Posts

Why Did DOJ Delay Seven Months before Letting Jeffrey Rosen Testify?

On January 22 — after Jeffrey Rosen was no longer Acting Attorney General but before Trump’s second impeachment trial — Katie Benner published a story describing Trump’s efforts to get Jeffrey Bossert Clark to undermine those at DOJ, including Rosen and Acting Deputy Attorney General Richard Donoghue, who refused to endorse Trump’s lies about the election.

As I noted the other day, that story included all the details that have been dribbling out from the House Oversight Committee in recent weeks: Trump’s efforts to get DOJ to intervene in Georgia, Rosen and Donoghue’s refusal, followed by Trump’s effort to put Clark in charge at DOJ on January 3. Benner had all that nailed in January.

The day after Benner’s January 22 story, the holdover members of the Senate Judiciary Committee sent a letter to DOJ citing the story and asking for documents behind it.

On January 22, The New York Times reported astonishing details about an alleged plot between then-President Donald Trump and then-Acting Assistant Attorney General of the Civil Division Jeffrey Bossert Clark to use the Department of Justice to further Trump’s efforts to subvert the results of the 2020 presidential election.[1]  These efforts culminated on January 6, when Trump incited a violent mob that attacked Congress as it counted the electoral votes and prepared to affirm President Biden’s victory.  The information revealed by this story raises deeply troubling questions regarding the Justice Department’s role in Trump’s scheme to overturn the election.

The Senate Judiciary Committee will conduct vigorous oversight of these matters.  As a first step, we seek your immediate assurance that the Department will preserve all relevant materials in its possession, custody, or control.  Please also produce the following materials as soon as possible, but no later than February 8, 2021:

  • All documents and communications, including emails, text messages, and calendar entries, referring or related to the reported December 15 meeting between then-President Trump and then-Acting Attorney General Jeffrey Rosen and reported follow-up calls and meetings between President Trump and Mr. Rosen;
  • All documents and communications, including emails, text messages, and calendar entries, referring or related to reported complaints President Trump made to Justice Department leaders regarding then-U.S. Attorney Byung J. Pak prior to Pak’s resignation;
  • All documents and communications, including emails, text messages, and calendar entries, regarding a reported draft letter that Mr. Clark prepared and requested be sent to Georgia state legislators; and
  • All documents and communications, including emails, text messages, and calendar entries, involving the reported January 3 White House meeting involving Mr. Clark and Mr. Rosen.

That letter set a deadline of February 8, over a month before Merrick Garland was confirmed and over 70 days before Lisa Monaco was confirmed.

In May, House Oversight Chair Carolyn Maloney sent Rosen a request (which hasn’t been made public) for a transcribed interview.

Seemingly in response to that — though the letter cites both the January request and the May one — DOJ (in the guise of Bradley Weinsheimer, who was elevated from NSD to DOJ’s institutional accountability role at Associate Deputy Attorney General by Jeff Sessions, and so was a colleague of those DOJ officials), wrote Rosen and five other former top DOJ officials permitting them to testify about a carefully defined set of events. The testimony is basically limited to, “any efforts by President Trump or any DOJ officials to advance unsubstantiated allegations of voter fraud, challenge the 2020 election results, stop Congress’s count of the Electoral College vote, or overturn President Biden’s certified victory.” It is limited to events that happened after Attorney General Barr resigned on December 14. The letter specifically prohibits discussing any prosecutorial decisions the men made, or discussing investigations that were ongoing when they left.

Discussion of any pending criminal cases and possible charges also could violate court rules and potentially implicate rules of professional conduct governing extra-judicial statements.

But within that scope, the letter permits these former DOJ officials to answer questions that would otherwise be covered by executive privilege.

[T]he Department authorizes you to provide unrestricted testimony to the Committees, irrespective of potential privilege, so long as the testimony is confined to the scope of the interviews as set forth by the Committees and as limited in the penultimate paragraph below.

Of particular note, DOJ asked President Biden — via the White House Counsel — whether he wanted to invoke privilege; he chose not to.

Because of the nature of the privilege, the Department has consulted with the White House Counsel’s Office in considering whether to authorize you to provide information that may implicate the presidential communications privilege. The Counsel’s Office conveyed to the Department that President Biden has decided that it would not be appropriate to assert executive privilege with respect to communications with former President Trump and his advisors and staff on matters related to the scope of the Committees’ proposed interviews, notwithstanding the view of former President Trump’s counsel that executive privilege should be asserted to prevent testimony regarding these communications. See Nixon v. Administrator of General Servs., 433 U.S. 425, 449 (1977) (“[I]t must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.” see also id. (explaining that the presidential communications privilege “is not for the benefit of the President as an individual, but for the benefit of the Republic”) (internal citation omitted).

As Benner wrote in a story offering details of Jeffrey Rosen’s testimony, Rosen has been trying to get permission to testify for “much of the year.” As soon as DOJ gave it, he rushed to testify before Trump could intervene.

Mr. Rosen has spent much of the year in discussions with the Justice Department over what information he could provide to investigators, given that decision-making conversations between administration officials are usually kept confidential.

Douglas A. Collins, a lawyer for Mr. Trump, said last week that the former president would not seek to bar former Justice Department officials from speaking with investigators. But Mr. Collins said he might take some undisclosed legal action if congressional investigators sought “privileged information.”

Mr. Rosen quickly scheduled interviews with congressional investigators to get as much of his version of events on the record before any players could ask the courts to block the proceedings, according to two people familiar with those discussions who are not authorized to speak about continuing investigations.

He also reached out directly to Michael E. Horowitz, the Justice Department’s inspector general, and pledged to cooperate with his investigation, according to a person briefed on those talks.

The question is why. After all, these events were knowable to DOJ since they happened, and for the entirety of that time, DOJ has been conducting an investigation into efforts to obstruct the vote count. For some of that period, in fact, Rosen himself was in ultimate charge of the investigation, and he could have ordered or authorized himself to testify.

Benner didn’t specify whether Rosen might have been interviewed by the FBI, though the implication is he has not been asked.

Similarly, DOJ IG has been investigating related issues since then as part of a specific investigation into the BJ Pak firing and a general investigation into January 6. While Michael Horowitz could not subpoena Rosen, he could simply have asked Rosen to provide testimony. But Benner is quite clear that Rosen has not yet testified even to Horowitz.

During that period, too, there was an instance where DOJ IG asked someone for an interview, but the person quit to avoid the testimony.

During the course of an ongoing administrative misconduct investigation, the Department of Justice (DOJ) Office of the Inspector General (OIG) informed a then senior DOJ official, who was a non-career member of the Senior Executive Service, that the senior DOJ official was a subject in the investigation and that the OIG sought to interview the senior DOJ official in connection with the investigation. After several unsuccessful attempts to schedule a voluntary interview with the senior DOJ official, the OIG instructed the senior DOJ official to appear for a compelled interview and informed the senior DOJ official that neither the answers the senior DOJ official provided nor any evidence gained by reason of those answers could be used against the senior DOJ official in a criminal proceeding. The senior DOJ official failed to appear for the compelled interview and resigned from Department employment shortly thereafter.

The OIG concluded that the senior DOJ official violated both federal regulations and DOJ policy by failing to appear for a compelled OIG interview while still a DOJ employee. The OIG offered the senior DOJ official the opportunity to cure that violation by participating in a voluntary interview after leaving the Department, but the senior DOJ official, through counsel, declined to do so. The OIG has the authority to compel testimony from current Department employees upon informing them that their statements will not be used to incriminate them in a criminal proceeding. The OIG does not have the authority to compel or subpoena testimony from former Department employees, including those who retire or resign during the course of an OIG investigation.

Those events were reported on April 19.

There are two more dates of interest. First, DOJ only released its new contact policy — under which the request for a privilege determination may have been passed — on July 21. I’m curious whether the request for a  waiver of executive privilege waiver came after that. Executive privilege considerations were a key limitation on the Mueller investigation overseen in its final days partly by Rosen himself.

At least as interesting, however, is that DOJ sent the letter just one day before DOJ submitted a court filing in the Eric Swalwell lawsuit — speaking of members of Congress but using more generalized language — arguing that no federal officials can campaign in their official capacity and further noting that attacking one’s employer is not within the scope of someone’s job description.

The record indicates that the January 6 rally was an electioneering or campaign activity that Brooks would ordinarily be presumed to have undertaken in an unofficial capacity. Activities specifically directed toward the success of a candidate for a partisan political office in a campaign context—electioneering or campaign activities—are not within the scope of the office or employment of a Member of the House of Representatives. Like other elected officials, Members run for reelection themselves and routinely campaign for other political candidates. But they do so in their private, rather than official, capacities.

This understanding that the scope of federal office excludes campaign activity is broadly reflected in numerous authorities. This Court, for example, emphasized “the basic principle that government funds should not be spent to help incumbents gain reelection” in holding that House or Senate mailings aimed at that purpose are “unofficial communication[s].” Common Cause v. Bolger, 574 F. Supp. 672, 683 (D.D.C. 1982) (upholding statute that provided franking privileges for official communications but not unofficial communications).

