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“$$$$$$:” Josh Dawsey Comes Full Circle on Trump’s Fundraising Corruption

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I’m going to share something I’ve been laughing to myself about for months, since before I wrote this post on how the financial aspect of Jack Smith’s investigation would be a way to break through the otherwise formidable wall of lawyer-witnesses between investigators and Trump’s crimes.

There’s a reason why the fundraising aspect of Trump’s Big Lie has been accessible to investigators, even beyond the fact that there’s boatloads of financial evidence available with a subpoena. That’s because reporters, including Josh Dawsey, were able to track Trump’s fundraising in real time back in 2020, and when they saw what he was doing, they asked the Director of Communications for Trump’s campaign, Tim Murtaugh, about it.

Heck, Dawsey even wrote a story on December 1, 2020, over a month before the Big Lie led to an insurrection, reporting on this scam.

President Trump’s political operation has raised more than $170 million since Election Day, using a blizzard of misleading appeals about the election to shatter fundraising records set during the campaign, according to people with knowledge of the contributions.

The influx of political donations is one reason that Trump and some allies are inclined to continue a legal onslaught and public relations blitz focused on baseless claims of election fraud, even as their attempts have repeatedly failed in court and as key states continue to certify wins for President-elect Joe Biden.

Much of the money raised since the election is likely to go into an account for the president to use on political activities after he leaves office, while some of the contributions will go toward what is left of the legal fight.

[snip]

The donations are purportedly being solicited for the Official Election Defense Fund, whose name is featured prominently atop the Trump campaign’s website.

There is no such account, however. The fundraising requests are being made by the Trump Make America Great Again Committee, a joint fundraising effort of the Trump campaign and the Republican National Committee. As of Nov. 18, that committee also shares its funds with Save America, a new leadership PAC that Trump set up in early November and that he can use to fund his activities after the presidency.

Dawsey appears to have gotten no response from Murtaugh.

What happened with his inquiry instead — along with one Politico’s Maggie Severns sent on November 11 and a follow-up question CNN’s Jeremy Diamond sent on November 24 — is that Murtaugh, who could have no conceivable attorney client privilege, sent the query to Justin Clark, who otherwise would have attorney-client privilege, along with a bunch of other senior campaign officials, to ask whether they should “still ignore” press inquiries about the fundraising.

In the case of Dawsey’s email, they said things like this to each other:

On Nov 30, 2020, at 7:03 PM, Tim Murtaugh <[email protected]> wrote:

I side with no comment. He’s going to write about the split and if we say stuff about legal expenses it will serve to highlight the argument that the fundraising pitch is misleading.

From: Jason Miller <[email protected]> Sent: Monday, November 30, 2020 7:24 PM

To: Tim Murtaugh <[email protected]> Cc: Sean Dollman <[email protected]>; Justin Clark <[email protected]>; Bill Stepien <[email protected]>

Subject: Re: [EXTERNAL]$$$$$$

Fair points. Sean -what are the reporting deadlines for these respective entities -12/15? It will be tougher to dodge such answers after reporters can find it themselves.

[snip]

Re: [EXTERNAL]$$$$$$

We should talk tomorrow about whether to just announce this by press release like we would any other fundraising announcement. If we have the numbers we can discuss how the breakdown among entities needs to be messaged. Also key, as Jason pointed out, that POTUS is on board with how it will be described. [my emphasis]

In response to Dawsey’s query back on November 30, 2020, Murtaugh, Clark, Jason Miller, CFO Sean Dollman, and Campaign Manager Bill Stepien exchanged emails recognizing that the fundraising pitch they were using was misleading, strategizing how they were going to continue to distract journalists from the misleading aspect of their pitches after they had to disclose their fundraising, and noting that they were going to ask Trump if he was comfortable with them fluffing journalists on how they were misleading small donors.

And Murtaugh, because he had no conceivable privilege in these exchanges, sent this exchange to the January 6 Committee and, I assume, to DOJ when they subpoenaed him.

That’s why I find it hilarious that Dawsey, in a report on a new set of subpoenas sent out in March that follow ones sent in December or November and September, wonders whether prosecutors will find the same kind of damning evidence that Trump’s campaign knew they were engaged in fraud as the Steve Bannon Build the Wall fraud did.

It’s unclear whether prosecutors will find similar kinds of evidence to support an indictment in this case.

I’m pretty sure they’ll find it, because that evidence has your name on it, Josh! One way Jack Smith will prove that Trump’s people knew they were lying to the rubes sending in their spare cash is by showing how panicked the campaign was when people like Dawsey started to ask about it.

WaPo suggests the subpoenas he describes disclose “the breadth of Smith’s investigation” and claims this prong of the investigation follows the release of the January 6 Committee Report.

The special counsel’s increased interest in fundraising follows the December release of the final report of the House select committee that investigated the Jan. 6 attack, which concluded that the Trump campaign and Republican National Committee’s joint fundraising operation brought in $250 million between the November election and Jan. 6, sending as many as 25 emails to supporters each day, many claiming that the election had been “rigged” or that Democrats had tried to steal the presidency and urging people to join the “Trump Army.” The Trump campaign sent several emails on Jan. 6 itself, including one declaring, “TODAY. This is our LAST CHANCE … The stakes have NEVER been higher. President Trump needs YOU to make a statement and publicly stand with him and FIGHT BACK.”

But not only have other outlets been reporting on it, CNN reported in December that this financial prong of the probe (which like NYT, they reported in September) had been going on, at that point, for a year, though the PAC prong of it may have post-dated the J6C presentation of this scam last June.

Another top prosecutor, JP Cooney, the former head of public corruption in the DC US Attorney’s Office, is overseeing a significant financial probe that Smith will take on. The probe includes examining the possible misuse of political contributions, according to some of the sources. The DC US Attorney’s Office, before the special counsel’s arrival, had examined potential financial crimes related to the January 6 riot, including possible money laundering and the support of rioters’ hotel stays and bus trips to Washington ahead of January 6.

