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Bill Barr’s Attempt to Corrupt EDNY May Have Saved the Republic

Almost all of the witnesses the January 6 Committee has relied on are deeply conflicted people. The same Trump attorney, Justin Clark, who allegedly coached Steve Bannon to withhold information from the Committee about communications with Rudy Giuliani and Mike Flynn appeared on video claiming to have qualms about using fake electors in states where the campaign did not have an active legal challenge. Ivanka claimed to believe Bill Barr’s claims that voter fraud couldn’t change the election, but the Committee just obtained video of her saying otherwise. And Bill Barr himself has gotten credit for fighting Trump’s false claims of voter fraud even though he spent months laying the groundwork for those claims by attacking mail-in ballots.

But yesterday’s hearing was something else.

After Liz Cheney invited watchers to imagine what it would be like to have a DOJ that required loyalty oaths from lawyers who work there — a policy that Alberto Gonzales had started to implement in the Bush-Cheney Administration — Adam Kinzinger led former Acting Deputy Attorney General Richard Donoghue through a narrative about the Republican Party and the Department of Justice they might like to belong to.

The whole thing was a flashback. In May 2007, I was tipped off to cover Jim Comey’s dramatic retelling of the first DOJ effort to push back on Presidential — and Vice Presidential, from Liz Cheney’s father — pressure by threatening to quit. Only years later, I learned how little the 2004 Hospital Hero stand-off really achieved. So I’m skeptical of yesterday’s tales of heroism from the likes of Jeff Rosen and Steve Engel.

But that’s also because their record conflicts with some of the things they said.

For example, check out what Engel — someone who played an absolutely central role in Bill Barr’s corruption of the Mueller investigation, and who wrote memos that killed the hush payment investigation into Trump and attempted to kill the whistleblower complaint about Volodymyr Zelenskyy — had to say about politicization of investigations.

Kinzinger: Mr. Engel, from your perspective, why is it important to have a [White House contact] policy like Mr. Rosen just discussed?

Engel: Well, it’s critical that the Department of Justice conducts its criminal investigations free from either the reality or any appearance of political interference. And so, people can get in trouble if people at the White House are speaking with people at the Department and that’s why, the purpose of these policies, is to keep these communications as infrequent and at the highest levels as possible just to make sure that people who are less careful about it, who don’t really understand these implications, such as Mr. Clark, don’t run afoul of those contact policies.

Or consider how Special Counsels were described, as Kinzinger got the witnesses to discuss how wildly inappropriate it would have been to appoint Sidney Powell to investigate vote fraud. Here’s how Engel explained the limited times there’d be a basis to appoint one:

Kinzinger: So during your time at the Department, was there ever any basis to appoint a Special Counsel to investigate President Trump’s election fraud claims?

Engel: Well, Attorney General Barr and [inaudible] Jeffrey Rosen did appoint a Special Counsel. You would appoint a Special Counsel when the Department — when there’s a basis for an investigation, and the Department, essentially, has a conflict of interest.

Engel is presumably referring to John Durham with that initial comment. But Durham fails both of those tests: there was never a basis for an investigation, and for most of the time Durham has been Special Counsel, he’s been investigating people outside the Department that present absolutely no conflict for the Department. [Note: it’s not clear I transcribed this properly. The point remains: Rosen and Barr appointed a Special Counsel that violated this standard.]

In other words, so much of what Engel and Rosen were describing were abuses they themselves were all too happy to engage in, up until the post-election period.

Which is why I’m so interested in the role of Richard Donoghue, who moved from EDNY to Main Justice in July 2020, to be replaced by trusted Bill Barr flunkie Seth DuCharme. It happened at a time when prosecutors were prepared to indict Tom Barrack, charges that didn’t end up getting filed until a year later, after Merrick Garland and Lisa Monaco had been confirmed. The 2020 move by Barr looked just like other efforts — with Jessie Liu in DC and Geoffrey Berman in SDNY — to kill investigations by replacing the US Attorney.

That is, by all appearances, Donoghue was only the one involved in all these events in 2020 and 2021 because Barr was politicizing prosecutions, precisely what Engel claimed that DOJ, during his tenure, attempted to avoid.

That’s interesting for several reasons. First, in the context of explaining the January 3 stand-off in the White House, Donoghue described why environmental lawyer Jeffrey Clark was unqualified to be Attorney General.

Donoghue: Mr. President, you’re talking about putting a man in that seat who has never tried a criminal case. Who has never conducted a criminal investigation.

Well, neither had regulatory lawyer Jeffrey Rosen (or, for that matter, Billy Barr). That is, in explaining why Clark should not be Attorney General,  Donoghue expressed what many lawyers have likewise said about Barr, most notably during Barr’s efforts to undermine the Mike Flynn prosecution (the tail end of which Donoghue would have been part of, though DuCharme was likely a far more central player in that).