[snip]

Second, the Complaint alleges that Brooks engaged in a conspiracy and incited the attack on the Capitol on January 6. That alleged conduct plainly would not qualify as within the scope of employment for an officer or employee of the United States, because attacking one’s employer is different in kind from any authorized conduct and not “actuated . . . by a purpose to serve” the employer. Id. § 228(1)(c). Brooks does not argue otherwise. Instead, he denies the Complaint’s allegations of conspiracy and incitement. The Department does not address that issue here because the campaign-related nature of the rally independently warrants denial of certification, and because the Department is engaged in ongoing investigations into the events of January 6 more generally. But if the Court were to reject our argument that the campaign nature of the January 6 rally resolves the certification question, the Court should not certify that Brooks was acting within the scope of his office or employment unless it concludes that Brooks did not engage in the sort of conduct alleged in the Complaint. [my emphasis]

It’s possible that this seven month delay is inexcusable.

It’s also possible that it reflects the time DOJ took to come to other determinations about whether privileged information could be used to investigate a former President and if so how to obtain it.

Update: On both June 24,

I assure the American people that the Department of Justice will continue to follow the facts in this case and charge what the evidence supports to hold all January 6th perpetrators accountable.

And July 6,

The Attorney General and Deputy Attorney General encouraged the team to continue to follow the facts in this case and charge what the evidence supports to hold all January 6th perpetrators accountable.

Garland made statements reiterating his commitment to charge all perpetrators against whom the evidence supported charges.

“Leave the Rest to Me and the R Congressmen:” Trump’s Big Lie and the Actual Harm of January 6 Obstruction

As I noted, yesterday lawyers for January 6 defendant Brady Knowlton argued before Judge Randolph Moss that Congress’ certification of the vote count is not an official proceeding covered by the obstruction statute Knowlton was charged under. Knowlton’s argument was going as well as could be expected, in my opinion, until his attorney, Brent Mayr, argued that the vote certification was not an official proceeding because no one faced actual harm based on the outcome of the proceeding. Unbelievably, Mayr seems to have given zero consideration to the harm that the lawfully elected President, Joe Biden, might suffer if Congress failed to certify his win, to say nothing of the 81 million voters who voted for him.

The argument happened even as notes and other documents coming out of the House Oversight Committee make it how clear how real that risk was.

Before the notes that have been released start, Trump had already tweeted out an announcement for the January 6 “protest” on December 19.

Trump tweets: “Statistically impossible to have lost the 2020 Election” and “Big protest in DC on January 6th. Be there, will be wild!”

On December 27, Acting Deputy Attorney General Richard Donoghue took notes from a call where Trump laid out the alleged fraud that merited DOJ involvement. Donoghue noted Trump saying, “You guys may not be following the Internet the way I do.” Donoghue recorded multiple times that DOJ officials told Trump his election claims were wrong, detailing the investigations that DOJ had already done into the allegations. He recorded Trump’s intimation that he might start replacing people with Jeffrey Bossert Clark if they didn’t back his claims of fraud.

At one point, Trump demanded, “Just say the election was corrupt and leave the rest to me and the Republican Congressmen.”

That day, Trump tweeted about the January 6 riot again.

December 27, 2020: Trump tweets, “See you in Washington, DC, on January 6th. Don’t miss it. Information to follow.”

The next day, Clark wrote a draft letter to Georgia instructing them to run another election. Donoghue responded, “There is no chance I would sign this letter or anything remotely like it.”

Days later, on January 1, Trump pitched the January 6 protest again, branding it an attempt to “stop the steal.”

Trump himself tweets, “The BIG Protest Rally in Washington, D.C. will take place at 11:00 A.M. on January 6th. Locational details to follow. StopTheSteal!”

On January 2, Acting Attorney General Jeffrey Rosen reiterated, “I confirmed again today that I am not prepared to sign such a letter,” calling on Georgia to send alternate votes to Congress.

On January 3, Trump attempted to make good on the threat he made on December 27, to replace Rosen with someone who would help him steal the election, Clark. Because he didn’t want to distract from his efforts to overturn the election, Trump backed down.

[Clark] informed Mr. Rosen midday on [January 3] that the president intended to replace him with Mr. Clark, who could then try to stop Congress from certifying the Electoral College results. He said that Mr. Rosen could stay on as his deputy attorney general, leaving Mr. Rosen speechless.

Unwilling to step down without a fight, Mr. Rosen said that he needed to hear straight from Mr. Trump and worked with the White House counsel, Pat A. Cipollone, to convene a meeting for early that evening.

[snip]

Around 6 p.m., Mr. Rosen, Mr. Donoghue and Mr. Clark met at the White House with Mr. Trump, Mr. Cipollone, his deputy Patrick Philbin and other lawyers. Mr. Trump had Mr. Rosen and Mr. Clark present their arguments to him.

Mr. Cipollone advised the president not to fire Mr. Rosen and he reiterated, as he had for days, that he did not recommend sending the letter to Georgia lawmakers. Mr. Engel advised Mr. Trump that he and the department’s remaining top officials would resign if he fired Mr. Rosen, leaving Mr. Clark alone at the department.

Mr. Trump seemed somewhat swayed by the idea that firing Mr. Rosen would trigger not only chaos at the Justice Department, but also congressional investigations and possibly recriminations from other Republicans and distract attention from his efforts to overturn the election results.

After nearly three hours, Mr. Trump ultimately decided that Mr. Clark’s plan would fail, and he allowed Mr. Rosen to stay.

Mr. Rosen and his deputies concluded they had weathered the turmoil. Once Congress certified Mr. Biden’s victory, there would be little for them to do until they left along with Mr. Trump in two weeks. [my emphasis]

On the same day Trump tried to replace Rosen with Clark, January 3, he instructed his Acting Secretary of Defense to make sure the National Guard protected his supporters.

The following day, January 4, Trump made DOJ the lead agency for incident response on January 6 (Update: see comments–this happened on January 3). But the people who had almost just been replaced claim that didn’t happen. Whatever the reality, however, DOJ’s inaction is what led to DOD’s delayed response during the insurrection on January 6.

According to Mr. McCarthy, on January 4, the White House designated DOJ as the lead federal agency for January 6: “Sunday evening, after Acting Secretary Miller and General Milley met with the President, they got the lead [f]ederal agency established, all of the pieces started coming together.”559 Mr. Miller also recalled that DOJ was designated as the lead federal agency at some point prior to January 6, but he did not know what role the White House played in the decision.560

Although DOD understood that DOJ was designated as the lead federal agency, there appears to have been no clearly established point of contact within the department, according to Mr. McCarthy, which he found “concerning.”561 Prior to January 6, Mr. McCarthy sent a letter to Acting Attorney General Jeffrey Rosen outlining the Army’s operational plan in support of the Mayor’s request and reached out informally to David Bowdich, FBI Deputy Director, because the two had worked together previously.562 But Mr. McCarthy claimed, even during the attack, he was never provided an official point of contact at DOJ and had no contact with DOJ or FBI officials until approximately 4:00 p.m. 563 General McConville also stated that DOJ was designated as the lead federal agency; however, he noted that DOJ did not conduct any interagency rehearsals or have an integrated security plan, as DOJ did during the summer 2020 protests when it had also been designated as the lead federal agency.564 General McConville stressed the importance of integrated security plans and acknowledged that had there been one on January 6, DOD’s response time would have been quicker.565

In contrast, Mr. Miller stated Richard Donoghue, Acting Deputy Assistant Attorney General, served as DOJ’s operational lead on January 6.566 Notably, however, Mr. Miller acknowledged that, during the attack, he convened calls with Cabinet members to share information and ensure everyone was on the same page.567 When asked why he convened the calls, as opposed to the lead federal agency, Mr. Miller responded, “somebody needed to do it.”568 Mr. Miller was not familiar with any actions DOJ took to coordinate the federal response on January 6.569

On May 12, 2021, Jeffrey Rosen, the Acting Attorney General on January 6, testified at a House Oversight hearing that it was “not accurate” that DOJ was the lead federal agency for security preparations on January 6. 570 He stated that DOJ’s responsibilities were specific to intelligence coordinating and information sharing.571 DOJ has not acknowledged that it was designated the lead federal agency for January 6 and has yet to fully comply with the Committees’ requests for information. 572

These are the events that led up to Brady Knowlton breaching Congress with hundreds and thousands of other people. This is the back story to what led Knowlton to tell a cop that his vote — for the losing candidate of the election — didn’t count, and so he had shown up in the Senate Gallery to make his voice heard.

And according to the President who had set off this attack on another branch of government, all he needed was the claim the election was corrupt. Leave the rest to Trump and the Republican members of Congress, he instructed.

Brady Knowlton’s presence in the Senate Gallery was instrumental to that plan. Knowlton was what Trump had in mind when he said, “leave the rest to me.” And Knowlton helped to intimidate Republican members of Congress to help Trump steal the vote.