In recent months, however, the financial investigation has sought information about Trump’s post-election Save America PAC and other funding of people who assisted Trump, according to subpoenas viewed by CNN. The financial investigation picked up steam as DOJ investigators enlisted cooperators months after the 2021 riot, one of the sources said.

That may be why Merrick Garland has been saying the investigation was following the money since October 2021, at which point the similar fraudulent fundraising investigation into Sidney Powell was reported by … the Washington Post.

The investigation into fundraising fraud is important by itself for the (outside) possibility it’ll lead Trump’s supporters to turn on him for cheating them. It could help to prove that Trump’s efforts to obstruct the vote certification on January 6 were “corrupt” by any definition of the term that the DC Circuit will ultimately adopt. But it likely also serves as a useful prosecutorial tool not just because it had a public-facing aspect that resulted in non-privileged conversations like the one above, but also because a goodly number of Trump people who weren’t implicated in the actual election theft were involved and cognizant of the financial fraud.

About Your Pence Special Counsel Complaint: On the Missing Coverage of Section 600.2(b)

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I’m seeing people ask why Merrick Garland hasn’t appointed a Special Counsel yet to investigate Mike Pence when (the claim is) he did for President Biden.

The answer is … that’s not what happened.

DOJ learned about the documents at Pence’s house no earlier than January 18 (probably on January 19), so seven or eight business days ago.

At this stage of the Biden review (seven days after DOJ learned about the documents from the Archives), Garland hadn’t appointed US Attorney for Chicago John Lausch yet. As Attorney General Garland explained when he announced the appointment of Robert Hur, ten days after DOJ learned about the documents at Biden’s office, he asked Lausch to investigate:

  • November 4: DOJ learns of the Biden documents
  • November 9: FBI starts an assessment
  • November 14: Garland appoints John Lausch

More importantly, Lausch wasn’t appointed as a full Special Counsel under 28 CFR 600.4, which is what Jack Smith was appointed under. Rather, Garland appointed Lausch under 600.2(b).

On November 14, pursuant to Section 600.2(b) of the Special Counsel regulations, I assigned U.S. Attorney Lausch to conduct an initial investigation to inform my decision whether to appoint a Special Counsel.

Section 600.2(b) permits the Attorney General to appoint someone to conduct an “initial investigation” to better inform the decision whether to appoint a full-blown Special Counsel.

Importantly, Garland didn’t reveal that he had appointed Lausch until the day he appointed Hur, this time under 600.4.

So Garland could well have appointed someone — could be Lausch, could be Hur, could be someone who wasn’t appointed under the Trump-Pence Administration, as both Lausch and Hur were — to conduct an initial assessment regarding Pence’s documents without telling the public, just as he did with Biden. If he followed the same approach he did with Biden, he might not reveal that step unless and until he appointed a full Special Counsel.

Check back on March 17 to see where DOJ is with a Pence review, which would be the same almost two months out as it took to appoint a Special Counsel with Biden.

Maybe by then someone will have been appointed to review the classified holdings of all former Presidents and Vice Presidents.

To anticipate one more complaint, about why Garland waited nine months after the discovery of classified documents in boxes that had been at Mar-a-Lago before appointing Jack Smith: DOJ started using a grand jury no later than May 11 in Trump’s case, which is when they sent a subpoena for all documents with classification markings (I believe the subpoena reflects a grand jury seated on April 27). The subpoena came just over two months after FBI received the NARA referral on February 9. The timing of the Special Counsel appointment pivoted on the fact that Trump announced his his run for President, not the intensity of the investigation.

In fact, Garland might not appoint a Special Counsel if Pence doesn’t formally announce (if even there’s cause to do so).

It’s not at all clear that these investigations should follow a parallel track. But even if they should, Pence has not yet been treated differently than Biden.

If the Former President Gets Top Billing in a Sedition Trial But You Didn’t Bother to Notice …

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There’s a weird passage in a column that Charlie Pierce published today, announcing that,

[M]y patience with Attorney General Merrick Garland and his dilatory pursuit of the former president* and the various thieves and yahoos under his employ is now exhausted.

… Because Garland has …

let the investigation into the crimes of Donald Trump go on long enough that the forces of public reaction could gather sufficient strength to muddy the evidence and deaden the outrage.

It’s this passage: Charlie claims that the “announcement” of a subpoena, which he attributes to Jack Smith, got lost amid the news of the investigation into the classified documents found in President Biden’s possession.

This was a distressing week, a week in which it seemed that a lot of criminal consequence was slipping away. Again. That’s probably unfair, considering Jack Smith, the special counsel Garland put in charge of the investigations into the previous administration*, unloaded a blast of canister fire, dropping subpoenas on people associated with almost every dubious enterprise conducted between 2017 and 2020, even the post-election grift in which the former president* fleeced the rubes for his purported probe into “voting irregularities,” an enterprise with the credibility of OJ Simpson’s search for the real killers. That’s genuine momentum—except that the announcement was lost in the hurly-burly of the Biden documents.

There was no announcement.

What Charlie treats as an “announcement” is a WaPo story, on which Mar-a-Lago Court Reporter Josh Dawsey is the first byline and Devlin Barrett is the second, describing a subpoena sent out on December 9, just three weeks and a Thanksgiving holiday after Jack Smith was appointed and over a month before the story itself. Charlie considers the subpoena “a blast of canister fire,” and hails the “genuine momentum,” but complains that “the announcement was lost in the hurly-burly of the Biden documents.”

Charlie doesn’t consider that this paragraph is itself an admission on his part that stuff can go on — stuff that he considers really impressive — and he might not find out about it for over a month. He says that about a story that describes that, “the Jan. 6 grand jury had accelerated its activities in recent weeks, bringing in a rapid-fire series of witnesses, both high and low level,” but doesn’t describe who those witnesses are (and whose testimony, with the exception of about seven people — Rudy Giuliani, Stephen Miller, Dan Scavino, William Russell, Beau Harrison, and the two Pats, Philbin and Cipollone, has not otherwise been reported). He says that of a story that linked an earlier WaPo story, dated September 16 and so describing developments that preceded Jack Smith’s arrival by two months, that described dozens of subpoenas requesting communications with more than 100 people.

