, the two election workers received numerous death threats.

Prosecutors are well aware of the import of Trump’s bullying — they made it part of their bid for a protective order. But, probably in an effort to stave off any real claim about charging First Amendment protected speech, such bullying is not charged, not even Trump’s targeting of Mike Pence.

The Georgia indictment, as Rick Hasen also notes, focuses much more on crimes targeting Freeman and Moss.

Rudy is charged for the lies he told on December 10 in Count 7. He and Ray Stallings are charged with soliciting Georgia Representatives to violate their oaths in Count 6.

But in addition to that, Lutheran minister Steve Lee is charged with two counts for trying to trick Freeman, once on December 14 and again on December 15, into confessing to voter fraud that didn’t happen. And he is charged along with Kanye’s publicist, Trevian Kutti, and Black Votes for Trump official Harrison Floyd with another attempt to get her to confess to voter fraud on January 4 and an attempt to get her to lie to the state.

These are alleged crimes that arise from Freeman’s status as a Fulton County election worker and as such are properly the concern of Fani Willis, not Jack Smith.

All of which is to say that even though both the RICO charge and Trump’s conspiracies map the same conduct, they tie to different crimes, with different kinds of exposure for different people.

Prisoner’s Dilemma: Already Charged Co-Conspirators versus Not-Yet Charged Co-Conspirators

One way the Georgia and federal indictments will interact is in the relative pressure between already being charged, in a state with strict pardon rules, and being not-yet charged, in a venue where Trump has pardoned his way out of criminal trouble in the past.

Five people are named as co-conspirators in both: Rudy (CC1 in the federal indictment), John Eastman (CC2), Powell (CC3), Jeffrey Clark (CC4) and Ken Chesebro (CC5).

Some of these people, like Sidney Powell, Trump might not consider pardoning in any case. Plus, Trump’s closest associates have spent the last week or so throwing her under the bus. But thus far at least, Powell’s personal legal risk is far greater in Georgia than federally.

Others, though, may think seriously about how much harder it would be to get a pardon for Georgia than a Federal indictment, where the next Republican President, possibly including Donald Trump, would be able to pardon them.

In other words, if people who are likely to be indicted by Jack Smith think the charges in Georgia are at all serious, they may flip sooner rather than later, which will likely lead them to cooperate in the DC case as well.

There’s a reason why prisoner’s dilemma is the basis for so much game theory. The way these two competing indictments intersect may rewrite that doctrine, something called Trump defendant dilemma.

Then consider the timing. Later this month — potentially on August 28, three days after all Willis defendants have to turn themselves in — Jack Smith’s prosecutors will fight for a January 2 trial date, which is ambitious. Last night, Fani Willis said she wanted to bring all 19 defendants to trial within 6 months, which would be late February or March.

Even if one or both of those dates would hold, it might require Alvin Bragg be willing to reschedule his own trial on the hush payment cover-up.

But if even just one of these trials goes forward on such an ambitious schedule, it would mean that this Trump defendant dilemma will be playing out even as GOP primary voters go to the polls.

The Bubble Three

One of the most interesting other ways the Georgia indictment and the federal one will interact is in how the three men on the bubble — Mike Roman, Boris Epshteyn, and Mark Meadows — respond. While we’re not yet sure whether Boris or Roman is CC6 in the federal indictment, there’s more support right now for it being Boris. Both men had their phones seized by DOJ in September. Both men sat (or said they’d sit) for proffers with Jack Smith’s team; neither has been (publicly) charged by DOJ yet.

Roman is charged in the Georgia indictment, both with the RICO charge and the Trump side of each of the fake elector charges. He’s the guy who was interacting directly with people in Georgia (and with CC4, Robert Sinners, who cooperated even with the January 6 Committee). If Roman actually did start cooperating with Jack Smith’s team, there’d be no down-side to doing so with Willis’ team, either.

Boris, by contrast, is almost certainly CC3; Act 109, describing a Chesebro email to Eastman and CC3 matches this passage from the January 6 Report.

By that point, Chesebro and Eastman were coordinating their arguments about the fake-elector votes and how they should be used. On January 1, 2021, Chesebro sent an email to Eastman and Epshteyn that recommended that Vice President Pence derail the joint session of Congress. In it, he raised the idea of Vice President Pence declaring “that thereare two competing slates of electoral votes” in several States, and taking the position that only he, or possibly Congress, could “resolve any disputes concerning them.”122

So Boris is not facing the charges that can’t be pardoned but may he facing the charges that can be.

Finally, there is Meadows. The slim exposure for Meadows in this indictment — he is charged in the RICO charge and the solicitation charge tied to the Raffensperger call — may explain why he was not listed as a co-conspirator, yet, for the Jack Smith indictment. The most damning acts attributed to him in the indictment were:

Sometime in December: Meeting with Johnny McEntee and asking him for a plan to throw out half the electoral votes in some states
December 22: Unsuccessfully attempting to enter the audit site in Georgia
December 27: Offering Trump campaign funds if it would help get signature verification done by January 6

Other than that, Meadows’ actions entail setting up phone calls on which Trump lied and solicited unlawful acts. Meadows has a superb lawyer and might try his luck with these charges.

If any of these men cooperated — if any already is (though I really think Meadows is not) — then it would provide both prosecutors a pivotal person in the conspiracies (and, in Boris’ case, the stolen documents conspiracy as well).

As I said above, the interaction of these two indictments, along with the uncertainty as Jack Smith continues to investigate, creates a fierce game of prisoner’s dilemma. And that’s before Smith charges any financial crimes tied to fraudulent fundraising.

Update: Meadows has moved to remove the charges against him to federal court — a move he may have more success doing than Trump.

Lordy, There Are Tapes [of Trump Acknowledging He Had Stolen Classified Documents]!

May 31, 2023/148 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

CNN has a blockbuster report about a recording, taken in conjunction with Mark Meadows’ memoir, capturing Trump claiming that he had a document planning an attack on Iran that he wished he could share, but could not, because it was classified.

The July 2021 meeting was held at Trump’s golf club in Bedminster, New Jersey, with two people working on the autobiography of Trump’s former chief of staff Mark Meadows as well as aides employed by the former president, including communications specialist Margo Martin. The attendees, sources said, did not have security clearances that would allow them access to classified information. Meadows didn’t attend the meeting, sources said.

Meadows’ autobiography includes an account of what appears to be the same meeting, during which Trump “recalls a four-page report typed up by (Trump’s former chairman of the Joint Chiefs of Staff) Mark Milley himself. It contained the general’s own plan to attack Iran, deploying massive numbers of troops, something he urged President Trump to do more than once during his presidency.”

The document Trump references was not produced by Milley, CNN was told.

[snip]

The meeting in which Trump discussed the Iran document with others happened shortly after The New Yorker published a story by Susan Glasser detailing how, in the final days of Trump’s presidency, Milley instructed the Joint Chiefs to ensure Trump issued no illegal orders and that he be informed if there was any concern. The story infuriated Trump.