Both Brady Knowlton and the then-President seem to have understood that storming Congress was a way to inflict an egregious harm on Joe Biden. And yet Knowlton’s lawyer claims no one would face an injustice if such a harm resulted.

The Significance of Tom Barrack’s Obstruction and False Statements Charges

I want to expand on something I said in this post about Tom Barrack’s charges: the obstruction and false statements charges against Trump’s big fundraiser make this case much more solid than many in the press (usually the same people claiming it’s a FARA case) are suggesting.

 In a June 20, 2019 interview with the FBI, the indictment alleges that Barrack lied about whether:

  1. Al Malik asked Barrack to do things for UAE
  2. Barrack downloaded an encrypted app to use to communicate with MbZ and other Emirati officials
  3. Barrack set up a meeting between MbZ and Trump and, generally, whether he had a role in facilitating communications between them
  4. He had a role in prepping MbZ for a September 2017 meeting with Trump

Curiously, the detention memo mentions two more lies that aren’t included in the indictment:

(1) writing a draft of a speech to be delivered by the Candidate in May 2016; (2) reviewing a PowerPoint presentation to be delivered to senior UAE officials on how to increase the UAE’s influence in the United States with his assistance;

In any case, this structure makes it easy to hold Barrack accountable at least via his lies to the FBI, and that he allegedly lied is powerful evidence that the full scope of the relationship was meant to be secret.

The headline charges are the foreign agent and conspiracy charges. But in addition to those charges, Barrack is also charged with obstruction and false statements. Most likely, if he were found guilty only on those charges, he’d face less time than from the foreign agent charge, but he’d still face prison.

Here’s what we know of the timeline: According to the Rashid Al Malik complaint, he was interviewed by the FBI on April 5, 2018. If the Intercept’s report that Mueller’s team conducted this interview is correct, this is likely his almost entirely redacted 302 (for an investigation that was ongoing in September 2020). Three days earlier, someone represented (as Barrack was) by Steptoe and Johnson had a pre-grand jury interview led by Zainab Ahmad that Andrew Weissmann joined while in progress. On April 8, three days after his own interview, Al Malik left the country and has been gone ever since.

In early 2019, Mueller’s team started handing off referrals, which may be why, in February 2019, the FBI sent subpoenas to Colony Capital.

In or about February 2019, Federal Bureau of Investigation (“FBI”) special agents served federal grand jury subpoenas on several individuals employed by or associated with Company A, including individuals that reported directly to the defendant THOMAS JOSEPH BARACK, in connection with the criminal investigation of the activities of the defendants RASHID SULTAN AL MALIK ALSHAHHI, BARRACK, and MATTHEW GRIMES.

Following the service of these federal grand jury subpoenas, the defendant THOMAS JOSEPH BARRACK volunteered to speak with FBI special agents. On or about June 20, 2019, FBI special agents interviewed BARRACK, in the presence of counsel, regarding the activities of the defendant RASHID SULTAN AL MALIK ALSHAHHI, BARRACK, and the defendant MATTHEW GRIMES. At the outset of the interview, United States government officials advised BARRACK, and confirmed that he understood, that lying to federal agents is a federal crime. Thereafter, during the course of the interview, BARRACK knowingly made numerous materially false statements relating to the activities of ALSHAHHI, BARRACK, and GRIMES.

At the time, of course, Barrack’s close ally was still President and Bill Barr was newly installed at the helm of DOJ, working hard to cover up the true results of the Mueller investigation and even beginning to take steps to protect Rudy Giuliani from his own foreign agent charges. Why wouldn’t Barrack lie?

Interestingly, the obstruction charge against Barrack suggests others were part of this.

On or about June 20, 2019, within the Eastern District of New York and elsewhere, the defendant THOMAS JOSEPH BARRACK, together with others, did knowingly, intentionally and corruptly obstruct, influence and impede, and attempt to obstruction, influence and impede, an official proceeding, to wit: a Federal Grand Jury.

In any case, Barrack is well-resourced and he’ll no doubt offer some solid defenses here, possibly including that he had earlier told the truth about some of this stuff, and so, any inaccuracies in his 2019 interview weren’t material.

But assuming the FBI didn’t charge a billionaire with false statements without having him dead to rights on the charges, by June 2019, the FBI foreclosed several of the defenses that Barrack might offer going forward: that he was doing all this as a legal commercial transaction (which is exempt from the foreign agent charges) or that he wasn’t really working for UAE, he just thought the alliance really served US interests and indulged the Emiratis by referring to MbZ asboss.” By denying very basic things that the FBI appears to have records for, then, Barrack made it a lot harder to argue — in 2021 — that’s there’s an innocent explanation for all this.

Five days after Barrack’s interview, the FBI obtained an arrest warrant for Al Malik, one that made Al Malik look like the bad guy here, taking advantage of poor Tom Barrack and poor Paulie Manafort.

But then DOJ kept investigating Barrack’s role in all this. According to CNN, before this time last year, EDNY prosecutors believed they had enough to add Barrack to the charges, but the appointed US Attorney “expressed misgivings.”

Federal prosecutors in Brooklyn investigating Tom Barrack, a prominent ally to former President Donald Trump, for allegedly violating foreign lobbying laws had enough evidence to bring charges last year, but held off doing so until the arrival of the new presidential administration, according to people briefed on the matter.

Prosecutors wanted to move forward on the case and believed they could obtain an indictment, one source familiar with the matter said. The source said the investigation was mostly done well before the time period when prosecutors are discouraged from advancing politically sensitive matters ahead of an election.

But two sources tell CNN the US attorney in Brooklyn at the time, Richard Donoghue, expressed misgivings about the case. It’s unclear if he delayed the case outright or if prosecutors chose not to move forward at the time knowing the US attorney would not support it.

Then-Attorney General William Barr was also known inside the department to have reservations, in general, about foreign lobbying cases, which the Justice Department has struggled to prosecute in the past.

A spokesman for the Brooklyn US attorney’s office declined to comment. [my emphasis]

This is a hugely important report, but it also lets the Barr DOJ off easy. That’s true, first of all, because this is not a foreign lobbying case (this is one of the many reasons I harp on the import of getting the charge right here). DOJ hasn’t struggled to prosecute 951 cases, though at the time prosecutors deferred these charges, Barr was busy letting Mike Flynn blow up the Bijan Kian case, which included both FARA and 951 in the conspiracy charge, along with 951 separately, but which charged only Ekim Alptekin with false statements. Had Mike Flynn held to the terms of his plea agreement, that case likely would have been a far easier guilty verdict.

What happened last year, though, is that after EDNY prosecutors had continued to investigate for a year after discovering that Barrack was in no way the innocent victim of accused foreign agent Rashid Al Malik and were prepared to try to hold Barrack, as well, accountable for a pretty dramatic undisclosed role in setting a pro-UAE foreign policy, Richard Donoghue, faced with evidence that one of Trump’s closest advisors wasn’t telling the truth about why he was doing the things he was doing (or even, that he was doing them), “had misgivings.”

Or maybe he had misgivings about how Trump and Barr would respond if he approved this.

In fact, all this must have happened more than a year ago, because on July 10, 2020, Barr announced he was swapping Donoghue for Seth DuCharme, his DOJ fixer. This CNN report doesn’t explain why this didn’t get charged under DuCharme, but maybe that’s the point.

So Donoghue — or maybe DuCharme — left all the repercussions to US foreign policy of Barrack’s undisclosed actions earlier in the Trump Administration remain in place.

Frankly, it’s not surprising that Donoghue and DuCharme — who were, at the time, also in charge of limiting any damage to Rudy for his undisclosed influence-peddling — didn’t approve this prosecution. That’s their job.

What may be the most interesting detail is that whereas Lisa Monaco approved the raid on Rudy on her first day in office, this prosecution has taken three more months to charge.

This case will sink or swim on the strength of the false statements charges, because if Barrack’s alleged lies in June 2019 were clearcut, when he presumably believed he would be protected by Barr and Trump, then it makes several likely defenses a lot harder to pull off now. It’s possible there’s some complicating factor (again, I think it possible that he told the truth about some of these questions when interviewed by Mueller in December 2017). But if not, then the alleged lies become the building blocks to proving the Foreign Agent charges.

In any case, the alleged false statements charges make the questions about why Barr’s DOJ thought it was okay to keep these secrets all the more important.

The Hole in the Senate January 6 Report Created by DOJ’s Non-Cooperation

The Senate Rules/Homeland Security Report on January 6 is as helpful for the holes it identifies as it is for the questions it answers.

The most amazing hole pertains to the actions of the Secret Service. The report notes that the Secret Service attended a preparatory meeting on January 5, and like the FBI, Secret Service raised no warnings about the violent mob that their primary protectee was convening in DC.

He has stated that in a January 5 meeting with USCP leadership, members of the Capitol Police Board, and officials from the FBI, U.S. Secret Service, and DCNG, no entity “provided any intelligence indicating that there would be a coordinated violent attack on the United States Capitol by thousands of well-equipped armed insurrectionists.”153

The Report notes that then-Capitol Police Chief Steve Sund called Secret Service and asked for help on the day of the riot.