Dozens of subpoenas issued last week show that the Justice Department is seeking vast amounts of information, and communications with more than 100 people, as part of its sprawling inquiry into the origins, fundraising and motives of the effort to block Joe Biden from being certified as president in early 2021.

That’s the investigation, still under Garland, that Charlie calls “dilatory.”

And Charlie says that the same week that a third January 6 sedition trial kicked off by showing Donald Trump’s call on the men standing trial for sedition to “Stand Back and Stand By.”

As Charlie’s statement admits, his is partly a complaint about the press, which was focused on Biden’s legal discomforts rather than more important things, like Trump’s attempted coup.

Of course, Charlie is part of the press.

And Charlie, part of the press, made no mention of Trump’s prominence in DOJ’s Proud Boys opening argument. Charlie wants a compelling trial the likes of the Nuremberg Trials, yet the most important January 6 trial to date tied Trump’s actions directly to the overt acts in this alleged sedition conspiracy, and Charlie made no mention of the fact that Trump’s comments were presented as evidence in a sedition trial.

A huge part of Charlie’s complaint is about the evidence that he can see.

[Nuremburg Prosecutor Robert Jackson] wanted the rule of law to do more than simply demonstrate its strength. He wanted that strength used, firmly and relentlessly, in the pursuit of justice. Garland may be doing the same thing, but there’s damn little evidence of it, and this week, everything seemed to be running in the opposite direction.

It’s not actually clear whether Charlie even knows that Trump’s incitement of the Proud Boys played a central role in the opening argument of a sedition trial, though dozens of reporters covered it, a number in real time. Many of those reporters are exhausted, though exhausted not so much about their perceptions of Garland, but because they’ve given up evenings and weekends for two years to make sure these events get covered.

If the former President gets top billing in a sedition trial but you didn’t bother to notice, does it count as evidence about DOJ investigations?

My January 6 anniversary post last year was about how unknowable January 6 is, particularly for anyone not working full time to know it.

To have something that poses such an obvious risk to American democracy remain so unknowable, so mysterious — to not be able to make sense of the mob that threatens democracy — makes it far more terrifying.

In recent weeks, those of us doing that full time have learned still more about how vast it all is — and how many tools the January 6 Committee withheld from prosecutors six months after the prosecutors had urgent need of them.

In those same recent weeks, two years into this thing, I’ve come to new realizations about how complex this is: it’s not just an investigation into a former President protected by Executive Privilege and at least six people protected by the Speech and Debate clause, but it’s also an investigation in which at least 26 key witnesses or subjects are lawyers protected by Attorney-Client Privilege. I’ve developed new theories about how DOJ — the same AUSAs who’ve been working 24/7 on this case for two years, before and after Jack Smith got involved — aspires to chisel away at those unprecedented protections. I’ve also increasingly seen gaps, both in PACER dockets and subpoenas, where investigative subjects used to be, gaps which sometimes suggest progress that DOJ needs to protect, progress that even those of us following full time might only confirm four months after the fact and only if we happen to be listening in real time when a lawyer blurts something out he shouldn’t have.

Charlie says this was a distressing week.

This was a distressing week, a week in which it seemed that a lot of criminal consequence was slipping away.

It was a distressing week for me, too, in part for the same reasons as it was for everyone else: watching the members of Congress who participated in an insurrection launch their efforts to muddle the truth again, watching the same insurrectionists encourage a coup attempt in Brazil, losing sleep over whether American democracy can be saved.

But it was distressing for another reason: because so many really smart people I respect — and I include Charlie among them — have responded to the unknowability of January 6 not by attempting to grab ahold of something to ensure their own meanderings remain grounded in evidence, but instead by making authoritative assertions about evidence that are, instead, confessions that great swaths of this investigation are proceeding without them noticing.

One major reason we’re all so distressed is because truth is under assault — because Jim Jordan intends to spend the next two years turning Trump’s crimes into victimhood, just as he spent the entirety of Trump’s presidency doing.

But making authoritative claims about evidence without knowledge of the evidence only makes his job easier, in part because it stoops to his level, in part because it magnifies the anxiety.

You don’t respond to an assault on truth by permitting yourself to fill the vacuum created by the unknowability of January 6 with claims that themselves do not present the truth, that ignore key pieces of evidence that — while public — may have gone unnoticed.

Charlie Pierce wants trials the likes of the Nuremberg Trials, which were so powerful because the architects of an authoritarian conspiracy were tied to the events that took place at the crime scenes. And DOJ took a key step in doing that week — a key step in an effort that has been obviously in the works for 18 months, an effort that started on January 4, 2021, when Enrique Tarrio’s phone was seized (his phone, which ties the Proud Boys to other organizers, took over a year to exploit), and took another step on January 7, 2021, when the first Proud Boy who would plead guilty to obstruction was arrested.

And yet Charlie Pierce has seen no evidence of that.

Update: I’ve fixed the January 7 detail: that was a reference to Nicholas Ochs, who was arrested when he arrived back in Hawaii. He and Nicholas DeCarlo were charged with conspiring with each other to obstruct January 6, and they did plan together. But both pled to obstruction, not conspiracy. They were both sentenced to 4 years in prison.

Follow the Money: Merrick Garland Told You So

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My favorite thing about this CNN story providing new details on the Trump investigations that Jack Smith will oversee is the quote from TV lawyer Elie Honing, commenting about how much evidence Smith already had.

“Mueller was starting virtually from scratch, whereas Jack Smith is seemingly integrating on the fly into an active, fast-moving investigation,” said Elie Honig, a former federal prosecutor and senior CNN legal analyst.