Glasser reported that in the months following the election, Milley repeatedly argued against striking Iran and was concerned Trump “might set in motion a full-scale conflict that was not justified.” Milley and others talked Trump out of taking such a drastic action, according to the New Yorker story.

On the recording and in response to the story, Trump brings up the document, which he says came from Milley. Trump told those in the room that if he could show it to people, it would undermine what Milley was saying, the sources said. One source says Trump refers to the document as if it is in front of him.

Several sources say the recording captures the sound of paper rustling, as if Trump was waving the document around, though is not clear if it was the actual Iran document.

This is clearly an elaboration of what WaPo reported (as evidence of obstruction!) here, which I wrote about here. It is one of two documents — the other is a map — persistently described as something prosecutors asked about because Trump discussed sharing it with others.

The meeting was in Bedminster, not Mar-a-Lago.

One reason witnesses would be asked about it is to find out if Trump really had the document in front of him.

Let me explain how I think it relates (WaPo’s conceit notwithstanding) to potential Espionage Act or 18 USC 2071 charges.

First, it’s certainly possible this is one of the documents pertaining to Iran that WaPo has reported were among the ones obtained in the search in August 2022.

If it is, then it would be a document that Trump transported back and forth from Florida — something that would make it easier for DOJ to charge this in DC instead of SDFL.

If it’s something DOJ didn’t obtain in the search, but also didn’t obtain among the documents Trump returned in either January or June 2022, then … then we have problems. If this is among the documents that DOJ thinks Trump didn’t return, then we have problems, especially given Jack Smith’s focus on Trump’s LIV golf deal, because this is the kind of document that the Saudis would pay billions of dollars for.

Weeks ago, CNN also reported that Smith had asked NARA for 16 documents about declassification decisions. Few have considered the possibility those documents relate to specific documents that Trump still retained — though if there are any Russian investigations among those Trump retained at least until January 2022, then there surely would be. The same could be true here.

The document is, as CNN reports, evidence that Trump knew he had stolen classified documents.

Importantly, though, it’s also evidence about motive. No matter what reason Trump originally stole this document, this incident shows how Trump was exploiting it: To prove a critic wrong.

It’s precisely the same reason why Trump spent his last days attempting to declassify all the Russian investigation documents: revenge. It’s the most Trump motive ever.

But it also goes a long way to prove one of the more serious crimes listed in the warrant authorizing the search last August.

As I laid out in August, the elements of a straight up 18 USC 793 offense are:

Did the defendant, without authorization, have possession of, access to, or control over a document that was National Defense Information?
Did the document in question relate to the national defense?
Did the defendant have reason to believe the information could be used to the injury of the United States or to the advantage of any foreign nation?
Did the defendant retain the above material and fail to deliver it to the officer or employee of the United States entitled to receive it?
Did he keep this document willfully?

All of Trump’s behavior here fulfils these elements of offense. The document could be heard rustling on the recording, and several witnesses can describe whether he really had it. The document pertained to an attack on Iran, quintessentially a matter of national defense. Trump exhibited awareness that he couldn’t share it, because it was classified. And Trump had it, at least in part, to avenge what he perceived as a slight by Milley.

The one caveat — one made by Charlie Savage on Twitter — is the bolded bullet. DOJ had not yet subpoenaed this document. If he wasn’t caught in possession in of this document, it would serve only as evidence of 18 USC 2071 — the law prohibiting taking classified documents that disqualifies someone from holding federal office. Though if he ever did share it with people, it could exposure him to more serious levels of the Espionage Act.

All trials are about prosecutors telling stories.

This incident is a story so good that Trump tried to tell it himself, and in the process got recorded admitting he had stolen classified documents. And that’s why prosecutors asked a bunch of witnesses about it.

Update: Hugo Lowell’s version of this includes important details (the NYT also got several of these):

The meeting in question was in July 2021.
The recording came from Margo Martin, whose devices prosecutors obtained and imaged.
The actual document in question predates Mark Milley’s tenure as CJS.
Trump’s lawyers claim a document matching this description was among those returned to the Archives.
Prosecutors have shown the actual document to grand jury witnesses.

Christina Bobb’s Rent-an-Attorney-Client Cut-Out Computer

April 17, 2023/79 Comments/in 2020 Presidential Election, January 6 Insurrection, Leak Investigations /by emptywheel

Back in March, ABC reported that Fani Willis wanted to interview Christina Bobb in the probe of Trump’s attempt to overturn Georgia election results.

Smart commentators on that investigation, like Lawfare’s Anna Bower, suggested that Willis’ team likely had discovered, as they worked their way through the January 6 Committee transcripts released after Willis’ grand jury had expired, that whereas Bobb has always publicly claimed to have nothing to do with efforts to overturn Georgia’s election (she focused on Arizona, Nevada, and, in her J6C interview she belatedly admitted, Michigan), she revealed much later in the interview that she had first met Mark Meadows when she sat in on Trump’s call to Brad Raffensperger.

Bobb’s description of the call is pretty nutty.

Q Did you have any interactions with him in the post-election period?

A I — sorry. My phone is ringing. Okay. Yeah, one. One that I remember was the phone call, the Brad Raffensperger phone call. I was in Meadow’s office with Rudy, I think Katherine [Friess] was there. There may have been one other person there, but we listened in on the call from Meadows’ office.

Q Had you met him before that?

A No. I don’t think so.

Q Do you remember — go ahead. I’m sorry.

A No. I don’t think — I think that was the first time I met him.

Q Do you remember talking to him before that, even if not in person?

A No. I never did.

Q When you gathered for that call, what was his expectations for the call? What was the purpose of that call?

A I think to listen and, you know, be available as needed, but I think the whole point was just to listen.

Q Did he say anything about what the President was or was not going to request or seek by this call?

A No.

Q Do you remember if Mr. Meadows expressed any concerns about having this call?

A No. I don’t think he did, but I don’t remember, but I don’t remember him expressing any concerns.

Q Were you able to hear the call that the President had with Secretary Raffensperger?

A Yes.

Q What happened afterwards, when you were sitting there and, you know, the phone is hung up now?

A Nothing. We chit-chatted and left. It was — it was an unremarkable call.

I know the media has sensationalized it, but none of us thought anything of it. It was just a call and that was it.

Q I mean, the President of the United States asked the Secretary of State to find enough folks to ensure his victory in Georgia. I mean, he used those words, I’m just asking you to find votes.

A That is a gross misrepresentation of the phone call. It was a perfectly fine phone call. If you look at the transcript, he was not asking anything improper. He wasn’t asking him to do anything illegal.

There was a lot of indicators of fraud. That’s what he was talking about. He was not — nobody in the room thought there was anything wrong with the phone call. I think it was perfectly fine.

Nuttier still, after she defended it as a “perfectly fine” call, she explained that she and “at least two dozen” others sat in on it because, “we knew somebody was going to record it [and] release it.”

