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Robert Hur Snooped Through Joe Biden’s Diaries after White House Warned It Would Be Unprecedented

Much of the press focus (Politico, NYT, WaPo) on the correspondence between Joe Biden’s lawyers and DOJ has focused on Biden’s complaints about Robert Hur’s old geezer comments.

But a September 2023 letter (published by WaPo) regarding the way Robert Hur snooped through Biden’s diaries, which Hur called notebooks to excuse his own prurience, is actually far more troubling.

The letter asserts, then substantiates, a claim that, “at no time in the last thirty years has the Government, including the Department, viewed as actionable the possibility of classified information in the individual writings of a former President or Vice President.”

It describes what happened with Biden’s diaries:

  • January 20, 2023: Hur seizes Biden’s personal diaries and notebooks
  • February 27, 2023: Stuart Delery writes letter noting that DOJ, courts, and Congress have recognized the unique status of presidential and vice-presidential writings
  • Hur reviews diaries in their entirety without prior review by the White House Counsel’s Office
  • Hur sends selections for “classification review” by the Intelligence Community
  • October 8-9, 2023: Hur questions President Biden in the context of a criminal investigation about these materials

It then goes through the record, showing how the government found classified information in not just Reagan’s, but also Poppy Bush’s diaries, as part of Iran-Contra, but didn’t do anything about the diaries themselves outside the context of the focus on Iran-Contra.

It then goes through the publication history of Jimmy Carter’s diaries and memoirs from George W. Bush, Dick Cheney, Barack Obama, and Mike Pence to suggest they had used memorializations to write books that had classified information in them when first submitted to National Security Council for discretionary review.

The description of what happened with Pence’s memoir is most telling. In the very same weeks when Hur was blowing off a letter from Stuart Delery telling him no one had done this before, DOJ’s investigation of Mike Pence made no apparent move to do the same with any notes he used to write his memoir.

Former Vice President Mike Pence published his own memoir on November 15, 2022. Mike Pence, SO HELP ME GOD (2022). Even though Mr. Pence, as a Vice President, had not signed any agreement requiring pre-clearance review, he voluntarily submitted his manuscript to the NSC prior to publication for review for classified information.

Emmet Flood of Williams & Connolly submitted the manuscript to the NSC in June 2022. Ryan Cole, an Indiana writer, was copied on correspondence. We are unaware of whether these two individuals possessed security clearances at the time, or whether draft manuscripts were handled in accordance with security protocols for classified information, but the manuscript was not sent to the NSC under the requirements for transmitting classified materials.

The NSC review resulted in a number of proposed redactions of presumably classified information, which Vice President Pence and his team accepted to the manuscript before it was published.

Two months after the publication date, Vice President Pence’s attorneys discovered classified government documents in his home in Indiana, and the National Archives was notified two days later. Katherine Faulders et al., FBI finds Another Classified Document in Search of Former Vice President Mike Pence’s Indiana home, ABC NEWS (Feb. 10, 2023). A consent search of the home was conducted by Federal Bureau of Investigation agents on February 10, 2023, during which an additional classified document was found and “six additional pages” were also seized. Id. It is unclear the nature of the additional pages. We do not know whether the agents searched for drafts of the manuscript that the NSC had determined contained material that needed to be redacted.

But one thing is clear: the manuscript prepared by Mr. Pence with the help of Mr. Cole and Mr. Flood, which presumably also was reviewed by the publishers at Simon & Schuster, contained material that the NSC required to be redacted. Yet, even including the later search for classified documents, we know of no law enforcement inquiry into this writing.

Hur might retort that Trump’s notes got seized in 2022, along with marked classified documents and a whole shit-ton of other documents that belong to the archives under the Presidential Records Act.

But there’s no public hint that Jack Smith assessed those for criminal exposure. There’s just one document charged against Trump, in any case, that has neither date nor classified markings, such that it might be a note.

There’s an unstated reason why Hur’s obstinance about treating Biden’s diaries differently than other prosecutors before him: because when he was making the decision to snoop through all of Biden’s diaries, Biden was under investigation for a crime that was never going to get charged, but his son was under investigation for crimes that — under Hur’s former colleagues and subordinates in the Maryland US Attorney’s Office — did end up getting charged, probably only because one of them reneged on a diversion and plea deal because an FBI informant empowered by Bill Barr attempted to frame Biden and his son. Hur’s descriptions of Biden’s diaries, which he describes to “include[] gut-wrenching passages about his son’s death and other highly personal material,” make it pretty clear they include information that could be detrimental to Hunter. In fact, it’s not yet clear whether DOJ has returned Biden’s diaries, or whether they’re still treating him differently, even as Hur’s former subordinates use pictures of sawdust to try to convict Hunter Biden.

It’s really hard to treat Hur’s decision to treat Biden differently as anything else but an attempt to snoop through Biden’s diaries in search of other dirt.

And he did that in spite of fairly compelling arguments that he was doing something unprecedented.

Update: Bob Bauer wrote a Lawfare piece debunking some claims made by Ben Wittes that gets at the diaries distinction.

Dan Scavino, Alone with Trump, Had Access to the Attempted Murder Weapon

Since DC District unsealed Jack Smith’s warrant to obtain Trump’s Twitter account, I have described that one of the most important things prosecutors were seeking was attribution: to learn, before conducting an Executive Privilege-waived interview with Dan Scavino, whether Trump or Scavino wielded the murder weapon, Trump’s Twitter account, that almost got Mike Pence killed three years ago.

Donald Trump nearly killed his Vice President by tweet — the tweet he sent at 2:24PM on January 6, 2021.

111. At 2:24 p.m., after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

112. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.

113. At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!”

114. The Defendant repeatedly refused to approve a message directing rioters to leave the Capitol, as urged by his most senior advisors-including the White House Counsel, a Deputy White House Counsel, the Chief of Staff, a Deputy Chief of Staff, and a Senior Advisor.

As the indictment tells it, at the time Trump sent his potentially lethal tweet, inciting the mob bearing down on Mike Pence, Pence’s spouse, and daughter, Donald Trump was alone in his dining room with the murder weapon: an unknown phone, and his Twitter account.

But when DOJ served a warrant on Twitter for Trump’s Twitter account on January 17, they couldn’t be sure who was holding the murder weapon. They also wouldn’t know whether triggering the murder weapon was coordinated with other events.

That explains why, as Thomas Windom described in a February 9 hearing, metadata from Trump’s Twitter account showing any other account associated with his own may have been just as important for the investigation as any DMs obtained with the warrant.

MR. HOLTZBLATT: Well, Your Honor, we don’t — the issue, Your Honor — there isn’t a category of “associated account information”; that’s not information that Twitter stores.

What we are doing right now is manually attempting to ascertain links between accounts. But the ascertainment of links between accounts on the basis of machine, cookie, IP address, email address, or other account or device identifier is not information that Twitter possesses, it would be information that Twitter needs to create. So that’s the reason why we had not previously produced it because it’s not a category of information that we actually possess.

[snip]

MR. WINDOM: It is, as explained more fully in the warrant — but for these purposes, it is a useful tool in identifying what other accounts are being used by the same user or by the same device that has access to the account is oftentimes in any number of cases, user attribution is important. And if there are other accounts that a user is using, that is very important to the government’s investigation.

[snip]

MR. HOLTZBLATT: That’s right. If the records — if the linkage between accounts, which is what we understand this category to be referring to, is not itself a piece of information that we keep, then it’s not a business record that we would ordinarily produce.

What I understand the government to be asking is for us to analyze our data, as opposed to produce existing data. And we are trying to work with the government in that respect, but that is the reason that it is not something that — that is a different category of information. [my emphasis]

By that point, DOJ would have had Cassidy Hutchinson’s testimony describing what she saw sitting outside Trump’s dining room door (and once, going in to pass off Mark Meadows’ phone). They would have had two grand jury appearances from the two Pats, Cipollone and Philbin, the White House Counsel and Deputy Counsel described in the passage. They would have had at least one interview with Eric Herschmann — the Senior Advisor trying to calm him down.

They did not yet have privilege waived testimony from the Chief of Staff — Mark Meadows — or the Deputy Chief of Staff — Dan Scavino.

And Dan Scavino was the most likely other person to know about that near murder by tweet, because Dan Scavino was in his position, the Deputy Chief of Staff, first and foremost because he had masterminded Trump’s own mastery of Twitter going back to 2016.