Honig, of course, was long one of the worst kind of TV lawyers, who kept insisting there was no investigation into Trump because he hadn’t seen evidence of it (and he also because he hadn’t looked).

Effectively, this CNN article amounts to Honig admitting that he was wrong.

Among the details CNN provides are that there’s not just one prosecutor — Thomas Windom — on the Trump team, there are twenty.

A team of 20 prosecutors investigating January 6 and the effort to overturn the 2020 election are in the process of moving to work under Smith, according to multiple people familiar with the team.

Prosecutors on the Trump side of the January 6 investigation have had the green light to go after Trump for a year, not after Cassidy Hutchinson’s testimony as some liked to suggest.

[T]he other investigative team, looking at efforts to block the transfer of power from Trump to President Joe Biden after the 2020 election, had even a year ago been given the greenlight by the Justice Department to take a case all the way up to Trump, if the evidence leads them there, according to the sources.

CNN reveals an investigation into the finances of the attack, led by JP Cooney, that has also been going on at least a year.

Another top prosecutor, JP Cooney, the former head of public corruption in the DC US Attorney’s Office, is overseeing a significant financial probe that Smith will take on. The probe includes examining the possible misuse of political contributions, according to some of the sources. The DC US Attorney’s Office, before the special counsel’s arrival, had examined potential financial crimes related to the January 6 riot, including possible money laundering and the support of rioters’ hotel stays and bus trips to Washington ahead of January 6.

In recent months, however, the financial investigation has sought information about Trump’s post-election Save America PAC and other funding of people who assisted Trump, according to subpoenas viewed by CNN. The financial investigation picked up steam as DOJ investigators enlisted cooperators months after the 2021 riot, one of the sources said.

The thing is, we long had reason to know that there was a financial component to the investigation. Merrick Garland implied to Sheldon Whitehouse as much on October 28, 2021.

Garland: Senator, I’m very limited as to what I can say–

Whitehouse: I understand that.

Garland: –Because I have a criminal investigation going forward.

Whitehouse: Please tell me it has not been constrained only to be people in the Capitol.

Garland: The investigation is being conducted by the prosecutors in the US Attorney’s Office and by the FBI field office. We have not constrained them in any way.

Whitehouse: Great. And the old doctrine of “follow the money,” which is a well-established principle of prosecution, is alive and well?

Garland: It’s fair to say that all investigative techniques of which you’re familiar and some, maybe, that you’re not familiar with because they post-date your time are all being pursued in this matter.

He said so even more explicitly on January 5.

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

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

And now CNN reveals something else that TV lawyers were sure they’d know if it happened: “DOJ investigators enlisted cooperators months after the 2021 riot.”

Update: I’ve started to have some discussion about financial questions of interest, so thought I’d lay out some that likely have come up:

  • Nick Fuentes got a huge cryptocurrency donation just before the attack; did the donor (who killed himself) know that it’d be used to bring Nazis to the Capitol?
  • Patrick Byrne paid to fly some of the participants in the Big Lie and the December 12 rally from place to place; how closely was this tied to the overall plan to steal the election?
  • Alex Jones had a role in arranging Publix heir Julie Jenkins Fancelli’s funding for much of the rally. Did he do this with knowledge of plans to assault the Capitol?
  • A financial investigation into Sidney Powell has long been public. Even after that, she funded the defense of key witnesses. What were the legal circumstances of this money flow?
  • As the January 6 Committee made clear, Trump was raising money on promises of voting integrity long after he knew he had lost the election. Was that fraud, and did any money raised fraudulently go to pay for the attack on the Capitol?

What If the Special Counsel Is about Scott Perry, not Just Donald Trump?

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When he announced the appointment of a Special Counsel yesterday, Merrick Garland described that “recent developments,” plural, led him to conclude that he should appoint Jack Smith as Special Counsel to oversee the investigations into Donald Trump.

The Department of Justice has long recognized that in certain extraordinary cases, it is in the public interest to appoint a special prosecutor to independently manage an investigation and prosecution.

Based on recent developments, including the former President’s announcement that he is a candidate for President in the next election, and the sitting President’s stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a Special Counsel.

The recent developments he focused on were presidential: Trump’s announcement he’d run again and Joe Biden’s stated plan to run for reelection. But he also described the basis for the appointment not as a conflict (as Republicans and Trump are describing the investigation by a Biden appointee by his chief rival), but as an extraordinary circumstance.

Unsurprisingly, Garland never named Trump as the reason for the appointment. The only time he referenced Trump, he referred to him as the former President. That’s DOJ policy.

When he described the subjects of the January 6 investigation, he included both “any person” but also any “entity” that interfered in the transfer of power.

The first, as described in court filings in the District of Columbia, is the investigation into whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021.

The scope of the January 6 investigation that Smith will oversee is far broader than Trump and will almost certainly lead to the indictment of multiple people in addition to Trump, if it does include Trump — people like Jeffrey Clark, John Eastman, possibly Mark Meadows.

But if we assume that everyone who has had their phone seized in that investigation is a subject of it, then Scott Perry, the Chair of the House Freedom [sic] Caucus, would also be included. Perry was the one who suggested that Trump replace Jeffrey Rosen with Jeffrey Clark so DOJ would endorse Trump’s challenges to the election outcome. He pushed a number of conspiracy theories at the White House and DOJ (including the whack Italian one). Along with Meadows and Rudy Giuliani, Perry was putting together plans for Trump to come to the Capitol on January 6. After one meeting with Perry, Meadows burned some papers.

Perry isn’t even the only one who was closely involved in the plot to steal the election. Jim Jordan, the incoming Chair of the House Judiciary Committee, was closely involved as well and is very close to likely subject Mark Meadows.

Indeed, if you include all the members of Congress who discussed or asked for pardons, the number grows longer, in addition to Perry, including at least Matt Gaetz, Andy Biggs, Louie Gohmert, and Marjorie Taylor Greene. Jordan, Perry, Gaetz, Biggs, Gohmert, and Marge would amount to most of the probable seven person majority in the House.