Q So I understand your perspective, but I did want to ask you that, what you just got to is that after the call, did anybody express any concern, reservation, have any thoughts about what had just happened in that call?

A No. But there were a lot of people on the call. Like there were probably at least two dozen, like there was, you know, half a dozen of us in the room, but then there were other — there were a lot of other people on the call.

We knew somebody was going to record it. We knew somebody was going to release it. We knew the media was going to twist it, which was exactly what happened, but nobody was concerned about it. Our concern was, was it a legitimate phone call and did the President say anything improper. And at the end of the call, we all thought no. Like it was totally fine. There was nothing wrong with it. So we didn’t think anything of it, and we chit-chatted and left.

As she describes it, she and twenty people were on the call as a prophylactic against the outcry when one of those twenty people or someone from Raffensperger’s team released the call to the press.

Bobb also admitted in the interview to witnessing Rudy Giuliani’s call to pressure Rusty Bower to overturn the Arizona vote, and described that she may have been Rudy’s representative on a different fake elector call.

Bobb did a whole lot of witnessing during this period for someone who had never left propaganda outlet OAN during the entire post-election period, when she was also claiming to play a role covered by attorney-client privilege.

That’s an interesting dynamic behind the reason I finally slogged through her transcript, to understand certain questions Jack Smith has been asking about the stolen documents investigation, particularly why Boris Epshteyn asked Bobb to be the gal who certified a declaration she hadn’t written.

It turns out there were at least two details in her J6C transcript that raise interesting questions about her role in the stolen documents case. First, in this April 21, 2022 deposition, Bobb revealed that she had had interactions with Alex Cannon after Joe Biden’s inauguration.

Q How about Alex Cannon?

A At that time, no.

Q You said at that time. Have you interacted with him since January 20, 2021?

A Yes.

Q Unrelated to the events we are talking about today, January 6 and the lead up?

A Yes. Correct.

In reporting on Bobb’s role in the June 3 subpoena response, she claimed to have no prior interaction with Evan Corcoran, who wrote the declaration. But interaction with Cannon would reflect ongoing involvement in purportedly legal matters after the coup attempt.

And consider the kind of lawyering her J6C testimony described her to be (and remember that other witnesses said she played no legal role, but was just involved in communication).

When the committee asked about the mid-December 2020 memo recommending that Trump invoke national security as an excuse to seize the voting machines — which, metadata shows, Bobb authored, and which, the interview revealed, she had not provided in response to a subpoena — she explained that she didn’t really author it. She just went to lunch with Phil Waldron and wrote down what he said. And then emailed what he said back to him.

I started the document, took their notes down, whatever. And then Colonel Waldron asked me to email it to him, which I did. What happened with it from there, I don’t know.

So I don’t know. I’m not sure that this — I don’t know. I don’t know if this is — this looks like what I originated on my computer, but I think it went past whatever I had done, because what I had done, I think — when I say I had done, I started the document. They wanted to work on it. They used my computer to work on it, and then when they were done doing whatever they were doing, said, hey, can you email this.

And I think that’s probably it, but I am not — you know what I mean, like, I don’t know what they changed after it left my computer.

Q Yes.

A But I had some role in initiating something like this in the sense that I had a computer that people wanted to use, and that was it.

As investigators probed this remarkable story, Bobb said Waldron was with someone named Mike but not that Mike, Mike Flynn, because she knows him, and maybe Sidney Powell but she doesn’t know.

Q Okay. All right. So let me unpack some of that. You are with Colonel Waldron. Who else is there?

A It was people that he was working with. I don’t know their names. know there was a guy named Mike. I don’t know his last name. And it was folks that — like it was the machine team folks that, you know, I didn’t really know them.

[snip]

Q What about Sidney Powell?

A She may have been. I don’t know. Like because I gave them my computer, they finished doing whatever they were doing. While they were doing that, I was working from my phone and taking calls, so I would step out and come back in.

So to the extent someone came in and out, I don’t know, you know.

As things progressed, Bobb included details that might explain a Google search from her computer of the statutes invoked, but insisted she “literally just like formatted it.” And provided the title.

Q When you started working on this, or what became this document, were you working with something else as an example? Like did you have another executive order that you used as a model?

A Probably. And I wasn’t — like I probably just found one and put it together, but just so you know, I was not putting — I didn’t do the substance and stuff of this. Like the authorities that they used and all that, I didn’t do that. I just literally just like formatted it.

[snip]

Q And were you typing up from scratch or did you have something else that you were modifying?

A I wasn’t typing it. So the — like I probably — I probably did pull up an executive order just to see like the title, but literally past the title, I did not provide that content.

Q Okay. You gave your computer to Mr. Waldron. Is he the one that was typing on your computer when they were working on this document?

A He did some of it, and then this guy Mike, whoever he was, was doing some of it. I don’t know. It was like they were brainstorming collectively and working. I don’t know.

Q One of the things you mentioned there in the authorities, just past those that you referred to, are National Security Presidential Memoranda 13 and 21.

Did you have anything to do with inserting those?

A No. I had nothing to do with the authorities.

[snip]

Q No. Do you remember Colonel Waldron or Mike or anybody else typing —

A Colonel — I’m sorry. I don’t mean to interrupt you.

Q That’s okay. Do you remember them talking about presidential memoranda?

A I remember vaguely, like I don’t have a good recollection. I’m going to give you what I think I remember. And I remember it sounded like they wanted to do something intelligence related, and EO 12333 is like the standard intelligence authority.

So I remember thinking that that made sense. And then I remember thinking I have no idea what they are doing with the other stuff. That’s the extent of my memory.

Q Okay. As far as the next paragraph it says, I, Donald J. Trump, President of the United States, find that the forensic reports of the Antrim County, Michigan, voting machines released on December 13th — and then it goes on.

Did you have any role in writing this either as a scribe or something that you came 20 up with?

In the middle of a deposition where she turned on attorney-client privilege at will, she described herself here as a “scribe.”

A I definitely didn’t come up with it. I could have been a scribe. I mean, I was — I was a scribe for a lot of things. And, like I said, I started this document.

I don’t — like I’ve also said, I don’t have the information on Dominion voting systems.

So if I physically typed this out, I had to have someone dictate it to me because I don’t have this information.

Q Tell us about the conversations you had with Mike and Colonel Waldron about this. Like what was the purpose of it, as you started to draft and pull up an example —

A I didn’t — I honestly didn’t have a whole lot. They had mentioned that they were brainstorming some type of proposal to see if there was some government action to be taken on machines or whatever. I don’t know a lot about the machines. I don’t have a lot of information on the machines. And I was more curious about the authorities because, you know, I didn’t know what authority they would use to do it.

And the two documents, one being DOD, one being DHS makes sense because I remember, you know, there was posse comitatus issue and they were talking about, you know, like DHS needs to be the lead because the military can’t do it, whatever. I don’t know. I don’t even think I weighed — I do not remember weighing in on anything substantive about this.