So one thing DOJ needed to know before they conducted an interview that took place after Beryl Howell rejected yet another frivolous Executive Privilege claim in March was how Dan Scavino accessed Trump’s Twitter account when he did, from what device.

Who else had access to Trump’s Twitter account, one part of the murder weapon?

ABC News reported details from several of the interviews that took place after Jack Smith got that Twitter warrant, including extensive details about what Scavino told prosecutors. Sure enough, he claimed that he had nothing to do with the Tweet that almost got Pence killed — that instead, he had left Trump alone with the murder weapon. He claimed — as the indictment made it clear he must have — that he wasn’t in the room.

According to what sources said Scavino told Smith’s team, Trump was “very angry” that day — not angry at what his supporters were doing to a pillar of American democracy, but steaming that the election was allegedly stolen from him and his supporters, who were “angry on his behalf.” Scavino described it all as “very unsettling,” sources said.

At times, Trump just sat silently at the head of the table, with his arms folded and his eyes locked on the TV, Scavino recounted, sources said.

After unsuccessfully trying for up to 20 minutes to persuade Trump to release some sort of calming statement, Scavino and others walked out of the dining room, leaving Trump alone, sources said. That’s when, according to sources, Trump posted a message on his Twitter account saying that Pence “didn’t have the courage to do what should have been done.”

Trump’s aides told investigators they were shocked by the post. Aside from Trump, Scavino was the only other person with access to Trump’s Twitter account, and he was often the one actually posting messages to it, so when the message about Pence popped up, Cipollone and another White House attorney raced to find Scavino, demanding to know why he would post that in the midst of such a precarious situation, sources said.

Scavino said he was as blindsided by the post as they were, insisting to them, “I didn’t do it,” according to the sources. [my emphasis]

Why would Pat Cipollone confront Scavino about the Tweet if “Scavino and others walked out of the dining room” — implicitly, walked out together — “leaving Trump alone”? Cipollone would only confront Scavino if he had believed that Scavino were still there with Trump, as his testimony describes he had been until just before Trump sent the Tweet.

The warrant on Twitter, which would have shown whether it is really true that Scavino was the only other person with access to Trump’s Twitter account, is not the only way Jack Smith tested this claim, knew the answer to this claim before interviewing Scavino.

As an expert witness notice revealed last month, Smith will call a witness at Trump’s trial to describe what they found on Trump’s White House phone and that of one other person — which might be Scavino, Nick Luna (whose testimony is also described in detail in the ABC piece), or one of several other people. That witness will explain when Trump’s phone was unlocked and using Twitter on January 6.

Expert 3 has knowledge, skill, experience, training, and education beyond the ordinary lay person regarding the analysis of cellular phone data, including the use of Twitter and other applications on cell phones. The Government expects that Expert 3 will testify that he/she: (1) extracted and processed data from the White House cell phones used by the defendant and one other individual (Individual 1); (2) reviewed and analyzed data on the defendant’s phone and on Individual 1’s phone, including analyzing images found on the phones and websites visited; (3) determined the usage of these phones throughout the post-election period, including on and around January 6, 2021; and (4) specifically identified the periods of time during which the defendant’s phone was unlocked and the Twitter application was open on January 6.

So whether it is true that Scavino was blindsided by the Tweet, as he told Jack Smith he told Cipollone, Jack Smith has Scavino’s testimony that he wasn’t present (again, as I said he must), Cipollone’s testimony that Scavino said he wasn’t present, and metadata consistent with Trump sending the Tweet himself.

As you read the rest of the ABC piece, keep two things in mind. This leaked testimony concentrates on other aspects of the claims made to Jack Smith about how Twitter was used that day, such as this description of Luna’s testimony, describing that he warned Trump before the then-President sent a Tweet making him look “culpable” the day of the attack.

According to the sources, shortly before 6 p.m. on Jan. 6, Trump showed Luna a draft of a Twitter message he was thinking about posting: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously and viciously stripped away from great patriots. … Remember this day for forever!” it read.

The message echoed what Trump had allegedly been saying privately all day.

Sources said Luna told Trump that it made him sound “culpable” for the violence, perhaps even as if he may have somehow been involved in “directing” it, sources said.

Still, at 6:01 p.m., Trump posted the message anyway.

That testimony — that Luna warned Trump the Tweet would make him look like he was responsible for the violence — will only strengthen the extent to which this Tweet was already going to be used to prove that Trump ratified the violence, effectively showing that Trump remained in a conspiracy with those who violently attacked the Capitol even after watching them do so.

Which brings me to the second point. Multiple people who gave this testimony — and probably the person or persons who shared it with ABC — claim to believe that they witnessed that Trump almost murdered his Vice President, someone who had been just as (or in Scavino’s case, almost as) loyal as they had been.

Again, there has to be a bunch of metadata that is consistent with the stories told to Jack Smith, so it’s not so much I doubt Scavino’s claim that he was not in the room when that Tweet was sent out. It’s that this testimony came from people who chose to stick around — some of whom, including Scavino, continue to stick around — knowing that if Trump ever turns on them he wouldn’t stop short of using his mob to get them killed.

It Was Donald Trump, in the Dining Room, with the Twitter Account

In spite of the fact that Jack Smith recognizes Trump’s interlocutory appeals of absolute immunity and double jeopardy will stay proceedings, as promised, his team nevertheless met a preexisting deadline yesterday: To provide expert notice.

Two of the notices describe how DOJ will show that the mob moved to the Capitol after Trump told them to.

The demonstration, and probably even the experts, are a version of something shown in a great number of January 6 trials already.

The third expert, however, has generated a great deal of attention. That expert will describe what two White House phones show about the actions Trump — and possibly another person, Individual 1 — took with those phones.

Expert 3 has knowledge, skill, experience, training, and education beyond the ordinary lay person regarding the analysis of cellular phone data, including the use of Twitter and other applications on cell phones. The Government expects that Expert 3 will testify that he/she: (1) extracted and processed data from the White House cell phones used by the defendant and one other individual (Individual 1); (2) reviewed and analyzed data on the defendant’s phone and on Individual 1’s phone, including analyzing images found on the phones and websites visited; (3) determined the usage of these phones throughout the post-election period, including on and around January 6, 2021; and (4) specifically identified the periods of time during which the defendant’s phone was unlocked and the Twitter application was open on January 6.

I’m particularly interested in the identity of Individual 1. Johnny McEntee told the January 6 Committee that Trump sometimes used his phone (albeit while traveling); the stolen documents indictment shows that he also used Molly Michael’s phone. Dan Scavino had access to Trump’s Twitter account.

But I’m not at all surprised by the fourth bullet point: The focus on when the phone was unlocked and open to Twitter on January 6.

It’s the counterpart of what I laid out in this post — and will undoubtedly be mirrored by the search returns from Trump’s Twitter account.

That post explained that the metadata involving attribution that Jack Smith’s team obtained from Twitter was probably at least as important as any DMs Trump received (and they only obtained around 32 DMs involving Trump’s account, what prosecutors called a “minuscule proportion of the total production”), because prosecutors would need to attribute the Tweet that almost got Mike Pence killed.

Donald Trump nearly killed his Vice President by tweet — the tweet he sent at 2:24PM on January 6, 2021.

111. At 2:24 p.m., after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

112. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.

113. At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!”

114. The Defendant repeatedly refused to approve a message directing rioters to leave the Capitol, as urged by his most senior advisors-including the White House Counsel, a Deputy White House Counsel, the Chief of Staff, a Deputy Chief of Staff, and a Senior Advisor.

As the indictment tells it, at the time Trump sent his potentially lethal tweet, inciting the mob bearing down on Mike Pence, Pence’s spouse, and daughter, Donald Trump was alone in his dining room with the murder weapon: an unknown phone, and his Twitter account.

But when DOJ served a warrant on Twitter for Trump’s Twitter account on January 17, they couldn’t be sure who was holding the murder weapon. They also wouldn’t know whether triggering the murder weapon was coordinated with other events.

[snip]

[O]ne thing DOJ needed to know before they conducted an interview that took place after Beryl Howell rejected yet another frivolous Executive Privilege claim in March was how Dan Scavino accessed Trump’s Twitter account when he did, from what device.

Who else had access to Trump’s Twitter account, one part of the murder weapon?

When DOJ asked Twitter to go back and figure out which other accounts shared IP addresses, cookies, or other device identifier with Trump’s Twitter account, they were asking for a list of other people (or at least clues to identify those people) who might be holding that murder weapon on January 6, Trump’s Twitter account, instead of Donald Trump.