At 1:01 p.m., Mr. Sund also requested assistance from the United States Secret Service.79

[snip]

Mr. Sund testified that he first contacted MPD, followed closely by the U.S. Secret Service Uniformed Division.457

But the language about the agencies that did come to help does not mention Secret Service.

After 3:00 p.m., additional reinforcements from federal agencies began to arrive, and USCP turned to extracting and securing congressional staff.111 A number of agencies and entities provided assistance, including DHS; the FBI; the Bureau of Alcohol, Tobacco, Firearms and Explosives; the Montgomery County Police Department; the Arlington County Police Department; the Fairfax Police Department; and Virginia State Troopers.112 With this help, USCP secured the Senate and House chambers, along with the basement, subways, first floor, and crypts by 4:28 p.m. 113 DCNG personnel began arriving at the Capitol at approximately 5:20 p.m.114 By 6:14 p.m., USCP, DCNG, and MPD successfully established a security perimeter on the west side of the Capitol building.115

We’ve been focusing for months on the delayed response from DOD, but all this time Secret Service’s role has gone little noticed (and I’m still interested in Park Police’s absence). The silence here suggests that Secret Service blew off an explicit call for help as a mob threatened both Mike Pence and Kamala Harris.

As the report notes, Secret Service’s lead agency, DHS, has not yet fully complied with the Senate’s information requests.

Most entities cooperated with the Committees’ requests. There were notable exceptions, however: the Department of Justice and DHS have yet to fully comply with the Committees’ requests for information, the Office of the House of Representatives Sergeant at Arms did not comply with the Committees’ information requests, and a USCP Deputy Chief of Police declined to be interviewed by the Committees.

As to DOD’s slow response in deploying the Guard on the day of the attack, the report suggests that Army Secretary Ryan McCarthy had a key role in it.

There are multiple conflicting stories about what happened at DOD. It was clear from his testimony that former Acting Secretary Christopher Miller genuinely didn’t understand how much of a delay there was with the deployment of the National Guard. An important detail included in the report is that Miller believed the Guard had his okay to deploy by 3:04, but McCarthy dawdled until after 4:32, after other law enforcement had secured much of the Capitol.

By 4:32 p.m., Mr. McCarthy and his D.C. counterparts had agreed upon a “task and purpose” for DCNG, “identif[ied] link-up locations, and confirm[ed] key leaders at each site.”656 Accounts differ as to who within DOD needed to approve the final plan in order to deploy DCNG troops to the Capitol. Mr. McCarthy briefed Mr. Miller on the plan, who raised no objections.657 But Mr. Miller informed the Committees that he did not need to approve the plan—in his view, his 3:04 p.m. authorization was all encompassing and as soon as Mr. McCarthy and General Walker finished their mission analysis, DCNG had all necessary authorizations to deploy.658 General McConville informed the Committees that, although he did not know for sure, he believed Mr. Miller did need to approve the deployment plan.659

The reason why McCarthy dawdled is important, though.

After a bunch of conflicting excuses about the delay itself, there’s a section addressing why the Quick Reaction Force wasn’t deployed (ironically, given that the Oath Keepers seemed more prepared to release theirs than the entire DOD). After yet more conflicting excuses, McCarthy said that one reason the QRF couldn’t be deployed was because DOD needed to “link up with an organization and contact.”

General Walker also testified that the QRF was outfitted with all the equipment needed to go to the Capitol and was “ready to go” before 5:00 p.m.694 General McConville stated that “there was never an intent to have a quick reaction force going in to clear the Capitol.”695 Neither Mr. McCarthy nor Mr. Miller recalled whether the QRF had its civil disturbance gear available at Joint Base Andrews. Mr. McCarthy also noted that he was never informed that the QRF was at the Armory, equipped, and prepared to depart for the Capitol.696 When asked whether the QRF was properly equipped to respond to the Capitol, even if that was not the original intent, General McConville reiterated the importance of the assigned mission: “it depends on what the mission was.”697

Mr. McCarthy also acknowledged that, even if properly equipped, the QRF still needed to be briefed on the new mission.698 “I wanted to be clear of the concept for operations and how we were going to bring these [available DCNG personnel, including the QRF] together, make sure they ha[d] the right equipment, a clear understanding of their mission, and then link up with an organization and contact.

In other words, the reason the Pentagon couldn’t send a QRF to fight mobs prepared with their own QRF was because there was no lead agency to oversee them.

One of the most important sections of this report describes how Trump made DOJ — the same agency that had deployed even BOP officials during the summer — the lead agency on January 6. But DOJ did nothing. Miller explained that’s why he got so involved — because DOJ did nothing. “Somebody needed to do it,” he explained. And then McCarthy repeatedly used the lack of a lead federal agency as his excuse not to deploy the Guard. This discussion of DOJ’s disavowals of being the lead federal agency is one of the few areas where the report reiterates that an agency refused to cooperate with the Senate.

All DOD officials interviewed stressed the importance of the designation of a lead federal agency to support operations on January 6. The lead federal agency is “the nexus and locus for all information flow” and ensures that everything is coordinated and synchronized across federal agencies and departments.556 Mr. Miller noted that DOD “should never, ever be the lead federal agency for domestic law enforcement,” except for the establishment of martial law.557 Indeed, Mr. McCarthy required an agency to be designated before supporting the Mayor’s request for National Guard assistance. 558 According to Mr. McCarthy, on January 4, the White House designated DOJ as the lead federal agency for January 6: “Sunday evening, after Acting Secretary Miller and General Milley met with the President, they got the lead [f]ederal agency established, all of the pieces started coming together.”559 Mr. Miller also recalled that DOJ was designated as the lead federal agency at some point prior to January 6, but he did not know what role the White House played in the decision.560

Although DOD understood that DOJ was designated as the lead federal agency, there appears to have been no clearly established point of contact within the department, according to Mr. McCarthy, which he found “concerning.”561 Prior to January 6, Mr. McCarthy sent a letter to Acting Attorney General Jeffrey Rosen outlining the Army’s operational plan in support of the Mayor’s request and reached out informally to David Bowdich, FBI Deputy Director, because the two had worked together previously.562 But Mr. McCarthy claimed, even during the attack, he was never provided an official point of contact at DOJ and had no contact with DOJ or FBI officials until approximately 4:00 p.m. 563 General McConville also stated that DOJ was designated as the lead federal agency; however, he noted that DOJ did not conduct any interagency rehearsals or have an integrated security plan, as DOJ did during the summer 2020 protests when it had also been designated as the lead federal agency.564 General McConville stressed the importance of integrated security plans and acknowledged that had there been one on January 6, DOD’s response time would have been quicker.565

In contrast, Mr. Miller stated Richard Donoghue, Acting Deputy Assistant Attorney General, served as DOJ’s operational lead on January 6.566 Notably, however, Mr. Miller acknowledged that, during the attack, he convened calls with Cabinet members to share information and ensure everyone was on the same page.567 When asked why he convened the calls, as opposed to the lead federal agency, Mr. Miller responded, “somebody needed to do it.”568 Mr. Miller was not familiar with any actions DOJ took to coordinate the federal response on January 6.569

On May 12, 2021, Jeffrey Rosen, the Acting Attorney General on January 6, testified at a House Oversight hearing that it was “not accurate” that DOJ was the lead federal agency for security preparations on January 6. 570 He stated that DOJ’s responsibilities were specific to intelligence coordinating and information sharing.571 DOJ has not acknowledged that it was designated the lead federal agency for January 6 and has yet to fully comply with the Committees’ requests for information. 572

In this post, I suggested the January 6 investigation hypothetically could (which is no guarantee it will) reach far more of the potentially criminal behavior than virtually everyone not following closely believes.

But in addition to the two areas where I expressed doubt that could happen — members of Congress, and DOD itself — this report makes it clear that DOJ remains a key subject that should be investigated.

It’s not at all clear that the FBI can or would investigate DOJ’s former top leaders.

Admittedly, DOJ — along with DOD, DHS, and Interior — is conducting a review of DOJ’s role that day and in weeks leading up to it (it’s not clear DHS’ review will include Secret Service, which has its own IG).

Review Examining the Role and Activity of DOJ and its Components in Preparing for and Responding to the Events at the U.S. Capitol on January 6, 2021

The DOJ Office of the Inspector General (OIG) is initiating a review to examine the role and activity of DOJ and its components in preparing for and responding to the events at the U.S. Capitol on January 6, 2021. The DOJ OIG will coordinate its review with reviews also being conducted by the Offices of Inspector General of the Department of Defense, the Department of Homeland Security, and the Department of the Interior. The DOJ OIG review will include examining information relevant to the January 6 events that was available to DOJ and its components in advance of January 6; the extent to which such information was shared by DOJ and its components with the U.S. Capitol Police and other federal, state, and local agencies; and the role of DOJ personnel in responding to the events at the U.S. Capitol on January 6. The DOJ OIG also will assess whether there are any weaknesses in DOJ protocols, policies, or procedures that adversely affected the ability of DOJ or its components to prepare effectively for and respond to the events at the U.S. Capitol on January 6. If circumstances warrant, the DOJ OIG will consider examining other issues that may arise during the review.