And the legal advice? In spite of her awareness that the memo distinguished between DOD and DHS, the agency for which she had only recently been an attorney, she didn’t have anything to do with the shitty legal advice, she says.

Q Okay. So that was going to be my next question. Without disclosing any legal advice you may have provided, were you asked to provide legal advice about this and weigh in from your perspective as a lawyer?

A I don’t think so. No.

[snip]

What do you remember about any discussions related to the appointment of a special counsel in connection with this document?

A I have limited — like I have hazy recollection, but based on the fact that it says “her,” I’m guessing they were probably thinking Sidney would get appointed, but I can’t confirm that.

Q Okay. Do you know why Colonel Waldron wanted Sidney to be appointed as a special counsel?

Q I don’t

[snip]

Q Now, working on their — on your computer, how does it get to that? And I’m sorry if you already said this.

A Yeah, that’s okay. When they were done with it, they gave me my computer back and said — I don’t remember who said it, but it was probably Phil said can you email this to Phil, or can you email this to me. And I sent it to Phil from there, and that was it.

This testimony is positively amazeballs.

And whether there’s a scrap of truth to Bobb’s claim that she, on a topic about which she fancied herself playing a legal role, simply gave her computer to non-lawyers (and maybe Sidney Powell) so they could draft a memo providing advice to the President of the United States, about a topic — national security law — on which she claims some expertise, that she would then blindly email to them without first reviewing, whether there’s a shred of truth to any of this or not, it certainly explains why Boris Epshteyn would think Bobb might be a good candidate to participate in an effort to dupe the FBI as they investigated stolen classified documents. It also may explain why she disclaimed playing a legal role when she testified in October, so she could offer the FBI a similar story about playing the same kind of dumb cut-out for legal advice.

Christina Bobb, in an interview in which she was warned that any lies could be prosecuted as False Statements (though in which she was not placed under oath), told an absolutely fantastic story about how her computer came to write a historically shocking document in the run-up to an insurrection, but she had nothing to do with what her computer wrote.

The Testimony Jack Smith Gets This Week Builds on Work from Over a Year Ago

April 6, 2023/34 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Starting on Tuesday, Jack Smith’s prosecutors started getting return grand jury appearances for a set of key Trump aides who had invoked Executive Privilege in earlier appearances. In the days ahead, that same January 6 grand jury will get the testimony of Dan Scavino, Stephen Miller, Mark Meadows and — unless Trump succeeds with some kind of last minute challenge — Mike Pence.

Starting tomorrow, Secret Service agents will testify in the stolen documents case. That comes after (according to CNN), witnesses who gave voluntary testimony last summer have made subsequent appearances before the grand jury and Evan Corcoran provided crime-fraud excepted documents and testimony to the same grand jury. Multiple other lawyers already testified before the grand jury.

While there are a few outstanding items, such as the exploitation of Scott Perry’s phone, the DC Circuit decision on the application of 18 USC 1512(c)(2) to January 6, finding a way to obtain any remaining classified documents Trump has been hoarding, a verdict in the Proud Boys trial (which may dictate charging decisions for others) — all of which efforts have been pending for over six months, before Smith was appointed — the twin investigations headed by Jack Smith appear to be headed to imminent resolutions.

In recent weeks, the same TV lawyers who were wailing last summer about the January 6 investigation into Trump (the stolen documents investigation, while already laying the groundwork for charging a former President under the Espionage Act, still remained entirely unknown), have suggested that Alvin Bragg’s indictment of Trump might, “might light a fire under other prosecutors and advance the proposition that even ex-presidents must follow the law.”

It’s an obscene suggestion, that Jack Smith or his AUSAs or Merrick Garland needed some push to pursue the investigation into Donald Trump, when instead the TV lawyers simply needed a push to review what steps the investigation was actually pursuing. That’s because all of the recent developments in the Jack Smith case — the crime-fraud ruling, the Executive Privilege waiver, the testimony of Mike Pence — very obviously build on work done last year, well before Garland appointed Jack Smith. Some of those steps were even public at the time last summer when the very same TV lawyers were wailing. All of the climactic steps occurring in recent weeks were easily foreseeable by August.

Prosecutors have been building to this moment for a long time.

As I noted here, investigations in the era of cloud computing usually follow a clear logic:

Use subpoenas to obtain metadata to identify key subjects
Use metadata to obtain cloud warrants of subjects
Use cloud warrants to obtain warrants for phones (a necessary step if encrypted apps were used in furtherance of a crime, as was the case in the lead-up to January 6)
Use overt subpoenas for other witnesses to obtain evidence
Obtain grand jury testimony from witnesses

By the time the first overt subpoenas and warrants go out — which in the January 6 case was May 2022, though in the case of Sidney Powell was September 2021 — DOJ will already have obtained metadata and cloud content from key subjects of the investigation. Only after DOJ works through that covertly obtained evidence does it start doing the things that alert subjects to the scope of the investigation by subpoenaing other witnesses or seizing phones.

Even in a garden variety investigation, it can take six months from the date of seizure of a subject’s phone until an arrest. This was true even in the militia conspiracy cases, where arrests were an attempt to stave off further violence, in part because FBI was exploiting so many phones.

In the case of sensitive witnesses like lawyers, presidential advisors, and members of Congress, it takes a number of extra steps to get grand jury testimony or access content.

In Rudy Giuliani’s case, a privilege review of his phone content took nine months (though that review incorporated content relating to January 6, so it has been done since January 2022). In Enrique Tarrio’s case (largely due the security he used on his phone), it took over a year to access the content on his phone. In Scott Perry’s case, prosecutors are still working on it seven months later. In James O’Keefe’s unrelated case, Project Veritas still has one more chance to prevent prosecutors from getting evidence the FBI seized in November 2021, almost 17 months ago. You can’t skip privilege reviews, because if you do, key evidence will get thrown out during prosecution, rendering any downstream evidence useless as well.

In cases of privilege, DOJ first gets grand jury testimony where the witness invokes privilege, and then afterwards makes a case that the needs of the investigation overcome any privilege claim. DOJ first started pursuing privileged testimony regarding events involving Mike Pence with grand jury testimony from Pence aides Greg Jacob and Marc Short last July, then with testimony from the two Pats, Cipollone and Philbin, in August. It got privilege-waived testimony from Pence’s aides in October and from the two Pats on December 2. That process undoubtedly laid the groundwork for this week’s DC Circuit ruling that people like Mark Meadows and Dan Scavino must likewise testify to the grand jury.

By the time DOJ first overtly subpoenaed material in the fake electors plot last May, it had done the work to obtain cloud content from John Eastman and Jeffrey Clark. If DOJ had obtained warrants for the already seized phone content from Rudy — which is likely given the prominence of Victoria Toensing from the start of the fake elector subpoenas — then it would have built on content it obtained a year earlier in another investigation.