Indeed, Thomas Windom said as much: “user attribution is important.”

What Jack Smith plans to do with the other evidence — what images the two phones had on them and what websites they visited — may actually be more interesting. After all, we know far less about the December 19 Tweet that kicked off the entire insurrection than we do the Tweet that almost got Trump’s Vice President killed. Somehow Trump’s Twitter account got the data from Peter Navarro that Trump’s account then tweeted out, announcing the January 6 rally. This expert testimony will be part of how prosecutors describe what happened.

But as to the Tweet that almost got Mike Pence killed? We know that. It was Donald Trump, alone in the dining room, with the lethal Twitter account.

Judge Rules Trump Had the Purpose of Inciting Insurrection on January 6

Thus far, I haven’t engaged with the lawsuits attempting to keep Trump off the ballot under the Fourteenth Amendment. I think people absolutely have the right to make the case Trump’s actions on January 6 disqualify him from being President. But the only decisions that will matter on this front are what various Supreme Courts have to say and whether the Republican Party chooses to nominate Trump notwithstanding the risk he’ll be disqualified (to say nothing of whether Trump is disqualified in one of the six states that will really decide the election).

But Colorado Judge Sarah Wallace’s opinion finding that Trump did engage in incitement, but can’t be disqualified because the President is not clearly an “officer” under the Fourteenth Amendment, is worth reading.

The Court concludes, based on its findings of fact and the applicable law detailed above, that Trump incited an insurrection on January 6, 2021 and therefore “engaged” in insurrection within the meaning of Section Three of the Fourteenth Amendment. First, the Court concludes that Trump acted with the specific intent to disrupt the Electoral College certification of President Biden’s electoral victory through unlawful means; specifically, by using unlawful force and violence. Next, the Court concludes that the language Trump employed was likely to produce such lawlessness.

[snip]

The Court concludes that Trump acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification. Trump cultivated a culture that embraced political violence through his consistent endorsement of the same. He responded to growing threats of violence and intimidation in the lead-up to the certification by amplifying his false claims of election fraud. He convened a large crowd on the date of the certification in Washington, D.C., focused them on the certification process, told them their country was being stolen from them, called for strength and action, and directed them to the Capitol where the certification was about to take place.

[snip]

His inaction during the violence and his later endorsement of the violence corroborates the evidence that his intent was to incite violence on January 6, 2021 based on his conduct leading up to and on January 6, 2021. The Court therefore holds that the first Brandenburg factor has been established.

[snip]

The Court holds there is scant direct evidence regarding whether the Presidency is one of the positions subject to disqualification. The disqualified offices enumerated are presented in descending order starting with the highest levels of the federal government and descending downwards. It starts with “Senator or Representatives in Congress,” then lists “electors of President and Vice President,” and then ends with the catchall phrase of “any office, civil or military, under the United States, or under any State.” U.S. CONST. amend. XIV, § 3.

[snip]

As a result, the Court holds that Section Three of the Fourteenth Amendment does not apply to Trump.

Wallace’s opinion is best understood as a punt to Colorado’s Supreme Court: a finding of facts which they will eventually decide how to apply. She says as much in a footnote: She made the finding of fact that Trump did engage in insurrection so the Colorado Supreme Court can resolve any appeal without coming back to her.

The Court is denying Petitioners the relief they request on legal grounds. Because of the Parties’ extraordinary efforts in this matter, the Court makes findings of facts and conclusions of law on all remaining issues before it. The Court does so because it is cognizant that to the extent the Colorado Supreme Court decides to review this matter, it may disagree with any number of the legal conclusions contained in this Order and the Orders that precede it. The Court has endeavored to give the Colorado Supreme Court all the information it needs to resolve this matter fully and finally without the delay of returning it to this Court.

But it’s also a preview of Trump’s January 6 trial.

Perhaps the most interesting aspect of Wallace’s ruling is that she found, over and over, that Trump’s side did not present evidence to fight the claim of insurrection. Trump’s legal expert, Robert Delahunty (who contributed to some of the most outrageous War on Terror OLC opinions), presented no definition of insurrection that wouldn’t include January 6. Kash Patel presented no evidence to back his claim that Trump intended to call out 10,000 members of the National Guard. Trump presented no evidence that criminal conviction was required before disqualification. There was no evidence presented that Trump did not support the mob’s purpose.

Once Wallace dismissed Kash (and Katrina Pierson’s) claims that Trump intended to call the National Guard, all Trump had left was Brandenburg: a claim that his speech did not count as incitement, the same claim Trump has made in his efforts to defeat gags, the same claim Trump attempted to use to get Judge Chutkan to throw out any reference of the mob in his January 6 indictment.

Wallace used three things to show that Trump did intend to incite the mob.

First, she relied heavily on the testimony of Chapman University (!!!) professor Peter Simi, who described how Trump used the coded language of the far right to endorse violence. She mapped out what Trump added into his January 6 speech. And she talked about how Trump’s later statements — about Pence, and telling the mob he loved them — ratified their violence (an argument Amit Mehta also made), which Wallace used to distinguish Trump from Charles Evers.

As I have shown, Trump has tried to simply wish away the role of the mob in his indictment, a wish that Tanya Chutkan already rejected. Judge Wallace’s opinion makes it clear that’s all Trump has.

DOJ Refuses to Let Trump Disavow His Mob

In three different ways in their responses to Trump’s motions to dismiss submitted yesterday, Jack Smith’s prosecutors emphasized that Trump should be subject to the same standards — and legal precedents — as the mob he sicced on the Capitol.

One pertains to the appellate precedents already set in the application of 18 USC 1512(c)(2). DOJ cited both January 6 precedents — Fischer and Robertson — to lay out that interrupting the vote certification to secure the presidency for oneself would be evidence of corrupt intent.

The alternatives include “using independently unlawful, felonious means,” id. at *9, and acting with a “corrupt purpose,” id. at *11, which includes acting “with an intent to procure an unlawful benefit,” Fischer, 64 F.4th at 352 (Walker, J., concurring) (quotation marks omitted), such as “secur[ing] . . . the presidency,” and acting dishonestly, Arthur Andersen LLP v. United States, 544 U.S. 696, 706- 07 (2005); see Robertson, 2023 WL 6932346, at *12 (noting that “dishonesty” or “seeking a benefit for oneself or another” is not necessary but “may be sufficient to prove corrupt intent”).

Then, in response to Trump’s claim of selective prosecution (based off two stories — the famous Carol Leonnig one and a much earlier NYT one, both by journalists who did little other coverage of the larger January 6 investigation) — DOJ pointed to all the other similarly situated Jan6ers who not only were prosecuted, but whose claims of selective prosecution or prosecution for speech failed.

The passage cited to:

  • Carl Nichols’ opinion that Garret Miller’s role in interrupting the peaceful transfer of power distinguished him from Portland rioters.
  • Trevor McFadden’s opinion that, because January 6 posed a greater threat than the Portland riots, David Judd could not argue he was being prosecuted more severely than they had been for setting off a firecracker in The Tunnel.
  • James Boasberg’s opinion that judge’s son Aaron Mostofsky, was not being prosecuted because he wore animal pelts to January 6, but because he obstructed the vote certification.
  • John Bates’ opinion that the threat to government officials and employees, as well as the objective of obstructing the vote certification, could warrant harsher charges against retired Air Force Lieutenant Colonel Larry Brock, who brought zip ties onto the floor of the Senate.
  • John Bates’ opinion that Zeeker Bozell, was not being prosecuted for his political views but for “the destructive acts he allegedly took to disrupt the January 6 Certification.”
  • Royce Lamberth’s findings of fact that it didn’t matter that, even if Alan. Hostetter sincerely believed–which it appears he did–that the election was fraudulent, that President Trump was the rightful winner, and that public officials committed treason, as a former police chief, he still must have known it was unlawful to vindicate that perceived injustice by engaging in mob violence to obstruct Congress.”
  • Amy Berman Jackson’s opinion dismissing Danny Rodriguez’ claim that he was being prosecuted for his “sincerely held political belief that the 2020 presidential election was not fairly decided,” noting that it was his criminal conduct, including tasing Michael Fanone.
  • Amit Mehta’s argument that Stewart Rhodes and his co-conspirators were charged of more in their seditious conspiracy indictment than simply calling on Trump to invoke the Insurrection Act.