The DOJ OIG is mindful of the sensitive nature of the ongoing criminal investigations and prosecutions related to the events of January 6. Consistent with long-standing OIG practice, in conducting this review, the DOJ OIG will take care to ensure that the review does not interfere with these investigations or prosecutions.

DOJ IG has suggested that it is looking into the late Trump term shenanigans. But it’s not clear that it would look at why DOJ let a violent mob assault the Capitol.

Which, given the Senate report, is an issue that needs far more scrutiny.

Lev Parnas Failed to Delete His iCloud Content Just before DOJ Got a Secret Warrant for Rudy Giuliani’s iCloud Content

The government has known that Lev Parnas attempted to delete some or all of his iCloud content since shortly after October 21, 2019 — 2 weeks before it obtained covert warrants for Rudy Giuliani and Victoria Toensing’s iCloud accounts.

On January 17, 2020 (note the date on the letter has the wrong year) — the same day Jeffrey Rosen issued a memo prohibiting any DOJ personnel from expanding the scope of any investigation involving Ukraine without his and Richard Donoghue’s approval — Parnas asked to modify his protective order so he could share materials seized from his iCloud on that October date with the House Intelligence Committee for their impeachment investigation.

In a memo objecting to that request, the government noted that Parnas was perfectly free to download his own iCloud and share it with HPSCI — and asserted he had already done so.

Additionally, to the extent Parnas seeks to produce his own texts, emails, photographs or other materials, he should have access to the content stored on his iCloud account through other means: he can simply download his own iCloud account and produce it to HPSCI (and in fact, it appears he has already done so)

Parnas needed to ask the government, however, because he had deleted some of the material after the government had already obtained a preservation order for his account, meaning the government had the content but Parnas no longer did.

The materials at issue include records that, as far as the Government knows, were never in Parnas’s possession. For instance, the data produced by Apple includes deleted records (which may only exist because of the Government’s preservation requests), account usage records, and other information to which a subscriber would not necessarily have access.

The government asked for Parnas to identify the previously deleted chats he wanted to share with Congress so his co-defendants could raise privilege concerns.

To the extent that Parnas has deleted materials from his iCloud account, the Government is willing to work with counsel to ensure that Parnas can produce his own materials that are responsive to the Congressional request to HPSCI. To that end, the Government respectfully submits that Parnas’s counsel should identify for the Government any specific chats, emails, photographs, or other content Parnas is unable to access from his iCloud currently, but which exist within the discovery that has been produced to him and in his view are responsive to the Congressional subpoena. Requiring Parnas to specifically identify these materials would also permit his co-defendants to raise any concerns with respect to their privilege or privacy interests prior to the materials’ release.

“Tell us which of these texts you attempted to delete you think are the most incriminating to Rudy,” they effectively invited Parnas to explain back in early 2020, as the filter team would have just started wading through Rudy’s already seized iCloud content.

Parnas’ failed attempt to delete sensitive content that would be pertinent to the impeachment inquiry puts Rudy’s wails of outrage that the government successfully persuaded Judge Paul Oetken that if they didn’t obtain this content covertly, it might get deleted in a very different light.

In addition, in the original warrant for the iCloud account, there is a nondisclosure order based upon an allegation made to the issuing Court, that if Giuliani were informed of the existence of the warrant, he might destroy evidence or intimidate witnesses. Such an allegation, on its face, strains credulity. It is not only false, but extremely damaging to Giuliani’s reputation.

Indeed, DOJ may well have been seeking information that Parnas had successfully deleted elsewhere. Parnas seems to think that’s what happened. In his request to get access to the stuff seized from Rudy’s phone, he states that the newly disclosed materials “likely” include communications involving him “that may have been deleted.”

The seized evidence will also likely contain a number and variety of communications between Giuliani and Toensing and Parnas that are directly discoverable under Fed. R. Crim. P. 16, evidence of any conversations between Giuliani, Toensing, and others, including Parnas, that may have been deleted, communications between Giuliani, Toensing and others about the defendants and how to address their prior relationships, the arrests, and the unfolding investigation, communications between Giuliani and Toensing and others with potential Government witnesses, including communications about the defendants, the offenses charged, and the witnesses’ potential disclosures and characterizations of alleged fraud-loss computations.

Meanwhile, the government made an interesting observation in their original request for a Special Master.

Based on the Government’s investigation to date, given the overlap in date range and because certain materials, including certain emails and text messages, were backed up to the iCloud accounts that were searched pursuant to these prior warrants, the Government expects that some, but not all, of the materials present on the electronic devices seized pursuant to the Warrants could be duplicative of the materials seized and reviewed pursuant to the prior warrants.

After admitting the government expects significant overlap between what they got in 2019 and what they got in April because “certain materials” were backed up to the cloud, the government notes that “not all” of what they expect to be on the devices will be duplicative. Some of the new material will pertain to a slightly different date range on the searches. But another cause would be if Rudy and Toensing deleted stuff that could be obtained from their phone.

The investigative team has gotten deep enough in the iCloud material seized in 2019 to identify files that they know existed but were deleted from the iCloud backup, which might be recoverable from a device.

Rudy, in a “doth protest too much” theme in his letter insists he didn’t delete anything but if he did he wasn’t under subpoena anyway.

Despite these two warnings that the SDNY was seeking permission to apply for a search warrant for his electronic devices and because he had no guilty conscience, Giuliani took no steps to destroy evidence or wipe the electronic devices clean. Since Giuliani was not under subpoena, he had no legal obligation to preserve that evidence, but he did so because he is an innocent man who did nothing wrong.

[snip]

Again, all of this took place without Mayor Giuliani or his counsel having any idea that a year and a half prior, the Giuliani iCloud was the subject of a warrant. Giuliani and his counsel were both aware, because of the prominent leaks to the media, of the failed attempts in November of 2020 and again in January of 2021, to gain the required Justice Department permission to search a lawyer’s office and residence. If Giuliani was inclined, there was ample notice and time to destroy evidence.

Aside from mentioning the basis for the covert warrants, Toensing didn’t address whether any data got destroyed.

Whatever exigent circumstances the Government asserted to instead justify covert and overt search warrants in this instance were satisfied when the information was secured and preserved. The information should now be returned to Ms. Toensing and her counsel for a privilege and responsiveness review under the supervision of a Special Master. Moreover, the Government should disclose what seized information it has already reviewed and whether and what information it has provided to the case team.

She just wants everything back so she can restart the process, along with some kind of indication of what the government has already seen.

Rudy, similarly, wants to know what the government knows.

Lastly, Giuliani is entitled to the production of Apple’s entire search warrant return production, as well as the material previously deemed non-privileged and responsive and relevant to the 2019 Search Warrant by the “filter” team.

But Judge Paul Oetken, who found cause for the non-disclosure order back in 2019, was thoroughly unimpressed with all these claims about whether things might have been deleted. As he noted, the search is done.

Moreover, the review of the 2019 warrant returns is now largely complete. And any pre-indictment suppression motion would be premature at this juncture.

Rudy and Toensing can complain if they get charged.

Whither the Douglass Mackey Investigation?

Yesterday, the FBI arrested Douglass Mackey, a far right activist who used the pseudonym Ricky Vaughn, for his efforts in 2016 to suppress Clinton voters. The complaint charges Mackey with a conspiracy against others’ Constitutional rights under 18 USC §241. I want to unpack what the complaint says about where this investigation came from and where it might head, if anywhere.

Mackey and others led almost 5,000 people to miscast their 2016 vote

There’s a lot of language in the complaint about Mackey’s social media efforts — which has a number of right wingers, including those who were tangentially involved in this effort, whining about their own First Amendment rights. Ultimately, though, the crime boils down to ads that Mackay made and popularized in the weeks leading up to the 2016 election encouraging Hillary voters to text their vote. If people did so, they would have thought their vote was cast, when in effect they would have texted it to a void.

The complaint notes that the text code Mackey used for the campaign got 4,900 responses.

According to iVisionMobile, the company that owned the Text Code listed in the two Deceptive Images distributed by MACKEY, at least 4,900 unique telephone numbers texted “[Candidate’s first name]” or some derivative to the Text Code on or about and before Election Day, including many belonging to individuals in the Eastern District of New York. Of the approximately 4,900 numbers that corresponded with the Text Code, approximately 4,850, or 99%, sent their texts after MACKEY first tweeted a Deceptive Image from MACKEY Account 2. [my emphasis]

Effectively, then, the complaint argues that Mackey tricked almost 5,000 people to miscast a Hillary vote, thereby depriving them of their right to cast a valid vote.

This investigation was started and finalized under a Trump US Attorney

Right wingers are also whining that the timing of this complaint shows that the Deep State is moving against Trump supporters immediately after his departure.

That makes no sense.

First, at least two key steps in this investigation, interviews of Paul Nehlen and filmmaker Loren Feldman, happened last fall.