Some of this undoubtedly benefitted from the January 6 Committee’s work. I would be shocked, for example, if DOJ didn’t piggyback on Judge David Carter’s March 28, 2022 decision ruling some of John Eastman’s communications to be crime-fraud excepted. As NYT reported in August, in May 2022, DOJ similarly piggybacked on J6C’s earlier subpoenas to the National Archives (and in so doing avoided any need to alert Joe Biden to the criminal, as opposed to congressional, investigation); this is consistent with some of what Mueller did in the Russian investigation. Cassidy Hutchinson’s testimony, obtained via trust earned by Liz Cheney, has undoubtedly been critical. But the January 6 Committee also likely created recent delays in the January 6 and Georgia investigation, thanks to the delayed release of transcripts showing potentially exculpatory testimony.

But much of it preceded the January 6 Committee. I’ve shown, for example, that DOJ had a focus on Epshteyn before J6C first publicly mentioned his role in the fake electors plot. Toensing’s involvement came entirely via the DOJ track.

The path that brought us here went from the covert steps in advance of the May 2022 Clark and Eastman warrants (possibly including Rudy Giuliani warrants), to testimony from Trump’s aides, to testimony from White House Counsels, to Meadows and Pence and the rest of them.

There’s not a shred of evidence that DOJ’s prosecutors or Garland were afraid of taking these steps (FBI might be another issue). Instead, there’s a clear timeline of public steps DOJ has taken to get us to this point, which necessarily built on non-public things DOJ did to get to the point of obtaining warrants for the email accounts of several lawyers (and whatever covert steps it took with non-lawyers that won’t be public for years).

A timeline of the stolen document investigation is here.

Some key dates in the January 6 investigation are:

January 4, 2021: DC authorities seize Enrique Tarrio’s phone

January 25, 2021: Stop the Steal VIP Brandon Straka arrested; DOJ IG opens probe into Jeff Clark and others

February 17, 2021: First allegedly cooperative interview with Straka

March 17, 2021: DOJ makes first tie between Oath Keepers investigation and Roger Stone

March 25, 2021: Second allegedly cooperative interview with Straka

April 21, 2021 (Lisa Monaco’s first day on the job): DOJ obtains warrant targeting Rudy Giuliani’s cell phones in Ukraine investigation

June 23, 2021: First Oath Keeper who interacted with Stone enters into cooperation agreement

August 19, 2021: Alex Jones sidekick Owen Shroyer, who participated in Friends of Stone list and served as a communication hub between Proud Boys and others, arrested

September 2021: DOJ subpoenas records from Sidney Powell grift

September 3, 2021: SDNY makes an ultimately successful bid to review all content on Rudy’s devices for privilege (making such content available if and when DOJ obtains January 6 warrant targeting Rudy)

Fall 2021: Thomas Windom appointed to form fake elector team

October 28, 2021: Merrick Garland tells Sheldon Whitehouse DOJ is following the money of January 6

November 2, 2021: Special Master Barbara Jones releases first tranche of materials from Rudy’s phones, including content through seizure

November 22, 2021: Trump appointee Carl Nichols asks James Pearce whether 18 USC 1512(c)(2) might be applied to someone like Trump (he would go on to issue an outlier opinion rejecting the application)

By December 2021: JP Cooney starts long-invisible investigation into financial side of January 6

December 2021: NARA and Mark Meadows begin process of completing his record of PRA-covered communications

December 10, 2021: Judge Dabney Friedrich (a Trump appointee) upholds application of 18 USC 1512(c)(2) to January 6

January 5, 2022: Merrick Garland reiterates that DOJ is investigating the financial side of January 6

Mid-January 2022: DOJ finally obtains contents of Tarrio’s phone

January 19, 2022: Jones releases remaining content from Rudy’s phones; SCOTUS declines to review DC Circuit rejection of Trump’s Executive Privilege claims with respect to January 6 subpoenas

January 5, 2022: Lisa Monaco confirms DOJ is investigating fake electors plot

February 18, 2022: In civil cases, Judge Amit Mehta rules it plausible that Trump and militias conspired to obstruct vote certification, as well that he aided and abetted assaults

March 2, 2022: Oath Keeper in charge of Stone security on January 6, Joshua James, enters into cooperation agreement

March 28, 2022: Judge David Carter issues crime-fraud ruling covering John Eastman’s communications with and on behalf of Trump

May 2022: DOJ subpoenas all NARA records provided to J6C

May 26, 2022: Subpoenas for fake electors plot including Rudy, John Eastman, Boris Epshteyn, Bernie Kerik, and Jenna Ellis, among others; warrants for email accounts of Jeffrey Clark, John Eastman, Ken Klukowski, and one non-lawyer

June 6, 2022: DOJ charges Proud Boy leaders with seditious conspiracy

June 21, 2022: Second set of fake electors subpoenas, adding Mike Roman and others, warrants for NV GOP officials and GA official

June 22, 2022: DOJ searches Jeffrey Clark’s home and seizes his phone

June 28, 2022: DOJ seizes John Eastman’s phone

June 23, 2022: DOJ completes exploitation (but not scoping) of Shroyer’s phone

June 24, 2022: Ali Alexander grand jury appearance

June 27, 2022: Then Chief Judge Beryl Howell permits prosecutors to obtain emails between Scott Perry and Clark and Eastman

July 22, 2022: Marc Short appears before grand jury

August 9, 2022: Scott Perry’s phone seized

August 2022: Mark Meadows provides previously withheld PRA covered materials to NARA

Early September, 2022: Pre-election legal process includes seizure of Boris Epshteyn and Mike Roman’s phones, subpoenas to key aides including Dan Scavino, Bernie Kerik, Stephen Miller, Mark Meadows, subpoenas pertaining to Trump’s PAC spending,

October 13, 2022: Marc Short and Greg Jacob make second, privilege-waived grand jury appearance

November 18, 2022: Merrick Garland appoints Jack Smith

December 2, 2022: Pats Cipollone and Philbin make second, privilege-waived grand jury appearance

December 2022: Rudy Giuliani subpoena asks for information on his payment

February 9, 2023: Mike Pence subpoenaed

February 23, 2023: DC Circuit hears Scott Perry’s challenge to order providing access to his phone content

March 9, 2023: Judge Kollar-Kotelly orders Peter Navarro to turn over PRA-covered contents from Proton Mail account

March 28, 2023: Chief Judge Jeb Boasberg rules Mike Pence must testify (though protects some areas on Speech and Debate grounds)

April 4, 2023: DC Circuit declines to stay Beryl Howell ruling ordering testimony from Mark Meadows and others

Kash’s Castles of Scatter and Evan Corcoran’s BCC

March 25, 2023/27 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

More than seven months after seemingly threatening to sue the National Archives because Mark Meadows and Donald Trump fucked up their effort to declassify the Russian investigation documents, John Solomon finally did sue on March 21, represented by the America First Legal Foundation — Stephen Miller’s gig.