This list includes four GOP appointed judges, including his two Trumpiest appointments (one a former Clarence Thomas clerk), it includes the scion of a prominent Republican family and several people who invaded the Senate, it includes two of the defendants whose actions prosecutors showed were the most directly tied to Trump’s speech. And it includes an Oath Keeper convicted of sedition.

That section describing January 6 defendants whose First Amendment claims have already failed included a cross-citation to DOJ’s response on the motion to strike. Over the course of that filing, DOJ provided still more precedents from Trump’s mob, about the collective action of the mob, that they argue should apply to him too:

“The sheer numbers of individuals making up the mob that marched on the U.S. Capitol on January 6, 2021—without stopping at the fencing or the barricades or the police lines or the chemical spray and other crowd control tools deployed by law enforcement—had the effect of overwhelming law enforcement officers attempting to secure the Capitol, with the direct consequence of creating a catastrophic security risk requiring the evacuation of lawmakers, staff, and press representatives legitimately gathered inside the Capitol building that day to conduct, facilitate, and observe the certification of the Electoral College vote count and triggering a lengthy delay before this constitutionally-mandated proceeding could resume.”

  • James Boasberg’s opinion that Sara Carpenter could not exclude evidence of the effect on the vote certification because, “the weighty probative value of evidence that broadly depicts what happened on January 6 outweighs any potential prejudice or cumulativeness.”
  • James Boasberg’s opinion, again finding that such general evidence can come in to prove what Bradley Bennett obstructed.
  • Colleen Kollar-Kotelly’s opinion that evidence about context could come in at Danean MacAndrew’s trial because “the size of the crowd, political leaders, and false allegations of voter fraud and election interference” … “bear on Defendant’s mental state at the time of the charged offenses.”
  • Colleen Kollar-Kotelly’s opinion repeating her MacAndrew ruling that the government could present evidence of the collective action of the mob in Anthony Alfred Griffith’s trial.

The response to Trump’s motion to strike did more: It hung Trump’s mob on him. It called Trump out for disavowing his mob in an attempt to wipe away a critical part of the indictment.

[P]ublicly, the defendant has promoted and extolled the events of that day. While the violent attack was ongoing, the defendant told rioters that they were “very special” and that “we love you.” In the years since, he has championed rioters as “great patriots” and proclaimed January 6 “a beautiful day.” In this case, though, the defendant seeks to distance himself, moving to strike allegations in the indictment related to “the actions at the Capitol on January 6, 2021.” ECF No. 115 at 1. The Court should recognize the defendant’s motion for what it is: a meritless effort to evade the indictment’s clear allegations that the defendant is responsible for the events at the Capitol on January 6.

It debunked Trump’s claim that he is not charged with being responsible for January 6.

The defendant’s motion is premised on the disingenuous claim that he is not charged with “responsibility for the actions at the Capitol on January 6, 2021.” ECF No. 115 at 1. But the indictment clearly alleges, and the Government will prove at trial, that the defendant bears such responsibility.

And, as I predicted would happen, DOJ committed to prove that Trump obstructed the vote certification — and nearly got Mike Pence killed — in significant part, with his mob.

Ultimately, the defendant’s three conspiracies culminated and converged when, on January 6, the defendant attempted to obstruct and prevent the congressional certification at the Capitol. One of the ways that the defendant did so, as alleged in the indictment, was to direct an angry crowd of his supporters to the Capitol and to continue to stoke their anger while they were rioting and obstructing the certification.

At trial, the Government will prove these allegations with evidence that the defendant’s supporters took obstructive actions at the Capitol at the defendant’s direction and on his behalf. This evidence will include video evidence demonstrating that on the morning of January 6, the defendant encouraged the crowd to go to the Capitol throughout his speech, giving the earliest such instruction roughly 15 minutes into his remarks; testimony, video, photographic, and geolocation evidence establishing that many of the defendant’s supporters responded to his direction and moved from his speech at the Ellipse to the Capitol; and testimony, video, and photographic evidence that specific individuals who were at the Ellipse when the defendant exhorted them to “fight” at the Capitol then violently attacked law enforcement and breached the Capitol.

The indictment also alleges, and the Government will prove at trial, that the defendant used the angry crowd at the Capitol as a tool in his pressure campaign on the Vice President and to obstruct the congressional certification. Through testimony and video evidence, the Government will establish that rioters were singularly focused on entering the Capitol building, and once inside sought out where lawmakers were conducting the certification proceeding and where the electoral votes were being counted. And in particular, the Government will establish through testimony and video evidence that after the defendant repeatedly and publicly pressured and attacked the Vice President, the rioting crowd at the Capitol turned their anger toward the Vice President when they learned he would not halt the certification, asking where the Vice President was and chanting that they would hang him. [my emphasis]

DOJ’s commitment to prove this echoes moves it has taken during past prosecutions — the evidence of Trump’s effect on defendants has already been introduced in plea hearings or at trial.

DOJ has been preparing to prove this for a very, very long time.

Meanwhile they’ve been collecting receipts of all the times that Trump has owned this mob since — including receipts from the Waco rally kicking off his current presidential run.

The Government will further establish the defendant’s criminal intent by showing that, in the years since January 6, despite his knowledge of the violent actions at the Capitol, the defendant has publicly praised and defended rioters and their conduct. There is a robust public record of how rioters’ actions at the Capitol on January 6 were extraordinarily violent and destructive, including attacks on law enforcement officers with flag poles, tasers, bear spray, and stolen riot shields and batons. One officer who was dragged into the crowd endured a brutal beating while members of the crowd reportedly yelled, “Kill him with his own gun!” Terrified lawmakers and staff hid in various places inside the building, and many were evacuated. Despite this, the defendant has never wavered in his support of January 6 offenders. For instance, the Government will introduce at trial the defendant’s own statements in the years since January 6 proclaiming it “a beautiful day” and calling rioters “patriots,” many of whom he “plan[s] to pardon.”2 The Government will also introduce evidence of the defendant’s public support for and association with the “January 6 Choir,” a group of particularly violent January 6 defendants detained at the District of Columbia jail. 3 The defendant’s decision to repeatedly stand behind January 6 rioters and their cause is relevant to the jury’s determination of whether he intended the actions at the Capitol that day.

3 The defendant began a campaign rally in Waco, Texas, on March 25, 2023, by playing a recording of the Star-Spangled Banner by the January 6 Choir. Of the January 6 Choir, the defendant told the crowd, “[O]ur people love those people, they love those people.” See C-SPAN at 2:44, https://www.c-span.org/video/?526860-1/president-trump-holds-rally-waco-texas. The January 6 Choir includes defendants who assaulted law enforcement officers on January 6 and one who used chemical spray on a Capitol Police officer who died the next day. See Washington Post, Behind Trump’s Musical Tribute to Some of the Most Violent Jan. 6 Rioters (May 7, 2023), https://www.washingtonpost.com/investigations/interactive/2023/trump-j6-prison-choir/.

In an attempt to avoid the fate hundreds of them have already faced, Trump attempted to disavow his mobsters.

DOJ intends to prove that Trump was very much a part of the mob that attacked the Capitol on January 6 and almost got his Vice President killed.

Mike Pence Simplifies the Gag Order Dispute

If my Irish Daylight Savings calculation and PACER operations are correct, Donald Trump submitted his reply to DOJ’s opposition to a stay on the gag Judge Tanya Chutkan imposed at around 8:50PM ET last night.

President Trump’s political opponents (some of whom are witnesses), the Biden Administration, and the citizenry writ large in connection with the 2024 campaign. This is precisely where the Gag Order runs headlong into unconstitutional shoals. President Trump is absolutely entitled to defend himself publicly and explain with specificity why the charges against him are false and meritless.

The filing includes the kind of sophistry John Lauro excels at. It continues to artificially dismiss the abundant evidence that Trump’s statements routinely lead to violence (in one place, by dismissing anything that happened more than three months ago: Taylor Taranto’s stalking of Barack Obama in response to Trump’s Truth Social post was on June 28, exactly four months before this filing).

But it is not frivolous. Trump wildly misrepresents the scope of the gag, particularly as it pertains to Joe Biden, about whom the gag imposes no restrictions.

This Order shall not be construed to prohibit Defendant from making statements criticizing the government generally, including the current administration or the Department of Justice; statements asserting that Defendant is innocent of the charges against him, or that his prosecution is politically motivated; or statements criticizing the campaign platforms or policies of Defendant’s current political rivals, such as former Vice President Pence.

These are not easy First Amendment questions.