On or about October 5, 2020, FBI agents conducted a voluntary interview with the Congressional Candidate. The Congressional Candidate confirmed that “Ricky Vaughn’s” true name was MACKEY, and that MACKEY had offered his services to his/her campaign. The Congressional Candidate added that, although s/he had never met MACKEY in person, s/he frequently communicated with MACKEY by telephone and via MACKEY’s personal email accounts.

On or about October 19, 2020, FBI agents conducted a voluntary interview of the Filmmaker who again confirmed that s/he had interviewed MACKEY in 2016 and that s/he knew MACKEY at that time by his Twitter name of “Rickey Vaughn.” The Filmmaker futher confirmed that s/he had subsequently been shown a photograph of MACKEY and confirmed that the individual in the photograph was the individual the Filmmaker had met as “Ricky Vaughn.”

In October 2020, as now, the Brooklyn US Attorney was Seth DuCharme. While DuCharme spent his career in EDNY, he was a key aide to Bill Barr, both as Counselor and then PADAG. In July, Barr effectively swapped DuCharme back into EDNY and moved the then US Attorney, Richard Donoghue, to PADAG.

In other words, the guy whose name will be on this indictment is among Barr’s most trusted aides.

DuCharme even issued a strong statement about this prosecution when it was announced.

“There is no place in public discourse for lies and misinformation to defraud citizens of their right to vote,” said Seth D. DuCharme, Acting U.S. Attorney for the Eastern District of New York. “With Mackey’s arrest, we serve notice that those who would subvert the democratic process in this manner cannot rely on the cloak of Internet anonymity to evade responsibility for their crimes. They will be investigated, caught and prosecuted to the full extent of the law.”

I argued in this post that early indictments in the Biden Administration would (because he’s not immediately replacing all US Attorneys) be approved by Trump loyalists, and this is a perfect example of that.

Actions completed in 2016 are being charged in 2021

One of the most interesting questions about this complaint is why actions that were completed in 2016 and didn’t appear to take much investigation beyond some warrants to Twitter and two interviews were only charged in 2021.

It’s not entirely clear where this investigation came from, but the most likely is that when HuffPo originally exposed Mackey in 2018, someone at the FBI or DOJ took notice. That seems all the more likely given that the complaint relies on some of the research in that original story, including that Mackey had a reach on Twitter well outside his follower count.

There was no mistaking Ricky Vaughn’s influence. He had tens of thousands of followers, and his talent for blending far-right propaganda with conservative messages on Twitter made him a key disseminator of extremist views to Republican voters and a central figure in the “alt-right” white supremacist movement that attached itself to Trump’s coattails. The MIT Media Lab named him to its list of top 150 influencers on the election, based on news appearances and social media impact. He finished ahead of NBC News, Drudge Report and Stephen Colbert. Mainstream conservatives didn’t know they were retweeting an avowed racist and anti-Semite, but they liked what Ricky Vaughn had to say.

So the simplest explanation for the genesis of this investigation is that article.

There are other possibilities, though.

For example, as that original HuffPo story noted, Mackey magnified one of the Internet Research Agency’s most effective Twitter accounts, TEN_GOP, which many right wingers mistakenly believed was the official account of Tennessee’s Republican Party.

In the data set of significant accounts we looked at, Ricky Vaughn retweeted @TEN_GOP the most, by far. Although Twitter shut down his @Ricky_Vaughn99 handle in October 2016, another handle he possibly used, @RapinBill, took over and retweeted @TEN_GOP at least 162 times between early March and late August 2017. (@RapinBill also retweeted @Pamela_Moore13, another Kremlin-controlled account, at least 37 times during this period.)

Some far-right sources suggest that @RapinBill might be an account run by another anonymous bad actor, an assertion for which there is no proof, but the account has nevertheless capitalized on the Ricky Vaughn brand of far-right intolerance and fake news. We will update this story as we learn more.

Curiously, @RapinBill, which is still active and followed by Donald Trump Jr., does not appear to have received a single reciprocal retweet from @TEN_GOP during the time period we looked at, perhaps indicating an attempt to conceal the connection. @RapinBill retweeted @TEN_GOP until the end. When Twitter finally shut down @TEN_GOP last August, after having ignored numerous complaints about the Russian account, Ricky Vaughn did not take it well. He groused that @TEN_GOP had been “banned for supporting our president.” Within hours, he was steering traffic to the Kremlin’s backup account:

Another possibility is that this investigation arose out of Mueller’s investigation of Mike Flynn and Roger Stone’s focus on social media during the 2016 election. As Luke O’Brien (the reporter who first unmasked Mackey) noted in his coverage of the complaint, Mackey had ties to efforts involving Flynn and Stone in 2016.

Mackey and the three co-conspirators that HuffPost was able to identify are closely associated with a group of high-level pro-Trump political saboteurs known as “MAGA3X” that had ties to the Trump campaign and Trump’s disgraced former national security adviser Michael Flynn.

Presided over by far-right Twitter influencer Mike Cernovich, white nationalist funder Jeff Giesea, who is a disciple of billionaire Peter Thiel, and neo-Nazi collaborator Jack Posobiec, who counts Roger Stone as a mentor, MAGA3X spearheaded the Pizzagate disinformation campaign on social media that targeted Hillary Clinton in the weeks before the 2016 election.

Mueller’s team focused closely on both Flynn and Stone’s involvement in social media in 2016. In August 2016, Stone pitched both Paul Manafort and Steve Bannon on how to win ugly using social media. The overt parts of Stone’s effort involved an Erik Prince-funded effort to suppress the black vote. One of the still-sealed warrants pertains to multiple Twitter accounts that don’t appear to be Stone’s. And Mueller interviewed several people who worked with Stone on social media campaigns (and asked Andrew Miller about Alex Jones’ campaigns, as well).

The biggest reason to doubt that this investigation comes out of Mueller’s is the venue. While Mackey has ties to Brooklyn, at the time of his actions, he was living in Manhattan, SDNY rather than EDNY. The complaint seems to claim venue based on victims who reside in EDNY, bolded in the blockquote above, not Mackey’s location at the time of his actions. If Mueller had referred this, he presumably would have referred it to where the actions took place, SDNY.

It’s also possible it comes out of the Intelligence Committees’ investigations into disinformation. As Quinta Jurecic noted last night, Mackey’s ads were among those Twitter shared with the committees in 2018, though not by name. But again, the logical place to pick that up would have been SDNY or even DC.

There’s one other possibility. Last fall, in an effort to feed Trump’s conspiracy theories, Barr affirmatively mobilized voter fraud investigations. If someone had been sitting on the evidence unveiled in 2018, Barr’s action would have provided the opportunity to wrap it up into an indictment, effectively using GOP claims of voter fraud as the excuse to prosecute GOP voter fraud.

DOJ charged just one member of a conspiracy

Perhaps the most enticing part of this complaint is that it explicitly includes four other people as co-conspirators.

It describes the actions of Mackey’s co-conspirators to include:

  • Discussing how best to optimize social media campaigns
  • Retweeting Mackey’s campaigns
  • Running several DM-based strategy groups called the Madman Group, the War Room, Fed Free Hatechat
  • Fine-tuning some of the ads used
  • Posting some of the actual ads
  • Adding Mackey’s new accounts back into the DM collaborations after Twitter shut down his accounts

It’s not entirely clear how EDNY chose to treat these four as co-conspirators as distinct from other Twitter users and DM collaboration participants.

O’Brien IDs three of the four co-conspirators:

The complaintlists four co-conspirators referred to only by Twitter “user IDs,” a unique string of numbers assigned to each Twitter account. HuffPost can report that one co-conspirator is a prominent alt-right botmaster who goes by “Microchip” and was instrumental in making pro-Trump and anti-Hillary Clinton hashtags and content go viral on Twitter during the 2016 election. A fascist accelerationist who has expressed admiration for Adolf Hitler and Nazism, Microchip claims to have been involved in the early spread of the QAnon conspiracy cult and repeatedly told this reporter that his goal was to destroy the United States.

Another of Mackey’s co-conspirators is Anthime “Baked Alaska” Gionet, a pro-Trump white nationalist who was arrested on Jan. 16 for his involvement in storming the Capitol on Jan. 6. Gionet also participated in the deadly white nationalist “Unite the Right” rally in Charlottesville, Virginia, in 2017. (A New York Times story reported Wednesday afternoon that Gionet was a co-conspirator, citing a source close to the investigation, and HuffPost can confirm that reporting based on the Twitter ID cited in the complaint.)

HuffPost was able to link the Twitter IDs in the complaint to Gionet and Microchip through previously collected Twitter data, interviews and evidence left by both extremists on other websites. In direct messages with this reporter last year, Microchip also confirmed that he was using the Twitter account associated with the user ID listed in the complaint.

The user ID for a third co-conspirator belongs to a pro-Trump far-right activist who goes by “Nia” and has a long history of spreading disinformation on Twitter. HuffPost has not yet been able to identify the fourth co-conspirator.