Marge, as it turns out, is already dreaming up ways to defund this investigation (the means by which she wants to do this, the Holman Rule, probably wouldn’t work; I believe there’s a preauthorized fund from which Special Counsel expenses come from).

To be clear, thus far, Perry is the only one whose actions have overtly been the focus of legal process, when the FBI seized his phone back in August. It’s certainly possible DOJ did so only to get content, such as Signal texts, that implicate someone else, like Clark.

But given how close the majority in Congress is, any prosecution of a Republican member would threaten to disrupt that majority. Which means any investigation into Republican members of Congress would pose a more immediate threat to the current status quo than a Trump prosecution would.

Jack Smith’s background — including a stint heading DOJ’s Public Integrity Division during the period when Congressman Rick Renzi was prosecuted — is more suited for the January 6 investigation than the stolen document one. Including, as it turns out, the difficulties of prosecuting someone protected by the Speech and Debate clause.

Merrick Garland Names War Crimes Prosecutor Jack Smith to Oversee Trump Investigations

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To my mind, the best part of appointing war crimes and public corruption prosecutor Jack Smith as Special Counsel to oversee the twin investigations into Donald Trump is that it will be a cinch, now, to subpoena Ginni Thomas.

Otherwise I have mixed feelings about the decision. I think the letter of DOJ guidelines requires it. But I don’t think it will change how much of a clusterfuck Trump makes of it.

It does have certain other advantages, other than making it easier to subpoena Ginni. It might even make it easy to subpoena Mike Pence.

First, this will make it very easy to refuse Jim Jordan’s demands for information about the investigation.

It will ensure the continuity of any prosecution after 2025, no matter who is elected (neither hypothetical Trump prosecution — the stolen documents or the coup attempt — would be done by then, even if it were indicted on December 15, the earliest possible date for either).

I don’t think this will create much of a delay. The stolen documents case, which is the first that could be prosecuted (assuming the 11th Circuit overturns Judge Aileen Cannon’s special master order) is fairly self-contained, so would only take a day to be briefed into. The coup attempt is far, far more complex, but I think there was no way Trump himself would be indicted before February or March anyway, probably longer.

The jurisdictional boundary is of interest: Anyone who crimed at the Capitol will be prosecuted by DC US Attorney Matthew Graves. Anyone who was not physically present at the Capitol would fall under Smith’s investigation.

It’s unclear where Alex Jones would fit in that schema. Roger Stone, though, would be moved under Smith.

My favorite part of the order appointing Smith is this part:

The language authorizing a Special Counsel to investigate anything that “might arise directly from this investigation” is standard Special Counsel language. It generally covers efforts to obstruct the investigation.

Only, usually, it only appears in the subjunctive, covering matters that might arise, in the future.

This authorizes Smith to investigate things that already have. Which would only be necessary if such matters had already arisen.

The order also authorizes Smith to spin off prosecutions.

Again, that’s not boilerplate. It may suggest Garland has already seen evidence of criminality that could and should be spun off.

Mostly, I think this is an “Eh” decision. It doesn’t change Garland’s role in the process. I don’t think it delays things. I think it carries certain advantages, two of those named Ginni and Jim.

But otherwise, the investigation continues with — as Garland said — urgency.

Update: Overnight I thought of this: Garland said there were recent developments, plural, that led to this decision. One could be the GOP taking over control of Congress. After all, Scott Perry, head of the Freedom Caucus, must be a subject of this investigation. But it’s not outside the realm of possibility that the incoming House Judiciary Committee Chair is too. And depending on the final split in Congress, it’s also not outside the realm of possibility that enough members are under investigation — with Perry, Jim Jordan, Marjorie Taylor Greene, Andy Biggs, Paul Gosar, and Matt Gaetz — that it could, briefly anyway, alter the majority in Congress.

Merrick Garland Hasn’t Done the Specific Thing You Want because DOJ Has Been Busy Doing Things They Have to Do First

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The passage of the election has set off the Merrick Garland whingers again, people who like displaying their ignorance by claiming there has been no sign of progress on the investigations into Trump when (often as not) there were signs of progress that the whingers are ignoring in the last few days.

Yes. It has been almost a week since the close of polls last Tuesday. No. Merrick Garland has not carted Trump away in a paddy wagon yet (nor would the FBI, if and when they ever did arrest him).

Yes. We actually know why Garland hasn’t done so — and it’s not for want of actions that might lead there.

There are still known steps that have to or probably will happen before Trump would be indicted in any of the known criminal investigations into him. For those demanding proof of life from the DOJ investigations into Trump, you need look no further than the public record to find that proof of life. The public record easily explains both what DOJ has been doing in the Trump investigations, and why there is likely to be at least a several month delay before any charges can be brought.

The reason is that DOJ is still pursuing the evidence they would need before charging a former President.

Here’s an update on the various investigations into Trump (I’ve bolded the two appellate deadlines below).

Stolen documents

The reason I’m particularly crabby about the Merrick Garland whinging is because people were accusing DOJ of inaction hours after DOJ’s most recent step in the investigation into Trump’s stolen documents. On November 3, for example, DOJ compelled Kash Patel to testify before a grand jury under grant of use immunity, testimony that would be necessary, one way or another, before charging Trump, because DOJ would need to rule out or at least account for any claim that Trump mass-declassified the documents he stole.

DOJ continues to fight to ensure it can keep the documents it seized on August 8, and to be permitted to use the unclassified documents it seized in the investigation. The most recent filings in that fight, as I wrote up here, were filings about the disputes Trump and DOJ have about the seized documents, which Special Master Raymond Dearie will use to rule on those designations by December 16. After Dearie does that, Trump will dispute some of Dearie’s decisions, and Judge Aileen Cannon will make her own decision de novo. She has not set her own deadline for how long that decision would take. But if the Special Master process is the means by which DOJ guarantees its access to the evidence against Trump, it won’t be resolved until after the New Year, even assuming DOJ won’t have to appeal some ridiculous Cannon ruling.