And, Trump used the prosecution’s request to put restrictions on witness tampering into Trump’s release conditions (which is where Amy Berman Jackson put a similar gag for similar reasons on Roger Stone) to note its tactical position of strength.

The prosecution’s request is also jurisdictionally improper. The Court entered the Gag Order, and President Trump promptly filed a notice of appeal. The prosecution does not dispute that the Gag Order is an appealable order. See Doc. 110, at 8. Thus, when President Trump filed his notice of appeal, it divested the Court of jurisdiction to amend or modify the Gag Order: “The filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). The prosecution’s latest proposal seeks to end-run around the Court of Appeals’ jurisdiction by modifying and reasserting the Gag Order as a condition of release while it is being challenged on appeal, which the Court lacks jurisdiction to do. See id.

Trump intends to take this gag order to a partisan Supreme Court where several Justices are already raring to forcibly protect the kind of violent threats that Trump specializes in. Heck, if Trump succeeds as well as he might, his appeal of this gag could solve the problem with the “mob” part of the indictment which I’ve noted.

And all that’s why the stakes of Pence’s decision to drop out of the presidential race yesterday matters.

I came here to say it’s become clear to me: this was not my time. So after much prayer and deliberation, I have decided to suspend my campaign for president, effective today.

He’s absolutely right. It is not the time for someone running on having upheld the Constitution to run in the Republican Party. The GOP is little more than a criminal protection racket to shelter one man, Donald Trump.

Pence dropped out before 5PM ET. By the time Trump submitted his motion claiming some of the witnesses the gag would prevent him from attacking were his political opponents, Pence dropped out of the race.

So long as Pence was in the race running on the policy of upholding the Constitution, as he did on January 6, there was a clear conflict between the gag’s restrictions on Trump’s attacks on witnesses and its explicit permission to attack the policies of his rivals in the 2024 Presidential race.

That conflict has been resolved.

These First Amendment questions are still difficult. This appeal may still give Trump a vehicle to get SCOTUS to protect the kind of mob incitement that is at the core of the indictment.

But yesterday, Pence resolved the most difficult of the questions.

Update: On Sunday night, Judge Chutkan denied the stay. Her order notes:

  • Even if a request to alter Trump’s release conditions were procedurally proper, it’s not necessary to enforce the terms of the gag
  • Trump ignored the causal link between his attacks and certain kinds of threats
  • Trump failed to fully raise the First Amendment interests of his followers in his opposition to a gag
  • Trump ignored the way Judge Chutkan had tailored her order (for example, by not gagging attacks on DC)
  • Trump adopted a dictionary rather than the well-accepted legal definition of “interested parties”
  • The difference between Trump’s general attack on the “Election Rigging Biden Administration,” which is not gagged, and a post claiming “if [Meadows would] say BAD THINGS about that ‘MONSTER'” Donald Trump he might avoid prison, which is gagged, is clear

DOJ’s Theory of Trump’s Mob

DOJ’s reply on its bid for a gag on Donald Trump has a number of the things you’d expect.

It has a list of the seven people Trump has threatened since the last filing on this, including Trump’s vicious attack on Mark Milley.

With each filing, DOJ just keeps adding to the list of people Trump either incited or targeted.

The government also notes that Trump may have broken the law — or claimed he did, for political benefit — when he claimed to have purchased a Glock.

9 The defendant recently was caught potentially violating his conditions of release, and tried to walk that back in similar fashion. In particular, on September 25, the defendant’s campaign spokesman posted a video of the defendant in the Palmetto State Armory, a Federal Firearms Licensee in Summerville, South Carolina. The video posted by the spokesman showed the defendant holding a Glock pistol with the defendant’s likeness etched into it. The defendant stated, “I’ve got to buy one,” and posed for pictures with the FFL owners. The defendant’s spokesman captioned the video Tweet with the representation that the defendant had purchased the pistol, exclaiming, “President Trump purchases a @GLOCKInc in South Carolina!” The spokesman subsequently deleted the post and retracted his statement, saying that the defendant “did not purchase or take possession of the firearm” (a claim directly contradicted by the video showing the defendant possessing the pistol). See Fox News, Trump campaign walks back claim former president purchased Glock amid questions about legality (Sept. 25, 2023), https://www.foxnews.com/politics/trump-campaign-walks-back-claim-former-presidentpurchased-glock-amid-questions-about-legality (accessed Sept. 26, 2023). Despite his spokesperson’s retraction, the Defendant then re-posted a video of the incident posted by one of his followers with the caption, “MY PRESIDENT Trump just bought a Golden Glock before his rally in South Carolina after being arrested 4 TIMES in a year.”

The defendant either purchased a gun in violation of the law and his conditions of release, or seeks to benefit from his supporters’ mistaken belief that he did so. It would be a separate federal crime, and thus a violation of the defendant’s conditions of release, for him to purchase a gun while this felony indictment is pending. See 18 U.S.C. § 922(n).

Notably, the government points to 18 USC 922 as its basis to claim it would be illegal for Trump to purchase a gun. His release conditions don’t prohibit him from owning a gun.

Trump won’t be charged on this. Which means it’ll be another thing Hunter Biden will use to show selective prosecution.

But I’m most interested DOJ’s rebuttal to Trump’s claim that Jack Smith improperly connected Trump to January 6 in his press conference announcing the indictment when he said Trump had, “fueled . . . an unprecedented assault on the seat of American democracy.”

The defendant seeks to deflect responsibility for his own prejudicial statements by claiming that the indictment in this case was “false and derogatory” and that the Special Counsel’s brief statement upon its unsealing was prejudicial because it ascribed to the defendant responsibility for the events of January 6, 2021—which, according to the defendant’s opposition, the indictment does not allege. ECF No. 60 at 19-20. The defendant is wrong.

[snip]

[T]he indictment does in fact clearly link the defendant and his actions to the events of January 6. It alleges—and at trial, the Government will prove—the following:

  • The defendant’s criminal conspiracies targeted, in part, the January 6 certification and capitalized “on the widespread mistrust the [d]efendant was creating through pervasive and destabilizing lies about election fraud,” ECF No. 1 at ¶4.
  • In advance of January 6, the defendant “urged his supporters to travel to Washington on the day of the certification proceeding, tweeting, ‘Big protest in D.C. on January 6th. Be there, will be wild!,’” id. at ¶87. He then “set the false expectation that the Vice President had the authority to and might use his ceremonial role at the certification proceeding to reverse the election outcome in [his] favor, id. at ¶96.
  • Then, despite his awareness “that the crowd [ ] on January 6 was going to be ‘angry,’” id. at ¶98, on the morning of January 6, the defendant “decided to single out the Vice President in public remarks,” id. at ¶102, and “repeated knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding and exert pressure on the Vice President to take the fraudulent actions he had previously refused,” id. at ¶10d.
  • Finally, on the afternoon of January 6, after “a large and angry crowd—including many individuals whom the [d]efendant had deceived into believing the Vice President could and might change the election results—violently attacked the Capitol and halted the proceeding,” the defendant exploited the disruption in furtherance of his efforts to obstruct the certification, id. at ¶10e.

In short, the indictment alleges that the defendant’s actions, including his campaign of knowingly false claims of election fraud, led to the events of January 6.

This is a very neat formula of the things Trump did to stoke the violence. The lies provided foundation for the rally which provided an opportunity to target Pence which provided the cause to send mobs to the Capitol. DOJ has been working on laying out this formula for 26 months. Here they lay it out in a few short paragraphs, one way to read a complex indictment.

More remarkably, it comes as part of a gag request that — while it mentioned Trump’s attacks on Pence after the fact — didn’t focus on Trump’s dangerous targeting of Pence to gin up the mob. The initial gag request looked at all the other lives Trump ruined by targeting them. But it didn’t focus on Pence.

Here, once again in the response to an invitation by Trump to do so, DOJ neatly lays out how Trump’s attacks on Pence were a key tool he used to direct the mob.