It’s unclear whether EDNY plans to add them in an indictment or not. It’s possible they just named them as co-conspirators so as to be able to use their DMs and other Tweets to build the case against Mackey (which would make it a matter of prosecutorial efficacy). It’s also possible they’ll get added when this is indicted.

Particularly given the inclusion of Baked Alaska in here, though, it’s possible that this is an effort to crack down on key far right propagandists as part of a larger crackdown in the wake of the January 6 insurrection.

There’s just one detail that suggests this might go further: the inclusion of a PIN prosecutor in the prosecution team.

Assistant U.S. Attorneys Erik Paulsen and Nathan Reilly of the Eastern District of New York, and Trial Attorney James Mann of the Criminal Division’s Public Integrity Section are prosecuting the case.

Among the other cases James Mann is or was prosecuting are the Andy Khawaja case funneling money from the UAE to both 2016 candidates (though only the Hillary side was charged; George Nader is one of the defendants) and the Elliot Broidy case, whose pardon will close out that case.

While his inclusion by no means makes this a certainty, it raises the chances that this social media activity will either be considered in the scope of campaign donations or might even involve foreign partners.

Now We Know Why Jeffrey Rosen Has Been Silent, How About Chris Wray?

Since the attempted coup, both Jeffrey Rosen and Chris Wray (and Wray’s then-Deputy David Bowdich) were almost silent about the attack. A week after the attack, Rosen  a video in the middle of the night, explaining what he had done during the coup.

The day after, Wray released a short statement. More than a week later, he spoke at a closed-press meeting on inauguration security. Neither provided the kind of daily updates one would expect after such an attack.

Last night (as Rayne laid out here), NYT reported on why Rosen was so silent: because he’s a witness in what should be a criminal investigation into how the attack relates to the effort to overturn the election.

As the NYT lays out, in the days leading up to the coup attempt, Trump already tried to replace Rosen with someone, Jeffrey Bossert Clark, who would be willing to take steps to overturn the vote.

The effort to force Rosen to use DOJ resources to undermine a democratic election started on December 15, the day after Bill Barr resigned.

When Mr. Trump said on Dec. 14 that Attorney General William P. Barr was leaving the department, some officials thought that he might allow Mr. Rosen a short reprieve before pressing him about voter fraud. After all, Mr. Barr would be around for another week.

Instead, Mr. Trump summoned Mr. Rosen to the Oval Office the next day. He wanted the Justice Department to file legal briefs supporting his allies’ lawsuits seeking to overturn his election loss. And he urged Mr. Rosen to appoint special counsels to investigate not only unfounded accusations of widespread voter fraud, but also Dominion, the voting machines firm.

Then, over the weekend in advance of the certification, Assistant Attorney General Jeffrey Bossert Clark told Rosen Trump was going to make him Attorney General so he could chase Rudy Giuliani’s conspiracy theories.

On New Year’s Eve, the trio met to discuss Mr. Clark’s refusal to hew to the department’s conclusion that the election results were valid. Mr. Donoghue flatly told Mr. Clark that what he was doing was wrong. The next day, Mr. Clark told Mr. Rosen — who had mentored him while they worked together at the law firm Kirkland & Ellis — that he was going to discuss his strategy to the president early the next week, just before Congress was set to certify Mr. Biden’s electoral victory.

Unbeknown to the acting attorney general, Mr. Clark’s timeline moved up. He met with Mr. Trump over the weekend, then informed Mr. Rosen midday on Sunday that the president intended to replace him with Mr. Clark, who could then try to stop Congress from certifying the Electoral College results. He said that Mr. Rosen could stay on as his deputy attorney general, leaving Mr. Rosen speechless.

In a replay of the 2004 Hospital Hero moment, the others involved (including White House Counsel Pat Cipollone) agreed they’d resign en masse if Trump replaced Rosen, which led him to back off the plan.

NYT had four sources for this story, all of whom fear — even after Trump has been relegated to Florida — retaliation.

This account of the department’s final days under Mr. Trump’s leadership is based on interviews with four former Trump administration officials who asked not to be named because of fear of retaliation.

Clark claimed there were errors in this story, but ultimately he claimed Executive Privilege (his statement to WaPo on the topic, which I’ve used here, is more expansive).

In a statement that seemed to draw on language in the New York Times account, Clark said, “I categorically deny that I ‘devised a plan . . . to oust’ Jeff Rosen. . . . Nor did I formulate recommendations for action based on factual inaccuracies gleaned from the Internet.”

“My practice is to rely on sworn testimony to assess disputed factual claims,” Clark said. “There were no ‘maneuver[s].’ There was a candid discussion of options and pros and cons with the President. It is unfortunate that those who were part of a privileged legal conversation would comment in public about such internal deliberations, while also distorting any discussions. . . . Observing legal privileges, which I will adhere to even if others will not, prevent me from divulging specifics regarding the conversation.”

The WaPo version of this story names all who were involved in the confrontation with Trump (though the sources for the story are likely, in part, their aides).

At the meeting were Trump, Clark and Rosen, along with Richard Donoghue, the acting deputy attorney general; Steven A. Engel, the head of the department’s Office of Legal Counsel; and Pat Cipollone, the White House counsel, the people familiar with the matter said. The people said Rosen, Donoghue, Engel and Cipollone pushed against the idea of replacing Rosen, and warned of a mass resignation.

Clark says he will only respond to a sworn statement. By all means, the impeachment managers should demand sworn testimony, from all involved.

Of course, that would mean Pat Cipollone, who led the former President’s defense in his first impeachment trial, would be asked about the second time Trump tried to use government resources to cheat. Steve Engel, who authorized the withholding of a whistleblower complaint describing Trump’s earlier attempt, would also testify. Rosen, who participated in having DOJ chase Sidney Powell’s conspiracy theories about Mike Flynn, would be asked to testify about why the conspiracy theories about Dominion machines were any less credible than the Flynn ones. And Donoghue, who served as a filter for some of the conspiracy theories Rudy Giuliani had been fed by men who have since been named Russian agents, would be asked to testify about why Rudy wasn’t a credible source.

Rosen was silent in his final two weeks, presumably, for fear he might get fired and replaced by someone who would be more pliant to a coup attempt. But he — and the three others — are also witnesses to a larger plot that ended up in violence and death.

I wonder if Chris Wray has similar evidence he’ll be asked to share.

Bill Barr Is Resigned to Spending Time with His Family

Bill Barr was either just fired or quit, partly as a way to distract from Joe Biden’s resounding Electoral College win.

Barr wrote what may be the most insipid resignation letter in history.

Jeffrey Rosen will be Acting Attorney General. Richard Donoghue, who was swapped with Seth DuCharme in July, will be Acting Deputy Attorney General.

I’m particularly interested in what upcoming events — like a self-pardon — Barr didn’t want to have a role in.

Reggie Walton Seems Interested Revealing Some of Mueller’s Referrals

I made at least one error in this post. I surmised, based on the exemptions DOJ had claimed in a reprocessed version of the Mueller Report released last month, that there might be ongoing investigations into Rudy Giuliani’s grifters reflected in it.

But the sentencing of George Nader a week later reminded me that it cannot be the case that DOJ did a full reprocessing of the Mueller Report. Warrants made it clear that Nader’s prosecution for child porn — which developed into a prosecution for sexually abusing a boy — was a referral from the Mueller team.

Yet the reprocessed Mueller Report continues to redact all the referrals in Appendix D not previously unsealed (that is, all but the Michael Cohen and Greg Craig ones), including one that must be the Nader prosecution, under b7A redactions signaling an ongoing investigation, quite possibly this one.

The Nader referral, because it was prosecuted, should not be redacted under any exemption. Well before this reprocessing, Nader’s prosecution was public (meaning the privacy exemptions are improper), and by the time of this reprocessing, his conviction had been entered, so was no longer ongoing.

The reprocessing did change two Stone-related referrals to the same privacy exemption used for most other referrals — b(6)/b(7)(C-4) instead of b(6)/b(7)(C-3). (These are the newly reprocessed redactions; compare with pages 240-241 of the initial FOIA release.)

The change from C-3 to C-4 signifies that the person involved was only mentioned in the report, but that category is unrelated to whether or not the person remains under a separate investigation. But all referrals still use the b7(A) exemption, even though we know at least one — that of George Nader — is no longer ongoing.

That’s a very complicated way of saying that we can be certain DOJ is claiming some of these referrals are ongoing investigations even though no investigation is ongoing, whether because — like Nader — the investigation has been completed, because the investigation was properly closed, or because Billy Barr intervened and improperly closed them (as might be the case for investigations known to be targeting Erik Prince and Jared Kushner).

And that’s why some filings this week in this lawsuit are so interesting.

A month ago, Judge Reggie Walton, after having reviewed an unredacted copy of the Mueller Report, canceled a public status conference and instead scheduled an ex parte hearing on July 20 at which DOJ would have to answer his questions about the redactions.