Short of doing a search on another Trump property, preferably in Virginia but possibly in New Jersey or New York, this case cannot be charged until DOJ can present documents the custody of which it has guaranteed to a grand jury. DOJ has to make sure they have the evidence they would use to charge Trump (though adjudicating these disputes now might make any prosecution quicker on the back end).

That said, DOJ may guarantee custody of the documents it seized in August more quickly, via its challenge to Cannon’s decision to appoint a Special Master in the first place, in the 11th Circuit. Trump’s response to that appeal, which he submitted on November 10, seemed desultory, as if Chris Kice knows they will lose this appeal (indeed, that seems likely given that both the 11th Circuit and SCOTUS have already declined to see the case in the way Trump would prefer). DOJ’s response is due on November 17. Because of the way the 11th Circuit has scheduled this appeal, the panel reviewing it will be prepared for oral argument on rather quick turnaround. Even so, DOJ is not likely to guarantee access to these documents via any favorable 11th Circuit decision (which Trump will undoubtedly appeal) before December 1, and it would take about a week to present any case to the grand jury. So the very earliest that DOJ could indict this case would be early- to mid- December.

Update: In a filing submitted on November 8 but only unsealed today, DOJ asked Raymond Dearie to recommend that Judge Cannon lift the injunction on the 2,794 out of 2,916 documents over which Trump is making no privilege claim.

Update: The 11th Circuit has set a hearing for November 22, so DOJ may actually have access to those files sooner than December 1, though not all that sooner.

January 6 investigation(s)

There are at least four ways that Trump might be charged in conjunction with January 6:

  • For asking Mike Pence to illegally overturn legal votes and then threatening him, including with violence, when he refused
  • For setting up fake electors to contest the election
  • For fundraising off false claims of voter fraud and using the money to benefit those who helped the attack
  • Via people like Roger Stone, in a networked conspiracy with those who attacked the Capitol

DOJ sent out subpoenas in the first three prongs of this just before the pre-election pause. This post summarizes who was included.

These are all (and have been) intersecting conspiracies (this CNN story describes how many areas the subpoenas cover). For example, since January, it has been clear that the top-down investigation most visible in the January 6 Committee work and the crime-scene investigation visible in ongoing prosecutions had converged on the pressure both Trump and the mob focused on Mike Pence. It’s unclear how DOJ will treat the intersection of these investigations, and whether DOJ will wait for all prongs to converge before charging.

The Mike Pence prong is where DOJ made its most obvious progress during the pre-election pause. On October 6, Mike Pence Counsel Greg Jacob testified before a grand jury. October 14, Pence’s Chief of Staff Marc Short testified. Also in October, DOJ asked Beryl Howell to compel Trump’s White House Counsels Pat Cipollone and Pat Philbin as well. I’m not aware of the status of appeals on that (or whether Judge Howell compelled testimony from the two Pats in the meantime). We know that all four men would describe the debates over the extent of Pence’s authority to reject lawful electors, including the recognition from people like John Eastman that their legal theories were unsupported by law. The two Pats would also testify about Trump’s reaction to the mob, as he watched the attack on the Capitol from inside the White House dining room, including the tweet that specifically targeted Pence. These are all very credible first-hand witnesses to Trump’s words and actions both in advance of and during the attack. Obtaining their testimony would be necessary before charging a former President. But DOJ’s efforts (and success) at obtaining their testimony reflects the seriousness of the investigation.

The publication of Pence’s book, which relays his version about exchanges with Trump, would seem to invite a demand from DOJ that he testify about the same topics to the grand jury as well, particularly given the way he spun the story in ways that might help Trump. If I were a prosecutor contemplating charging the former President, I would want that potentially exculpatory (to Trump) locked in under oath. And any claim from Pence that he can’t share these details because of Executive Privilege seem ridiculous in the face of a book tour. But if DOJ decided they needed Pence’s testimony it might result in delay.

It’s unclear how much progress DOJ has made on the subpoenas issued before the pause. None of those subpoenaed have been spotted at grand jury appearances at Prettyman (though that may change this week). In particular, there are a bunch of senior Republicans involved in the fake elector plots from whom I expect DOJ to try to lock in testimony.

But two things may cause delay in any case. First, as I wrote here, subpoenas (generally served on people who might be expected to comply) are easy, because they require the person who received the subpoena to do the search for the subpoenaed materials. But it takes time to exploit phones, all the more so if the phone was seized without some way to open it. Here’s how long the communications of various high profile people have taken to exploit:

This is not indolence. It is physics and due process: it just takes time to crack phones, to filter the content, and to scope what is responsive to a warrant.

Among the steps taken before the pause, in early September, DOJ seized the phones of Boris Epshteyn and Mike Roman. While it’s possible DOJ will be able to accelerate the process of exploiting these phones (they have done so with Oath Keeper lawyer Kellye SoRelle’s phone, as last week DOJ submitted material that had gone through a filter review from the phone seized from her in early September in the sedition case), you should not assume they can fully exploit these phones (with whatever Signal content is on them) in less than six months, so March. In Epshteyn’s case, his claims to be playing a legal role in the stolen document case may cause further delays because of a filter review.

As someone involved in vote fraud efforts, Latinos for Trump, and the Oath Keepers, SoRelle is one of the pivots from the White House and Willard focused activities to the crime scene. DOJ seems closer to moving against others at that pivot point. Roger Stone, for example, has been mentioned over and over in the Oath Keeper trial. But that’s probably several months off. Alex Jones sidekick Owen Shroyer has been given until the end of the month to decide whether he wants to plead or take his chances on further charges. And I expect DOJ will wait until the verdict at least in the Oath Keeper case (they might not even get through all the defense witnesses this week), and possibly in the more complex Proud Boy case (which would be February barring likely unforeseen changes), before going too much further.