Beryl Howell Scoffs That We Think We Know Anything about the Trump Investigations

On February 16, CNN published a story describing that there were eight sealed grand jury matters in the twin investigations into Trump. In addition to the not-yet filed Mike Pence challenge to his own testimony, it named seven other sealed proceedings:

  • The crime-fraud ruling pertaining to Evan Corcoran
  • DOJ’s bid to hold Trump in contempt for failing to turn over all stolen documents in his possession
  • Trump’s Executive Privilege claim with Greg Jacob and Marc Short
  • Trump’s Executive Privilege claim with the two Pats, Cipollone and Philbin
  • Scott Perry’s Speech and Debate challenge to the warrant for his phone
  • The privilege fight over Jeffrey Clark, John Eastman, Ken Klukowski, and one other person’s content
  • The order compelling Kash Patel to testify

Just over a week later, on February 24, Xitter’s lawyers would include that story in package of media articles it claimed — in its reply brief to vacate the gag order — showed that DOJ didn’t need to keep the warrant for Trump’s Xitter account sealed any longer.

That story about how little we knew of sealed grand jury proceedings became part of yet another sealed grand jury proceeding in the investigation into Donald Trump.

The reply motion itself made a bunch of claims about how much was known about the investigation, with more links to news articles.

3 Mr. Trump may be unique in this regard for this investigative step. Because he was announced as a principal subject of investigation and because the public reporting has focused on investigative actions directed at him, he may have a unique level of knowledge about investigative actions regarding him—even relative to other investigations of him that were conducted with far less public awareness.

4 The news articles Twitter cited its initial motion are attached here as Exhibit A. The articles cited in this Reply are attached as Exhibit B.

5 Maggie Haberman & Michael S. Schmidt, Jared Kushner and Ivanka Trump Subpoenaed in Jan. 6 Investigation, N.Y. TIMES (Feb. 22, 2023), available at [link redacted]

6 Maggie Haberman & Glenn Thrush, Pence Gets Subpoena From Special Counsel in Jan. 6 Investigation, N.Y. TIMES (Feb. 9, 2023), available at [link redacted]

7 C. Ryan Barber & Sadie Gurman, Mark Meadows, Trump’s Last Chief of Staff, Subpoenaed by Grand Jury, WALL STREET JOURNAL (Feb. 15, 2023), available at [link redacted]

8 C. Ryan Barber & Alex Leary, Trump Lawyers Appeared Before Grand Jury as Part of Classified-Documents Probe, WALL STREET JOURNAL (Feb. 11, 2023), available at [link redacted]

9 Katelyn Polantz et al., Special counsel is locked in at least 8 secret court battles in Trump investigations, CNN (Feb. 16, 2023), available at [link redacted]

10 C. Ryan Barber & Alex Leary, Trump Lawyers Appeared Before Grand Jury as Part of Classified-Documents Probe, WALL STREET JOURNAL (Feb. 11, 2023).

11 Jim Small, GOP Arizona legislators, including leaders of the house and senate, subpoenaed to testify in special counsel probe of Trump, Arizona Mirror (Feb. 17, 2023), available at [link redacted]

That February 24 package was actually the second package of news articles Xitter cited or linked to support its argument that revealing the warrant wouldn’t help Trump because so much of the investigation had been publicly reported; it cited a bunch in the initial motion to vacate, too.

First, the Department of Justice’s criminal investigation into former President Trump and his potential role in the efforts to overturn the 2020 presidential election and the January 6, 2021 attack on the United States Capitol, has been public for several months prior to the issuance of this Warrant. Specifically, the news media has reported extensively that presidential advisors, including White House counsel and senior staff, have been subpoenaed to testify before a federal grand jury investigating those events. See e.g., Casey Gannon et al., Former Trump White House Counsel and His Deputy Testify to Jan. 6 Criminal Grand Jury, CNN (Dec. 2, 2022), available at [link redacted] First on CNN: Top Trump Advisor Stephen Miller Testifies to January 6 Federal Grand Jury, CNN (Nov. 29, 2022), available at [links redacted]; Bart Jansen, Justice Department Subpoenas Dozens of Trump Aides in Apparent Escalation of Investigation, According to Reports, USA Today (Sept. 12, 2022),  available at [link redacted]; Kyle Cheney, Two Top Pence Aides Appear Before Jan. 6 Grand Jury, POLITICO (Jul. 25, 2022), available at [link redacted].

[snip]

It is also well known that, as part of its investigation, the Department of Justice is closely examining the private communications of people within the scope of its investigation, including the former president’s aides and allies. Indeed, the Department of Justice has obtained search warrants for electronic devices of numerous close associates of former President Trump. See e.g., Steve Benen, DOJ Seizes Team Trump Phones as Part of Intensifying Jan. 6 Probe, MSNBC (Sept. 13, 2022), available at [link redacted]; Ella Lee, Pennsylvania Rep. Scott Perry, a Trump Ally, Says FBI Agents Seized His Cellphone, USA TODAY (Aug. 10, 2022), available at [link redacted]; Scott Gleeson, MyPillow CEO, Trump Ally Mike Lindell Says FBI Issued Subpoena, Seized Phone at a Hardee ‘s, USA TODAY (Sept. 14, 2022), available at [link redacted]; Alan Feuer & Adam Goldman, Federal Agents Seized Phone of John Eastman, Key Figure in Jan. 6 Plan, N.Y. Times (Jun. 27, 2022), available at [link redacted]. The Federal Bureau of Investigation (“FBI”) has also executed a search warrant at the home of a Trump ally to seize electronic devices. See e.g. Alan Feuer at al., Federal Authorities Search Home of Trump Justice Dept. Official, N.Y. Times (Jun 23, 2022), available at [link redacted].

Then it included those articles as an appendix in its opposition to show cause to hold it in contempt.

Over and over again, Xitter argued that the media coverage of the investigation provided a thorough understanding of the steps taken so far in the investigation.

It was an argument that then-Chief Judge Beryl Howell, deep into presiding over her second and third investigations — that we know of! — into Donald Trump found wildly unpersuasive.

She and AUSA Gregory Bernstein discussed it at some length in the February 7 hearing on the warrant.

At first, she asked how much Xitter really knew so she could figure out whether Xitter had refused to respond to a warrant thinking that no one would protect Trump’s privileges — thinking that somehow Judge Howell, deep into presiding over her second and third investigation of Donald Trump, had ignored those sensitivities.

Howell: I need to be clear about what Twitter has  seen of the warrant package. I don’t know how many of you at Twitter’s table have ever been prosecutors; but you know the warrant is a very thin little part — important part, critical part, it is a court order — a thin part of a warrant package. I am not clear from this record what Twitter has seen and what it hasn’t. It doesn’t know very much at all, although it thinks it does, about the government’s investigation; but it certainly doesn’t know, I don’t think, very much about the warrant that I signed and all of its parts. But I need to be clear about what it does and doesn’t know about that.

[snip]

THE COURT: ALL right. Now let’s turn to the warrant package. Okay.

So the warrant package consisted of an incredibly lengthy affidavit, the warrant itself. The warrant itself had Attachment A, property to be searched; it had Attachment B, particular things to be searched; and Attachment B had different parts.

Now, certainly, Twitter hasn’t seen the application part of the package; it hasn’t seen the affidavit part of the package. Is that right?

MR. BERNSTEIN: Yes, Your Honor.

THE COURT: That’s correct?

MR. BERNSTEIN: That’s correct, Your Honor.

THE COURT: Certainly, Twitter has seen the warrant and Attachment A; is that correct?

MR. BERNSTEIN: That’s correct, Your Honor.

THE COURT: And out of Attachment B, has Twitter seen any part other than Part 1?

MR. BERNSTEIN: No, Your Honor.

THE COURT: Okay. Well, that’s sort of what I thought, but I wanted to make sure.

So Twitter, as it sits here, has zero idea and zero affirmation about whatever filter protocol or procedure there is attached to this warrant in terms of processing any warrant returns; is that correct?

MR. BERNSTEIN: That’s correct, Your Honor.

THE COURT: And if they know, it’s not from the government.

MR. BERNSTEIN: I’m sorry. Can you repeat the question, Your Honor?

THE COURT: They wouldn’t know from the government.

MR. BERNSTEIN: They would not know from the government, Your Honor, that’s correct.

THE COURT: ALL right. So to the extent that Twitter is standing here, as I understand their position, trying to protect any privilege of the account user with this solution of providing prior notice to the account user, they are taking no account because they can’t — because they haven’t seen it and they don’t know anything about any filter protocol that might be attached to this warrant.

MR. BERNSTEIN: That’s correct, Your Honor. They do not know about any Filter protocol that could or could not be attached to the warrant.

THE COURT: Got it. Okay.

I just want to make it clear, when providers step in here and take up my time on what should be a simple processing of a warrant, exactly how much in the dark they are. Okay.