I’d be shocked if the lawsuit went anywhere.

That’s because NARA General Counsel Gary Stern provided Kash and Solomon with the explanation of what happened with the attempted declassification over and over and over. First, Trump didn’t declassify the documents. He ordered the binder of Crossfire Hurricane documents be sent to the Attorney General, who would implement the final declassifications, then send the document back to the White House.

I have directed the Attorney General to implement the redactions proposed in the FBI’s January 17 submission and return to the White House an appropriately redacted copy.

Then the next day, January 20, 2021, Mark Meadows sent all that to the Attorney General to conduct a Privacy Act review before releasing anything.

As Stern explained to Kash and Solomon, what remained at the White House at that point was a collection of 2,700 “undifferentiated pages,” a cursory review of which revealed conflicting redactions and some documents lacking the requisite declassification stamp. The stuff that got sent to DOJ was a Federal Record, not a Presidential Record, and by the time Kash and Solomon started this process, it was already being processed as part of a Judicial Watch FOIA lawsuit (the first two releases in which — one, two — recently came out).

In other words, Trump and Mark Meadows fucked this up. NARA didn’t. Trump did.

The likely futility of the lawsuit notwithstanding, the lawsuit and its timing may have more to do with publicly sharing the correspondence Solomon and Kash Patel had with NARA last year, between the time Trump would have realized he had a legal problem with this stolen classified documents, and the immediate wake of the search that made that legal problem a far bigger problem.

As the correspondence Solomon released with the lawsuit reveals, Evan Corcoran initiated this process, on June 17, 2022, informing Stern that “because of his schedule” on June 17 and 18, he would sign a letter designating Kash and Solomon NARA representatives on June 19, after which the two wanted to immediately (Solomon explained in reply) get access to the Russian documents.

Because of his schedule today and tomorrow, former President Donald J. Trump will sign a letter on Sunday afternoon, June 19, 2022, informing the Acting Archivist of the United States that he has designated Kash Patel and John Solomon (copied) to be his NARA representatives.

I will transmit that letter to the Archivist and you (and John Laster) via email when I receive it.

Kash and John would like to begin work reviewing documents at the Archives on Tuesday, June 21, 2022.

I will leave it to the three of you to work out logistics (and feel free to move me to bcc)

Think about that! By April 29, Corcoran was the guy with whom Stern was coordinating on the FBI request for access to the documents Trump belatedly returned in January 2022. On May 5, Corcoran asked to access what had been returned and on the very same day — the search affidavit notes — Kash claimed that not just the Russian documents had been declassified, but a bunch of other documents had too. On May 11, FBI subpoenaed Trump for remaining classified documents. On June 3, Corcoran provided just a subset of the remaining documents.

And then, two weeks after participating in a shell game to facilitate withholding classified documents, Corcoran contacted Stern to arrange fairly urgent access for Kash and Solomon to the materials he had first asked to access in May.

The guy in charge of staving off criminal exposure for hoarding classified documents is the guy who arranged to have Kash and Solomon made NARA representatives!

And then, Stern noted, he moved Corcoran to “bcc.” That means it’s not clear whether Corcoran remained on bcc or not. We don’t know whether Corcoran, as was his intent, remained part of the rest of this exchange. Which makes the timing of this probably futile lawsuit — the second business day after Beryl Howell ruled that Corcoran must testify and the day before Corcoran was initially due to comply — all the more interesting.

There are other interesting tidbits of the correspondence Solomon includes — most notably Kash’s increasing frustration because he couldn’t name via what agency he retained clearance.

On July 18, for example, Kash wrote an email riddled with typos bitching because Stern did not take, from the letter Patel’s one-time contractor employer sent, as approval to access classified records at NARA.

Actually, that’s only part of the communications your security team and you received. The rest states:

they (NARA) could look up your clearance in DISS or Scattered Castles and your need to know came from working directly for President Trump. Per policy- In order to access anything – you would need a clearance and a need to know. You have both of these based on your position with President Trump.

If you are going to provide a correspondence on this matter and directly site a communication, please do not cut out the important, substantive portion that resolves the matter. As you can see, you can validate my clearance and my need to know is satisfied. The only question that remains is why I am getting poor/incorrect information, and why you haven’t used the data bases to verify my clearance, when that is clearly within your agencies ability (its literally how every agency in government validates said clearances). Again, I expect to be reviewing these records tomorrow since the data bases search to validate my clearance is instantaneous. Direct your security office accordingly and stop blocking my access. Thanks much

Kash

[my emphasis]

Much of this section of the exchange reads like a sloppy attempt to social engineer access. Which makes Kash’s claim that the NSC was a more recent employer of his than ODNI of particular interest.

Thanks for the update, please go to DoD and the NSC at the White House, those being my last employers in govt, they would be best suited to verify my clearance (they would not be held at ODNI) but anyone with access to Scattered Castles can easily verify the clearance and who holds it. Thanks much Kash

It’s not clear how this part of the exchange was resolved. The whole exchange led me to wonder whether Kash had a clearance during his time running DOD at all. But none of this would have amounted to a need to know in any case, notwithstanding what a former employer had said.

There was great urgency in this period to get into the archives, to see what Trump had actually turned over in January 2021. Then the correspondence ended — at least as Solomon has it — on August 17.

Incidentally, the correspondence provides at least some corroboration for my speculation that Kash was disseminating parts of the Carter Page FISA applications that had been sequestered under an order from the FISA court — sequestered, as it happens, by an order from Jeb Boasberg, who just took over as DC’s Chief Judge. It also may explain some curious metadata in the copy of the Mark Meadows order that John Solomon released on July 20, 2022. Solomon’s copy of Meadow’s order showed a creation date of September 27, 2021, but a modification date of June 23, 2022.

June 23 is the first of two times that Stern sent Solomon and Kash a copy of the memo. The modification date likely reflects NARA resending the document.

The September 27, 2021 creation date likely reflects the time when, in fall 2021, NARA first discovered the memo after Justin Clark and Alex Cannon came looking for it.

There’s one more reason this is significant. After receiving (or being described) that Mark Meadows’ memo last fall, Cannon — the guy who repeatedly advised Trump to return the classified documents — would have known the Russian documents were not declassified. But if those got returned as a result, it would mean that any other copies out there, including copies shared with Solomon, would be illegally disseminated classified records.

Update: I’ve updated my stolen documents resource page with some of the dates from Solomon’s lawsuit and caught up to my past posts.

Update: This led me to go back and review the stories John Solomon wrote in the aftermath of the search, which unsurprisingly include numerous bullshit claims.

August 11, 2022: Solomon regurgitates story describing “cooperation” in June, including Secret Service involvement in June 3 meeting and aftermath.

August 22, 2022: JustTheNews posts the text of letter from Debra Steidal Wall to Trump.

Update: Corrected which year Trump returned some documents.