There’s one more thing that may delay any more spectacular charges in January 6. The oral argument for DOJ’s appeal of Carl Nichols’ outlier decision on the application of 18 USC 1512(c)(2) to the insurrection won’t happen until December 12. It drew a pretty unfavorable panel for that hearing (listed as Joseph Fischer here): Trump appointees Greg Katsas (like Nichols, a former Clarence Thomas clerk, who also worked as Deputy White House Counsel in 2017) and Justin Walker (who is close to Mitch McConnell), and Biden appointee Florence Pan (who presided over January 6 cases before being promoted to the Circuit Court). It’s possible, but by no means certain, that the Trump appointees will do something nutty, in which case, DOJ would surely appeal first to the full DC Circuit panel; if they overturn Nichols, Garret Miller and the other January 6 defendants who got their obstruction charges thrown out will presumably appeal to SCOTUS.

Nichols’ decision, which ruled that January 6 did count as an official proceeding but ruled that any obstruction had to involve some kind of documents, probably wouldn’t stall any charges relating to the fake electors, which were after all about using fraudulent documents to overturn the vote certification. But it might lead DOJ to pause for other charges until the legal application is unquestioned. 18 USC 1512 is the charge on which DOJ has built its set of interlocking conspiracy charges, and so this decision is pretty important going forward.

Unlike the stolen document case, I can’t give you a date that would be the soonest possible date to expect indictments. But for a variety of reasons laid out here, unless DOJ were to indict on charges specifically focused on Mike Pence (with the possibility of superseding later), it probably would not be until March or April at the earliest.

Georgia investigation

The Georgia investigation, like the Federal one, was paused for a period leading up to the election (it’s unclear whether the run-off between Raphael Warnock and Herschel Walker will further delay things). But during the pre-election period, DA Fani Willis won decisions for testimony from Lindsey Graham and Newt Gingrich. Those grand jury appearances were scheduled for the end of this month (though may be pushed back). In any case, Willis has indicated that any charges from this investigation may come before the end of the year.

To be clear, none of this is a guarantee that DOJ (or Willis) will indict Trump and/or his closest aides. It is, however, a summary of the reasons that are public that all these investigations have been taking steps that would have to happen before they could charge Trump, and that most have additional steps that would have to happen before prosecutors could even make a prosecutorial decision.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Garland responded by saying that,

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

Olsen added,

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

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

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

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

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

The Redacted Mar-a-Lago Affidavit DOJ Should Submit

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As you may know, DOJ is ordered by Magistrate Judge Bruce Reinhart to submit a “suggested” redacted version of the warrant affidavit for the Mar-a-Lago search executed on August 8, 2022.

The federal magistrate judge who authorized the warrant to search Donald Trump’s Mar-a-Lago estate emphasized Monday that he “carefully reviewed” the FBI’s sworn evidence before signing off and considers the facts contained in an accompanying affidavit to be “reliable.”

Magistrate Judge Bruce Reinhart offered his assessment in a 13-page order memorializing his decision to consider whether to unseal portions of the affidavit, which describe the evidence the bureau relied on to justify the search of the former president’s home.

“I was — and am — satisfied that the facts sworn by the affiant are reliable,” Reinhart said in the order.

Reinhart ruled last week that he would consider unsealing portions of the affidavit after conferring with the Justice Department and determining whether proposed redactions would be sufficient to protect the ongoing criminal investigation connected to the search. But in his order, Reinhart emphasized that he may ultimately agree with prosecutors that any redactions would be so extensive that they would render the document useless.

The last sentence of that quote is the key. Unless DOJ is going to capitulate to the clicks and reads voyeurism of the overly exuberant political press, nothing whatsoever should be released unless and until charges are filed against some defendant, whether it be Trump or otherwise. Why? Because that it how it is done, and properly so.

Reinhart has received abuse and threats. Is his willingness to even entertain a “redacted version” sound under such threat? His decision will yield the answer to that question.

In the meantime, I have a proposed example of what DOJ should submit to Reinhart. Yes, this example is from CAND, not SDFL, but it is exactly what ought be handed over to Reinhart. And if Reinhart grants any “redacted version”, DOJ should appeal immediately and fully. Leave the affidavit sealed. The voyeuristic public, and press, thinks they have an interest because Trump. But they really do not. Do it the right and normal way.

Merrick Garland Preaches to an Overseas Audience

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Alexander Vindman thanks Attorney General Garland

When Merrick Garland gave his brief press statement yesterday about the search of Mar-a-Lago, he had various audiences in mind. One was Donald Trump and his defenders, calling their bluff by announcing that the DOJ was moving to unseal the search warrant and list of items seized. Another was his own DOJ employees, to let them know that he had their backs and would support them when the rightwing attacked them. But as I listened to him, I thought that perhaps the most critical audience were the leaders of nations all around the globe — and especially the heads of their intelligence services. When hours later the story broke that some of the documents the DOJ were seeking were nuclear related, I dropped the mental “perhaps”. To build on one of Marcy’s previous posts, let me add that this is a huge foreign policy story, which is largely missing from the current discussion in the media.

Think back to the beginning of the Trump administration. On May 15, 2017, a disturbing story hit the news:

President Donald Trump disclosed highly classified information to Russia’s foreign minister about a planned Islamic State operation, two U.S. officials said on Monday, plunging the White House into another controversy just months into Trump’s short tenure in office.

The intelligence . . . was supplied by a U.S. ally in the fight against the militant group, both officials with knowledge of the situation said.

H.R. McMaster categorically denied it, and as the story unfolded over time, McMaster was lying through his teeth. The unnamed ally was later revealed to be Israel, who had a mole inside an ISIS cell. And Trump blithely blew the cover of that Israeli asset by bragging to Lavrov.

Shortly after this meeting (at which Trump also bragged about just having fired James Comey), US intelligence officials made a bold move. From CNN:

In a previously undisclosed secret mission in 2017, the United States successfully extracted from Russia one of its highest-level covert sources inside the Russian government, multiple Trump administration officials with direct knowledge told CNN.