But then she returned to the question — and the first of Xitter’s two big packets of articles on the investigation — when trying to ascertain whether Xitter had any basis to claim that revealing the warrant wouldn’t alter the balance of the public knowledge on the investigation.

THE COURT: Okay. So Twitter, in its opposition, had, like, I don’t know, I counted like pages of an exhibit of all these press reports about the special counsel investigation; I didn’t look at it in detail.

But, in sum, Twitter’s argument is: Hey, the government’s interest in maintaining the NDO isn’t compelling because look at all this press. Lots of people know about this investigation going on. The Attorney General has an order on the DOJ website saying: I have appointed the special counsel to look at the following issues.

Twitter goes on to say that the press has been doing its job, thankfully. And so, as a consequence, we all know that, you know, the government, in aggressively pursuing this investigation, has been looking at the communications of a number of people.

So it sums up by saying: It strains credulity to believe that the incremental disclosures of this warrant could somehow alter the current balance of public knowledge in any meaningful way so as to cause harm to the investigation.

So just like Twitter doesn’t know much about the warrant here at all, and has only seen a small sliver of the entire warrant package, do you think that it strains credulity to believe the incremental disclosure of this order would somehow alter the current balance of public knowledge in any meaningful way?

MR. BERNSTEIN: Absolutely not, Your Honor.

There is an incredible difference between the public knowing about the existence of the investigation and the account holder in this case knowing about a concrete, investigative step that the government has taken.

And, again, I have to be careful about what I say in this setting because I don’t want to disclose information that’s covered by 6(e) or that otherwise would compromise the investigation. With that said, Your Honor, I think when Your Honor gets our ex parte filing with respect to the NDO, I think Your Honor will wholeheartedly reject the assertion that it strains credulity to think that there could be serious adverse consequences from the President finding out about this search warrant.

Howell and Bernstein returned to the question a short time later, when Bernstein said, “they don’t know anything” but where making “confident factual assertions without knowing the actual facts of the investigation.”

Howell: So do you want to respond to that? — to Twitter’s comment that there is no reason to believe notification would suddenly cause Trump or potential confederates to destroy evidence, intimidate witnesses, or to flee prosecution, or are you waiting on that for an ex parte submission?

MR. BERNSTEIN: We are waiting. But I can give Your Honor two responses in the meantime.

First, they don’t know anything. I mean, they know some stuff. They know what they have read in the newspapers. But they’re making these confident factual assertions without knowing the actual facts of the investigation.

Number two, they have cited a number of news articles. They seem to have a robust understanding of what is in the public record. They seem to be ignoring the fact that there is an entirely separate public investigation into the former President for doing just that, for taking obstructive efforts with respect to NARA’s request to retrieve classified documents, and then the government — the grand jury’s request to subpoena classified documents  from the former President, and the steps that he took to obstruct those efforts. So there will be considerably more detail about the basis for the NDO when we brief this issue.

For now, though, the assertion that they’re making, one, is not based on any factual foundation that they could possibly be aware of; and then, second, to the extent that they are able to ascertain details from the public record, they seem to be ignoring those details.

Xitter had no factual foundation to make the confident assertions about the investigation, an AUSA who had been involved in crafting the warrant explained.

DOJ repeated that argument in its opposition to Xitter’s motion to vacate the order of contempt.

Twitter offers (Twitter’s Mem. 8–14) two unpersuasive arguments to the contrary. First, Twitter contends (id. at 8–12) that because some aspects of the investigation are publicly known, it “strains credulity to believe” that providing the Warrant to the former president will “alter the current balance of public knowledge in any meaningful way” because such a disclosure would be merely “incremental.” Id. at 11. That contention is flawed in several respects. Although the investigation’s existence is no longer secret, it does not follow that the specific ongoing investigative steps the Government is pursuing are therefore publicly known. Many of the media accounts that Twitter cites (id. at 8–10) attempt to fill in gaps based on discrete pieces of information or courthouse sightings of witnesses.4 Whatever the effect of those accounts on the “current balance of public knowledge,” id. at 11, they provide nowhere close to the detail supplied in the Warrant. Providing the Warrant to the former president at this point in the investigation would thus far exceed some mere “incremental” step in informing the former president, as described in the ex parte submission.

4 The same is true of the 80 pages of articles and other documents that Twitter submitted as an exhibit to its opposition to the Government’s Motion to Show Cause. See Twitter’s Opposition to Government’s Motion for an Order to Show Cause, Exhibit B (filed Feb. 6, 2023).

At the same time as we were having very public, ugly battles about what TV lawyers were sure they knew about the investigation, Beryl Howell and Gregory Bernstein were scoffing at the idea that anyone would have a thorough understanding of the investigation based off what witnesses shared with the press or what journalists spied from staking out Prettyman Courthouse.

While Politico sussed out that WilmerHale was involved in a high level fight with Jack Smith’s team when the lawyers came back for an appellate hearing in May, no one knew way back in early February that the pitched battle was already, at that point, several weeks in progress.

Neither Politico nor CNN — the two best outlets for staking out the courthouse — knew their own work had been cited as proof that the public knew all there was to know about the investigation, only to have Beryl Howell scoff at the idea.

No one knew that Jack Smith had obtained Trump’s Xitter account. And even after seeing 500 pages from the fight over that warrant, no one yet knows precisely what they were looking for.

I take that back.

After Judge Tanya Chutkan crafted a protective order last week, Trump got his first batch of discovery. And here’s what he described learning about the investigation, in his bid to delay the January 6 trial until April 2026.

It, among other things, interviewed and subpoenaed hundreds of witnesses, executed over 40 search warrants, and compiled information from countless individual sources. The government included some, but not all, of these materials in a massive, 8.5-terabyte initial production, totaling over 11.5 million pages, together with native files, recordings, and other electronic data not amenable to pagination. [my emphasis]

We’ve spent the last two weeks entranced by a single warrant, making grand conclusions about what Xitter — which also knew nothing — was emphasizing to win a legal battle.

We know of perhaps ten other warrants, if Jack Smith is sharing the warrants for Trump’s co-conspirators and close aides (though he doesn’t have a Fourth Amendment interest in any of those warrants).

  1. Rudy’s devices (likely a warrant served on the FBI in NY)
  2. Ken Klukowski’s Google account
  3. Jeffrey Clark’s Outlook account
  4. Jeffrey Clark’s Google account
  5. Jeffrey Clark’s phone
  6. The fourth account from an as-yet unidentified non-lawyer
  7. John Eastman’s Chapman University emails
  8. John Eastman’s phone
  9. Boris Epshteyn’s phone
  10. Mike Roman’s phone

We know of subpoenas targeting Sidney Powell. We know nothing — literally nothing — about the investigation targeting Ken Cheseboro, one of Trump’s unindicted co-conspirators (except that investigators would have been very interested to learn why he was tailing Alex Jones during the attack on the Capitol, filming him on his phone).

We know of subpoenas obtaining information from NARA. We know of other phones that were seized — like Scott Perry’s and some of the key fake electors and Owen Shroyer — but those present sensitivities that make it less likely they would get shared with Trump, that they would be among the 40 warrants he knows about but we don’t.

We can assume that DOJ obtained warrants for every little last shred of cloud content available from Trump and his co-conspirators, long before they would have started seizing phones.

We can be sure that Trump’s Xitter file would be the last to be seized, not the first. The filings themselves cite how Trump and his associates use Xitter, which DOJ would have learned by seizing those associates’ Xitter accounts first.

Donald Trump is looking at forty warrants and we only know of one with his name on it, and even there we have no idea what DOJ was really after.

I’d say that Beryl Howell was right to scoff at Xitter’s lawyers, at us, for our confident statements about the investigation.

Death by Tweet: “User Attribution Is Important”

Donald Trump nearly killed his Vice President by tweet — the tweet he sent at 2:24PM on January 6, 2021.

111. At 2:24 p.m., after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

112. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.

113. At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!”

114. The Defendant repeatedly refused to approve a message directing rioters to leave the Capitol, as urged by his most senior advisors-including the White House Counsel, a Deputy White House Counsel, the Chief of Staff, a Deputy Chief of Staff, and a Senior Advisor.

As the indictment tells it, at the time Trump sent his potentially lethal tweet, inciting the mob bearing down on Mike Pence, Pence’s spouse, and daughter, Donald Trump was alone in his dining room with the murder weapon: an unknown phone, and his Twitter account.

But when DOJ served a warrant on Twitter for Trump’s Twitter account on January 17, they couldn’t be sure who was holding the murder weapon. They also wouldn’t know whether triggering the murder weapon was coordinated with other events.