The “Escalating,” “Aggressive,” “Intensifying” Step of Subpoenaing Key Witness Mark Meadows

February 16, 2023/74 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

CNN and WSJ have reported, using all the typical hype words (see this thread for a collection of similar bullshit language), that Jack Smith’s team has subpoenaed Mark Meadows. But neither has included the most important information about the subpoena: what they’re really looking for.

They report only that Smith wants documents and testimony pertaining to January 6.

Special counsel Jack Smith’s office is seeking documents and testimony related to January 6, and Meadows received the subpoena sometime in January, the source said.

Neither Meadows’ attorney, the very good George Terwilliger, nor DOJ commented on this news, meaning it almost certainly came from one of the Trump lawyers who feeds all these stories, possibly even with the inflammatory adjectives.

It is not “aggressive” to subpoena one of the centrally important witnesses. It was not “aggressive” for the January 6 Committee to subpoena Meadows among their first investigative steps. It was not “aggressive” for Fani Willis to subpoena Meadows.

What is unusual is subpoenaing someone who is likely a key subject if not a target of the investigation, two years into the investigation, especially after he spent at least nine months trying to retroactively comply with the Presidential Records Act by providing the Archives communications he should have preserved in the first place, after which prosecutors obtained the communications from the Archives directly.

Indeed, DOJ’s Justice Manual requires specific approvals before subpoenaing someone if the person is a target.

If a voluntary appearance cannot be obtained, the target should be subpoenaed only after the United States Attorney or the responsible Assistant Attorney General have approved the subpoena. In determining whether to approve a subpoena for a “target,” careful attention will be paid to the following considerations:

The importance to the successful conduct of the grand jury’s investigation of the testimony or other information sought;

Whether the substance of the testimony or other information sought could be provided by other witnesses; and

Whether the questions the prosecutor and the grand jurors intend to ask or the other information sought would be protected by a valid claim of privilege.

Mind you, DOJ’s investigation, going back long before Smith joined it, has had to reach this bar on the testimony or legal process covering others by dint of various privileges, including attorney-client, executive, and speech and debate. But thus far, DOJ has usually used warrants, not subpoenas, with people who might be subjects or targets of the investigation.

There’s one known exception, of a person at the center of suspected crimes who nevertheless received a subpoena: Rudy Giuliani, in November (the CNN report on the subpoena emphasized the request for documents, but Reuters’ coverage said the subpoena asked for testimony as well). Notably, though, given how centrally involved Rudy was in suspected crimes leading up to the coup attempt, that subpoena asked for documents pertaining to the potential criminal behavior — the misspending of money raised by Save America PAC — of others. Indeed, DOJ seems to be treating subpoenas about discreet topics individually, meaning a witness who might have a good deal of exposure in one area may nevertheless be asked to testify about another area.

Something similar could be true here.

Trump’s PAC gave Meadows’ NGO, Conservative Partnership Institute, $1 million long after January 6, and CPI received the bulk of the money spent by the PAC.

Trump’s Save America PAC on July 26 gave $1 million to the Conservative Partnership Institute, the group where Meadows is a senior partner.

The donation came less than four weeks after the House voted to establish a select committee to investigate the January 6, 2021, insurrection at the US Capitol. In December, the House voted to recommend that the Department of Justice pursue criminal charges against Meadows for refusing to cooperate with the committee’s probe.

Trump’s political organization has amassed $122 million in cash reserves, his team announced Monday.

The $1 million to Meadows’ non-profit made up most of the $1.35 million in donations that Trump’s PAC disbursed to political organizations and candidates in the second half of 2021.

Since then, the organization has been described as the “insurrectionists’s clubhouse,” the key player in efforts to push the Republican Party even further right, including during Kevin McCarthy’s fight to be Speaker. The policies pursued by Meadows’ organization are not, on their face at least, criminal; they would be protected by the First Amendment. But Trump’s decision to fund it using funds raised promising the money would be used for something else might be.

Who knows? Maybe the subpoena seeks information more central to the events leading up to January 6. Perhaps it’s an effort to obtain Signal texts that Meadows didn’t otherwise turn over to the Archives. Perhaps Terwilliger is just that good, and Meadows is out of legal danger for his role in stoking a coup attempt.

But the most interesting detail of this subpoena is not that DOJ sent it, but that someone so obviously exposed himself would get one.

Update: Roger Sollenberger, one of the best campaign finance reporters, has a long discussion of how Trump laundered money from the Save America PAC through other entities, including CPI.

Trump’s National Security Adviser Responded to an Attack on the Capitol by Sending Personal Tweets

February 13, 2023/30 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

As former National Security Adviser Robert O’Brien tells it — or told it, in his August 2022 interview with the January 6 Committee — he responded to an attack on the Capitol by sending personal tweets.

CNN reported last week that O’Brien will soon have the opportunity to tell a more credible story to both of Special Counsel Jack Smith’s grand juries, which is why I decided to read the transcript of O’Brien’s interview with the January 6 Committee.

Presumably, Smith wants to ask O’Brien about Trump’s firing of people who questioned his authority to invoke the Insurrection Act, a topic that like recent witness Johnny McEntee, O’Brien addressed in his January 6 interview. Perhaps Smith wants him to explain the plot to seize voting machines and other details surrounding the December 18 meeting, which recent witness Ken Cuccinelli addressed. O’Brien may be asked about his challenge to Cassidy Hutchinson’s credibility in his own January 6 testimony, perhaps the only person who has questioned her testimony who hasn’t since been discredited.

Given the CNN report that he would testify before both the January 6 and the stolen document grand juries, he may be asked about his knowledge of plans to take documents pertaining to topics Trump obsessed about, not just the Russian investigation (which O’Brien calls, “Russiagate hoax documents”), but also specific intelligence about Venezuela; O’Brien claims not to remember anything about the efforts to declassify documents to take.

But the most striking aspect of O’Brien’s transcript was his admitted failure to do much of anything as the Capitol was attacked.

To be fair, the appearance of O’Brien’s almost complete inaction as the Capitol was attacked stems, in part, from his own forgetfulness. He claims to remember only one interagency planning meeting in advance of January 6, even though other witnesses testified to several. He only recalls a concern about threats to the White House in advance, not the Capitol. He doesn’t recall briefing the President, the Chief of Staff, or the White House Counsel of intelligence in advance of the attack. He doesn’t recall any talk of Trump marching to the Capitol.

He recalls speaking to Mike Pence during the attack, but can’t recall most details about the conversation.

He recalls speaking to Biden National Security Adviser Jake Sullivan, who would not assume power for another two weeks. But he can’t recall whether he spoke to Chief of Staff Mark Meadows during the attack.

He recalls that his Deputy Matthew Pottinger called him and told him he had to resign, but can’t recall that he did so specifically in response to Trump’s text targeting Mike Pence.

He’s certain he made no effort to speak to the President as a mob of his supporters attacked a co-equal branch of government. He did not do so, he explained, because he was in Miami and wanted to speak to the President in person.