Knowing that it would have to answer Walton’s questions, yet claiming to respond to an earlier BuzzFeed/EPIC filing, DOJ offered up that it was preparing to reissue the report in light of the completion of the Roger Stone prosecution. It released that copy — the one that claims at least one investigation that has been completed is ongoing — on June 19.

Which brings us to this week. On Monday, Judge Walton ordered the government to answer questions he raised in an Excel spreadsheet addressing the redactions.

To accord the Department knowledge of the questions that the Court has regarding some of the redactions prior to the ex parte hearing, the Court has prepared an Excel spreadsheet that catalogues these questions, which is attached as Exhibit A to this Order. 1 To the extent that the Department is able to respond to the Court’s questions in writing, it is hereby

ORDERED that, on or before July 14, 2020, at 5:00 p.m., the Department shall file2 under seal its responses to the Court’s questions by completing Column G of Exhibit A. 3

SO ORDERED this 6th day of July, 2020.

1 Exhibit A will be issued under seal and will remain under seal unless otherwise ordered by this Court.

2 The Department shall coordinate with chambers regarding the delivery of a hard copy of its submission.

3 The Court will advise the Department as to whether the Department’s written explanations obviate the need for the ex parte hearing currently scheduled for July 20, 2020.

Judge Walton gave DOJ just over a week to answer the questions.

Yesterday, DOJ asked for more time. DOJ described that they needed to consult with other entities to respond to Walton’s questions, and explained that they had not yet gotten answers from some of the “entities” they needed to hear from.

The Department has been diligently working to comply with the Court’s Order. That work has involved consultations with numerous Department components, including the Office of Information Privacy, the National Security Division, the Federal Bureau of Investigation, and U.S. Attorney’s Offices. However, the Department requires one additional week—until 5:00 PM on July 21, 2020—to coordinate and provide responses to all of the Court’s questions. This additional time is necessary because the majority of Court’s inquiries concerning the redactions require the Department to consult with various entities with equities in the information at issue, both within and outside the Department. The Department has received information from some, but not all, of the entities. Once the Department has completed its consultation with these entities, the Department needs time to compile information received from those entities into a detailed response that addresses all of the Court’s questions. Those entities then need time to review the compiled draft responses before the responses are filed under seal with the Court.2 The Department’s goal with this process is to ensure fulsome responses to the Court’s questions that would obviate the need for a hearing. [my emphasis]

This paragraph is fairly dense, but two things are worth noting. First, after describing “Department components” it would need to consult, the filing then notes that the entities with which DOJ must consult aren’t all inside the Department. This reference may be innocent. After all, any investigations into Russians or other foreigners might implicate foreign intelligence agencies, and Treasury has an ongoing sanctions process working against Oleg Deripaska, another possible referral. So those non-departmental entities could be CIA, NSA, and Treasury, among others.

Or, those non-departmental entities could be the White House.

There has already been abundant evidence that DOJ is consulting with the White House on its response to the BuzzFeed/EPIC FOIA (or at least deferring to their goals), particularly with regards to the 302 releases. Perhaps they’re doing so in the guise of honoring executive privilege claims that Trump never claimed during the investigation. But particularly if this involves hiding details about the investigation into Don Jr and/or Jared, it would be particularly abusive here.

Meanwhile, the reference to US Attorney’s Offices, plural, strongly suggests that these questions get into b7(A) redactions, because the primary reason to need to ask US Attorney’s Offices about these redactions is if they’re investigating or prosecuting cases.

We know of Mueller referrals to, at least, DC, SDNY, and EDVA. The GRU indictment was sent back to WDPA, where it started. And there were reports that investigations into Jared, Tom Barrack, and Elliot Broidy were in EDNY (though it’s unclear which of those, if any, were referrals from Mueller).

That doesn’t necessarily mean these consultations are about unknown referrals. But a footnote to the DOJ filing strongly suggests they are.

2 Although “the question in FOIA cases is typically whether an agency improperly withheld documents at the time that it processed a FOIA request,” in the interest of saving resources and promoting efficiency, if the Department determines during its review that there no longer exists a basis for a redaction, the Department plans to indicate as such in its response to the Court’s questions, withdraw the redaction, and reprocess the Report with the redaction lifted at the appropriate time. ACLU v. Dep’t of Justice, 640 F. App’x 9, 13 (D.C. Cir. 2016) (unpublished); see also Bonner v. Dep’t of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991) (“To require an agency to adjust or modify its FOIA responses based on post-response occurrences could create an endless cycle of judicially mandated reprocessing.”). The Report was originally processed in spring 2019. A basis may no longer exist for a redaction if, for example, material was redacted concerning a prosecution that had been ongoing at the time of the redaction that has now been completed. See Citizens for Responsibility & Ethics in Wash. v. Dep’t of Justice, 746 F.3d 1082, 1097 (D.C. Cir. 2014) (stating that because a “proceeding must remain pending at the time of our decision,” an agency’s “reliance on Exemption 7(A) may become outdated when the proceeding at issue comes to a close”).[my emphasis]

DOJ directly addresses b7(A) redactions, claiming that if the investigation was ongoing when it originally did the FOIA review, it is not in violation of FOIA if it hasn’t since released the information (the filing is silent on the reprocessing done last month).

Mind you, DOJ will argue that all of these redactions are still proper under privacy protections. But on that point, DOJ (and Billy Barr personally) has outright lied publicly, claiming that these redactions only protect tangential third parties and not people like the President’s son or son-in-law.

Having looked at Walton’s questions, DOJ directly addressed redactions that originally protected ongoing investigations and contacted more than one US Attorney’s Office for consultations. That says he may consider ordering DOJ to release information about investigations that were started but did not end in prosecution.

Which makes the delay more interesting. It may be totally innocent, the slow pace of bureaucracy, particularly as offices still recover from COVID shut-downs. But one US Attorney’s Office of interest has undergone a sudden change of leadership between the time Judge Walton asked for this information and the time DOJ will respond. Last night, Billy Barr swapped EDNY US Attorney Richard Donoghue with PDAAG Seth DuCharme. While Barr has shown trust in both (he put Donoghue in charge of reviewing Ukraine related allegations), DuCharme has been one of the people who has orchestrated his efforts to undermine the Russian investigation. Whatever answers DOJ provides to Walton, then, will be answers that Barr’s newly appointed flunky will oversee. That’s by no means the most suspicious part of DuCharme’s appointment, but it is something DuCharme will review in his first week on the job.

DOJ may successfully argue that all of this should remain redacted for privacy reasons. And, with the possible exception of an Erik Prince referral, if they’re disclosed as closed investigations, it would not necessarily indicate whether they were closed through more Barr interference. But it certainly suggests Walton may be thinking that some of this should be public.

DOJ’s Ukraine Fire Sale: The Jerry Nadler Questions Bill Barr Didn’t Answer

Yesterday, Natasha Bertrand posted a January 17, 2020 memo issued by Deputy Attorney General Jeffrey Rosen, which was cited in a response DOJ sent to a letter Jerry Nadler sent on February 10. In it, Assistant Attorney General for Legislative Affairs Stephen Boyd explained that — in addition to asking Scott Brady to manage intake of any disinformation Rudy Giuliani provides DOJ, Rosen “assigned Richard Donoghue, the U.S. Attorney for the Eastern District of New York, to assist in coordinating … several open matters being handled by different U.S. Attorney’s Offices and Department components that in some way potentially relate to Ukraine.”

Add Donoghue to the list of US Attorneys that Attorney General Barr has deployed in his effort to politicize the Department.

Because the Donoghue Ukraine news (and the suggestion that Donoghue may be overseeing an investigation into the Bidens) got so much attention, there has been little attention to the questions Nadler originally asked, most of which Boyd did not answer.

But those questions are perhaps more telling.

For starters, Bill Barr did not answer whether he intends to recuse himself from the Ukrainian grifter case.

In light of the allegations by Mr. Parnas against the Department and you personally, do you intend to recuse yourself from any and all communications relating to Ukraine? Have you done so already?

In addition, Barr did not answer several questions about communications between DOJ, Rudy, and the White House:

(8) Please state the dates of any communications between the Department and Mr. Giuliani regarding information relating to Ukraine or investigations of the Bidens. Please state who else, if anyone, participated in those communications.

(9) Has the Department shared any information it has received from Mr. Giuliani with President Trump or any other White House official? If so, please state the dates of any such communications, the participants in any such communications, and the nature of the information conveyed to the White House.

(10) Have you discussed the intake process with President Trump or any other White House official? If so, please state the dates of any such communications, the participants in any such communications, and the nature of the discussion.

The only answer Boyd gives to any of these questions effectively repeats DOJ’s September 25, 2019 press answer.

Finally, your letter poses questions regarding a September 25, 2019 press statement by the Department. That statement remains accurate. As Attorney General Barr has repeatedly affirmed, he has not discussed matters relating to Ukraine with Rudolph Giuliani.

In short, Bill Barr refused to answer a specific question about whether he should recuse from an investigation into which he has been personally implicated. And DOJ refused to explain precisely what kind of communications there have been between Rudy, DOJ, and the White House.