That explains why, as Thomas Windom described in a February 9 hearing, metadata from Trump’s Twitter account showing any other account associated with his own may have been just as important for the investigation as any DMs obtained with the warrant.

MR. HOLTZBLATT: Well, Your Honor, we don’t — the issue, Your Honor — there isn’t a category of “associated account information”; that’s not information that Twitter stores.

What we are doing right now is manually attempting to ascertain links between accounts. But the ascertainment of links between accounts on the basis of machine, cookie, IP address, email address, or other account or device identifier is not information that Twitter possesses, it would be information that Twitter needs to create. So that’s the reason why we had not previously produced it because it’s not a category of information that we actually possess.

[snip]

MR. WINDOM: It is, as explained more fully in the warrant — but for these purposes, it is a useful tool in identifying what other accounts are being used by the same user or by the same device that has access to the account is oftentimes in any number of cases, user attribution is important. And if there are other accounts that a user is using, that is very important to the government’s investigation.

[snip]

MR. HOLTZBLATT: That’s right. If the records — if the linkage between accounts, which is what we understand this category to be referring to, is not itself a piece of information that we keep, then it’s not a business record that we would ordinarily produce.

What I understand the government to be asking is for us to analyze our data, as opposed to produce existing data. And we are trying to work with the government in that respect, but that is the reason that it is not something that — that is a different category of information. [my emphasis]

By that point, DOJ would have had Cassidy Hutchinson’s testimony describing what she saw sitting outside Trump’s dining room door (and once, going in to pass off Mark Meadows’ phone). They would have had two grand jury appearances from the two Pats, Cipollone and Philbin, the White House Counsel and Deputy Counsel described in the passage. They would have had at least one interview with Eric Herschmann — the Senior Advisor trying to calm him down.

They did not yet have privilege waived testimony from the Chief of Staff — Mark Meadows — or the Deputy Chief of Staff — Dan Scavino.

And Dan Scavino was the most likely other person to know about that near murder by tweet, because Dan Scavino was in his position, the Deputy Chief of Staff, first and foremost because he had masterminded Trump’s own mastery of Twitter going back to 2016.

So one thing DOJ needed to know before they conducted an interview that took place after Beryl Howell rejected yet another frivolous Executive Privilege claim in March was how Dan Scavino accessed Trump’s Twitter account when he did, from what device.

Who else had access to Trump’s Twitter account, one part of the murder weapon?

When DOJ asked Twitter to go back and figure out which other accounts shared IP addresses, cookies, or other device identifier with Trump’s Twitter account, they were asking for a list of other people (or at least clues to identify those people) who might be holding that murder weapon on January 6, Trump’s Twitter account, instead of Donald Trump.

Before Dan Scavino told the grand jury that he wasn’t in the room when that tweet was sent, as he must have, DOJ would have needed a better idea whether Scavino sent the tweet, to know whether he was telling the truth once he did sit for a privilege waived interview.

But they were also asking for a very specific clue about the other part of that murder weapon: some way to identify the phone from which the potentially deadly tweet was sent. Identifying which phone was alone in the room with Donald Trump on January 6 would also identify which phone to go seize to learn who else Trump was communicating with when he was sitting alone in his dining room as he watched his supporters assault the Capitol. Identifying which phone was alone in the room with Donald Trump on January 6 would help to fill the gap in communications that the January 6 Committee never completely filled.

And not just that phone.

Obtaining the associations to Trump’s Twitter account would also help explain one of the most enduring mysteries about January 6: What happened between the time Sidney Powell left after a screaming meeting on December 18 and the time Trump announced the rally in the early hours of December 19, leading thousands of his most rabid followers to start planning to come to DC?

87. On December 19, 2020, after cultivating widespread anger and resentment for weeks with his knowingly false claims of election fraud, the Defendant urged his supporters to travel to Washington on the day of the certification proceeding, tweeting, “Big protest in D.C. on January 6th. Be there, will be wild!” Throughout late December, he repeatedly urged his supporters to come to Washington for January 6.

That December 19 tweet, and the phone it was sent from, was another kind of murder weapon, the shot that would set off the entire riot. And to figure out who was wielding it, the circumstances in which it went off, investigators would work backwards from where it was stored, on Twitter.

They would want to know, too, how Ali Alexander and Alex Jones copped on so quickly — whether any of the participants in the DM lists via which Stop the Steal was coordinated had a user who also had access to Trump’s Twitter account.

Even before Trump became President, his communication habits made it very difficult to pin down his actions. Roger Stone, for example, would call Trump during the 2016 election on Trump’s cell, his Trump Tower phone, two work phones, via three different assistants, and Keith Schiller. And Stone often used other people’s phones to call on.

Trump still has a habit of using other people’s phones. The stolen documents indictment reflects Molly Michael telling Walt Nauta that Trump had had her phone. Several of Trump’s aides were asked by J6C whether Trump ever used their phones; several probably didn’t tell the truth in response.

But much of execution of January 6 went through the single most stable means of communication Donald Trump had: his Twitter account. And to attribute any actions that happened using Trump’s Twitter account, DOJ needed as much data as possible about who else used it and in what circumstances.

User attribution is important. Especially with a guy who has the ability to murder by tweet.

Beryl Howell Held Elon Musk’s Xitter in Contempt

One of my favorite lines in the Trump January 6 indictment described how, when everyone left Donald Trump alone in the dining room on January 6, he tweeted out a tweet that might have gotten Mike Pence killed.

At 2:24 p.m., after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

It’s just one of 19 Tweets included in the indictment:

  1. On November 25, anticipating Sidney Powell’s lawsuit invoking Dominion voting machines
  2. On December 3, magnifying Rudy’s false claims about Georgia
  3. A Tweet from Gabriel Sterling on December 4 debunking Rudy’s attack on Ruby Freeman
  4. A December 4 attack on PA’s GOP legislative leaders after they refused to reject the popular vote
  5. The December 19 Tweet announcing the January 6 protest that launched the insurrection
  6. A December 21 Tweet falsely claiming vote fraud in WI
  7. A December 23 Tweet attacking Cobb County officials verifying signatures
  8. Trump’s December 23 retweet of Ivan Raiklin Operation Pence Card Tweet
  9. Trump’s January 1 reminder about the January 6 event
  10. A January 5, 11:06 AM Tweet claiming Pence could reject the vote certifications
  11. A January 5, 5:05PM Tweet announcing “we hear you (and love you) from the Oval Office
  12. A January 5, 5:43PM Tweet reminding that the rally opened at 11AM the next day
  13. A January 6, 1AM Tweet claiming that Pence could “send it back”
  14. A January 6, 8:17AM Tweet repeating that all Pence had to do was “send them back to the States, AND WE WIN.”
  15. The famous 2:24PM Tweet targeting Pence
  16. The January 6, 2:38PM Tweet calling on rioters to “Stay peaceful!”
  17. The January 6, 3:13PM Tweet calling for “No violence!”
  18. The January 6, 4:17PM Tweet releasing the video asking people to leave the Capitol
  19. Trump’s January 6, 6:01PM Tweet about a victory “viciously stripped away”

Before DOJ could unroll the indictment in its current form, it had to have proof about who actually Tweeted out each of these.

Aside from the dining room Tweet, it’s not entirely clear he did: Several times the indictment describes Trump “issuing” a Tweet, which might involve others.

That’s probably just one of the reasons why, on January 17, Jack Smith’s team obtained a warrant to provide, “data and records related to the ‘@realDonaldTrump’ Twitter account,” with a nondisclosure order.

Elon Musk’s Twitter not only didn’t have any lawyers home to accept the request, but they balked at providing the data, which was originally due on January 27, because they wanted to tell Trump about it first.

Ultimately, then Chief Judge Beryl Howell had to hold Twitter in contempt for 3 days before it turned over all the requested data on February 9. The DC Circuit just upheld Howell on all counts — the imposition of the gag, the contempt and the fine.

We shall see, going forward, whether DOJ asked for more than that — including any DMs that Trump might have sent to the Stop the Steal crowd, whose efforts were exploding on Twitter at the time.

Update: The warrant may also have asked for information that would be useful to measure Trump’s fundraising; that’s one thing DOJ was focused on in that period (and remains focused on). The warrant also came close to the beginning of the Proud Boys trial, which DOJ kicked off with Trump’s “Stand Back and Stand By” comment.