A person directly involved in the discussions said that the removal of the Russian was driven, in part, by concerns that President Donald Trump and his administration repeatedly mishandled classified intelligence and could contribute to exposing the covert source as a spy.

The decision to carry out the extraction occurred soon after a May 2017 meeting in the Oval Office in which Trump discussed highly classified intelligence with Russian Foreign Minister Sergey Lavrov and then-Russian Ambassador to the US Sergey Kislyak. The intelligence, concerning ISIS in Syria, had been provided by Israel.

This was the opening act of the Trump presidency. From the very beginning, intelligence officers worried about how Trump handled classified information. Our intelligence officers worried, and so did the intelligence officers of our allies, as they asked themselves some version of the question “Will Trump say something or do something that will get us killed?” In a completely different way, so did the intelligence officers of our adversaries. If Trump were to rashly reveal something he learned about the capabilities of our adversaries, it could have disastrous consequences for those countries and their leaders, as the reaction to the revelation could easily spiral out of control in unforeseeable ways.

And the damage was done.

A lot of the work of intelligence services is, if not cooperative, then transactional. “I have some information you would like,” says an ally to us, “and we’ll pass it along to you in exchange for something we need.” That favor might be us passing information back to them on another subject, or supporting some foreign policy objective. That favor might be immediate, or something later. Among the Five Eyes nations (US, UK, Australia, New Zealand, and Canada) and the major NATO allies, that relationship was formalized into regular practice.

But now, with Trump’s first foray into intelligence matters, all these countries worried about passing things along that under previous administration they never would have hesitated to share. With good reason.

Fast forward four years, past all the bizarre meetings with Russia where notes were not taken, past the stunning press conference in Helsinki where Trump declared he trusted Putin’s word over the word of his own intelligence services, past all the coddling of authoritarians, past all the threats to withdraw from NATO, past all the insults to our allies around the world . . . Fast forward past all of that, and there came November 2020. On the Sunday after the election, when Biden was declared the president-elect and foreign leaders began to offer their congratulations, the New York Times discussed the deeper reactions of European leaders to Biden’s election:

David O’Sullivan, former European Union ambassador to the United States, said he looked forward to a renewal of American leadership — if not the hegemony of the past, then at least “America’s role as the convening nation” for multilateral initiatives and institutions.

But the world has changed, and so has the United States, where the Biden victory was relatively narrow and not an obvious repudiation of Mr. Trump’s policies. A fundamental trust has been broken, and many European diplomats and experts believe that U.S. foreign policy is no longer bipartisan, so is no longer reliable.

Biden, with his decades of experience with foreign policy, knew this was true, which meant that two of his most critical appointments would be his Secretary of State and his CIA Director. For State, he chose Anthony Blinken, who had served in the State Department under President Clinton and on the White House national security staff in both the Clinton and Obama administrations, and for CIA he chose William Burns.

Burns was not a product of the intelligence community. He was a career State Department diplomat, but not just any diplomat. From 2001 to 2005, as the US reacted to the attacks on 9/11, Burns was the Assistant Secretary of State for Near Eastern Affairs — that is, the Middle East. From 2005 until 2008, as Vladimir Putin tightened his hold of the office of President of Russia following the chaos of the Yeltsin era, Burns was the US Ambassador to Russia. From 2008 to 2011, Burns held the position of Undersecretary of State for Political Affairs – the #4 position at State and the highest office reserved for a career foreign service officer. By the end of his 32 year tenure, he held the rank of Career Ambassador – the State Department’s equivalent to a four-star general.

Beyond running the CIA, the new director had to rebuild all those broken international relationships and restore that “fundamental trust” between the US and the world. That’s what made Burns such a great choice.

When the National Archives discovered classified information had not been turned over when Trump left office, they brought the news to the DOJ. I have this vision of Garland swallowing hard, and then arranging a meeting with Burns, DNI Victoria Nuland Avril Haines [corrected], and the other US intelligence agency heads to let them know what Trump had done. I can see the shock on their faces, followed by the “of course he did” sighs of resignation. Then the wheels start turning as each tries to figure out how this affects their agency.

But I also imagine Burns, either in the meeting or in a private conversation, telling Garland one thing: “I have no doubts about your department and your passion for justice. If there is anything I can do to assist, just let me know. I won’t press you to share things with me that you shouldn’t share — you do your job and I’ll do mine. But there’s one thing you need to know. You may already know it, but let me reinforce it. The. Whole. World. Is. Watching. Our allies are just beginning to trust us again, and how you handle this will determine whether that continues or is blown to bits. From a foreign policy perspective, especially on the intelligence side, we *have* to get this right.” That’s total fantasy on my part, but I’m reasonably confident that something like that was communicated, one way or another.

Two days ago, when the search was first revealed, Garry Kasparov tweeted, “For those who live where the law exists only to serve the powerful and oppress the rest–as I did in the USSR and Putin’s Russia–the dictum that no one is above the law is nearly awe-inspiring.”

The American legal community is watching this all unfold very carefully, with an eye toward all the minutia of the various legal questions at issue. The US political folks on every side are watching this carefully, with an eye toward the midterms and 2024. US media organizations are watching this carefully, trying to figure out how to cover the story. Ordinary Americans are watching this carefully, for all kinds of reasons.

And beyond our borders, the whole world is watching, as that Kasparov tweet indicates. It shows that Garland is reaching that worldwide audience, even before the word “nuclear” became part of the story.

In his long-ago testimony before Congress about that “perfect phone call,” Alexander Vindman captured in three words the essence of US foreign policy, and he repeated them as a hashtag in that tweet above. In the actions of the DOJ this past week, Garland is giving Vindman a big “Amen.”

Russia, if you’re listening, listen to Vindman. #HereRightMatters indeed.

I know we’ve got a fair chunk of readers outside the US, and I’d love to hear in the comments what you all are seeing in the coverage your countries.