The story O’Brien told of his actions leading up to and on January 6 was of breath-taking dereliction of duty.

When asked specifically how he responded to learning that the President’s supporters were attacking the Capitol, he explained he sent some personal Tweets.

Q Okay. All right. So let’s talk about then what you did after receiving that information. What steps did you take now that you’re aware of this violence at the Capitol and had this conversation with the [Vice, sic] President? What did you do next?

A So I did a couple of things. I’m not sure the exact order in which I did them.

Q Okay.

A One is I put out a series of tweets on my personal Twitter account.

[snip]

Q Okay. All right. So, again, you didn’t take any action in particular response to this [Trump’s tweet].

Your tweets don’t start until a bit later, your personal tweets that you sent out.

A Yeah, I’m not sure what time my tweets came out, but I wouldn’t say it’s in direct response to this, but I did tweet that I thought the Vice President was courageous.

Q Yeah, you did.

[snip]

All right. The next one up says, “My first experience in government was serving as an intern for Senator Hayakawa of California. What the mob did to our Senate chamber today was an utter disgrace.”

Again, what motivated you to put that out? And do you remember roughly when that was?

A So, again, I don’t recall — and I don’t have a time or a date stamp on this. I think that was the first tweet that I put out on my personal account.

Q I think this is — you’re right — from your personal account, not the official NSA account.

A Correct. And I wanted to get some tweets out on my personal account because I didn’t have to go through a White House clearance process or get others involved. I wanted to try and act, you know, somewhat quickly and make sure the people that — to the extent anyone followed it or was interested, that was my view.

There were some other calls — to Mike Lee and Mitt Romney, for example. But seemingly no coordination of any response. Just tweets about the internship he had when he was 14.

There are certainly reasons to doubt his forgetfulness. At other times, he uses other tactics to avoid discussing whether he had direct contacts with Trump or anyone else of substance, like invoke Executive Privilege over his own feelings.

Q Were you frustrated, Ambassador O’Brien, with the President’s conduct on January 6th?

Mr. Larson. I think this starts to get into — invariably gets into communications with the President and impressions of the President and all that. So I’m going to assert executive privilege here.

And there’s good question of how diligently O’Brien searched for communications relevant to his testimony.

For example, there was a damning document: a draft concession speech that O’Brien wrote for Trump on December 21. O’Brien sent it from his home email account to his White House email account — because maybe his printer was out of paper, he mused.

Q 9 o’clock at night on the 21st.

A Yeah. So I was obviously at home. I probably sent it because I didn’t have a printer. I probably didn’t want to print it or didn’t have a printer at home or it may have been out of paper or something.

And this is something I did on what I considered was my own time. I thought it was — I think by this time the electoral college had already voted, and I think that the primary lawsuits that the President’s legal team had brought had been decided. You know, I can’t be certain, but I’d probably seen that on the news.

And I thought it would be — I thought I’d draft up what was in essence a concession speech, but put it in language that might appeal to the President and I thought might be something that the President could — the type of speech that the President would feel comfortable giving, but at the same time would convey the message that he conceded the election. And I thought it would be good for him and for the country.

O’Brien claims the only one he shared it with at the White House was his own Chief of Staff, not Trump’s or not Trump himself.

Q Did you share this with anyone after you sent it to your own official White House account?

A Yes.

Q With whom?

A I believe I shared it with Alex Gray, my chief of staff.

Q Your chief of staff. I see.

A Right.

Q How about Mark Meadows or the President himself?

A No. I don’t believe I did.

What’s interesting is not just that O’Brien sent it, but that he didn’t turn over an email sent from his own account in his production to the committee. The document should have been turned over to the committee by both O’Brien himself and the Archives. The committee only got the Archives copy

Q Okay. Let me show you another exhibit, this is No. 9, that is an email from your personal account to your official account. I don’t recall if this came from your production or from the Archives.

A I think this came from your production.

Q Yeah. I think that’s right. This is a record produced by the National Archives.

O’Brien wasn’t giving anything up.

And that’s why I find this exchange showing the National Security Adviser — the National Security Adviser!!! — explaining how he was doing business on Signal and WhatsApp and no, he’s not entirely sure whether all his texts got archived properly so suspect.

Q Ambassador O’Brien, how about any other messaging applications, like Signal or Telegram or WhatsApp? Did you use any of those platforms to conduct any official business when you were National Security Advisor?

A I did.

Q Okay. Which of those platforms did you use?

A I think I received some messages from people on WhatsApp and on Signal.

Q All right. And again, tell us what the circumstances would be that would trigger the use of those platforms versus the White House email account or your official device.

A So on the official devices, there was no ability, I don’t think, to put on Signal or any of the other applications.

There were some foreign ambassadors or foreign ministers that would want to get in touch with you and they tended to us Signal or WhatsApp.

[snip]

Q I’m just wondering sort of the general circumstances that would cause you to go to WhatsApp or Signal. Was it just, hey, it’s a foreign leader, so that’s the platform that he or she uses? Or would you, beyond that, use it for other reasons as well?

A Yeah. So I’m not a consumer of social media or those sorts of applications for the most part. There were some foreign leaders that asked for my cell phone number so that they could connect via Signal, because I think some foreign leaders from time to time would reach out and they were concerned about intercept and they felt there was some safety — that was their opinion — there was some safety. My opinion was different. But they wanted to communicate by Signal or WhatsApp, but it was on rare occasions.

Q I see. Okay. And beyond that, Ambassador O’Brien, would you use WhatsApp or Signal to talk to someone on a personal matter or campaign related or things that you wanted to ensure were kept off of the official government channel?

A Yeah, not that I recall. That was not my practice.

Given how little else he recalls about his job, suffice it to say this “do not recall” whether he used Signal or WhatsApp for other purposes deserves some skepticism, particularly given that everywhere he relies on the committee to pull up call records. Especially given his lackadaisical attitude about preserving whatever Signal texts he sent, at least with foreign ambassadors.

Q Got it. All right. Now, on the subject of these personal devices or accounts, did you provide all [inaudible] with the official communications from these personal accounts to the National Archives when you completed your tenure as National Security Advisor?

A So I don’t know if I had any information on those devices. I do know that when I left the job at the State Department there were some conversations I took screenshots of and I left those behind for the State Department for my files. So that was my practice there.

When it comes to the leaving as NSA, I may have had — you know, I don’t recall, I don’t recall if I screenshotted. I know I screenshotted a few things. I don’t know if they were left behind for the Archives. That would have been my practice. But again, I can’t recall.

It is undeniably true that Robert O’Brien responded to an attack on the Capitol by Tweeting, on his personal account, that Mike Pence was courageous.

But it is also the case that there’s a whole lot of forgetting going on here that looks more like a gap in communications records than anything else.

Which may be on of the biggest things for which Jack Smith would like to get O’Brien on the record.