In the collective description of the showdown at the White House on January 3, it sounds like before that point, Donoghue was the first one who succeeded in beginning to talk Trump out of replacing Rosen, because it was not in Trump’s, or the country’s, interest.

Mr. President, you have a great deal to lose. And I began to explain to him what he had to lose. And what the country had to lose, and what the Department had to lose. And this was not in anyone’s best interest. That conversation went on for some time.

Donoghue also seems to have been the one to explain the impact of resignations in response to a Clark appointment.

Mr. President within 24, 48, 72 hours, you could have hundreds and hundreds of resignations of the leadership of your entire Justice Department because of your actions. What’s that going to say about you?

To be clear: Rosen would have pushed back in any case. As he described,

On the one hand, I wasn’t going to accept being fired by my subordinate, so I wanted to talk to the President directly. With regard to the reason for that, I wanted to try to convince the President not to go down the wrong path that Mr. Clark seemed to be advocating. And it wasn’t about me. There was only 17 days left in the Administration at that point. I would have been perfectly content to have either of the gentlemen on my left or right to replace me if anybody wanted to do that. But I did not want for the Department of Justice to be put in a posture where it would be doing things that were not consistent with the truth, were not consistent with its own appropriate role, or were not consistent with the Constitution.

But Rosen had already presided over capitulations to Trump in the past, including events relating to the first impeachment and setting up a system whereby Rudy Giuliani could introduce Russian-brokered disinformation targeting Joe Biden into DOJ, without exposing Rudy himself to Russian Agent charges. Repeatedly in yesterday’s hearing, I kept asking whether the outcome would have been the same if Donoghue hadn’t been there.

Plus, by all appearances, Donoghue was the one providing critical leadership in the period, including going to the Capitol to ensure it was secured.

Kinzinger: Mr. Donoghue, we know from Mr. Rosen that you helped to reconvene the Joint Session, is that correct?

Donoghue: Yes sir.

Kinzinger: We see here in a video that we’re going to play now you arriving with your security detail, to help secure the Capitol. Mr. Donoghue, thirty minutes after you arrived at the Capitol, did you lead a briefing for the Vice President?

Donoghue: I’m not sure exactly what the time frame was, but I did participate in a call and participate in a briefing with the Vice President as well as the Congressional leadership that night. Yes.

Kinzinger: Where’d you conduct that call at?

Donoghue: I was in an office, I’m not entirely sure where it was. My detail found it, because of the acoustics in the Rotunda were such that it wasn’t really conductive to having a call so they found an office, we went to that office, and I believe I participated in two phone calls, one at 1800 and one at 1900 that night, from that office.

Kinzinger: What time did you actually end up leaving the Capitol?

Donoghue: I waited until the Senate was back in session which I believe they were gaveled in a few minutes after 8PM. And once they were back in session and we were confident that the entire facility was secured and cleared — that there were no individuals hiding in closets, or under desks, that there were no IEDs or other suspicious devices left behind — I left minutes later. I was probably gone by 8:30.

Kinzinger: And Mr. Donoghue, did you ever hear from President Trump that day?

Donoghue: No. Like the AAG, the acting AG, I spoke to Pat Cipollone and Mark Meadows and the Vice President and the Congressional leadership but I never spoke to the President that day.

So it seems possible, certainly, that one of the few things that held DOJ together in this period is Donoghue, seemingly installed there as part of yet another Bill Barr plot to corrupt DOJ.

Congresswoman Cheney, who in her opening statement talked about how outrageous it was for Trump to demand that DOJ make an announcement about an investigation into voter fraud (but who voted against the first impeachment for extorting Volodymyr Zelenskyy for exactly such an announcement), ended the hearing by inviting those who had put their trust into Donald Trump to understand that he had abused that trust.

House January 6 Committee: Public Hearings – Day 5

This post and comment thread are dedicated to the House January 6 Committee hearings scheduled to begin Thursday June 23, 2022 at 3:00 p.m. ET.

Please take all comments unrelated to the hearings to a different thread.

The hearings will stream on:

House J6 Committee’s website: https://january6th.house.gov/news/watch-live

House J6 Committee’s YouTube page: TBD

C-SPAN’s House J6 hearing page: https://www.c-span.org/video/?521076-1/hearing-investigation-capitol-attack

C-SPAN’s YouTube page: https://youtu.be/9Vj7FJwF35M

Check PBS for your local affiliate’s stream: https://www.pbs.org/ (see upper right corner) or watch here: https://www.pbs.org/newshour/politics/how-to-watch-the-jan-6-hearings

(I wish Twitter was carrying multiple live streams but they have yet to publish an Event. I guess Twitter has decided this historic series of hearings isn’t worth their time.

4:00 p.m. — Oh, look, Twitter finally got their shit together and just in time for recess. https://twitter.com/i/events/1540059136305397760)

ABC is carrying the hearing live on broadcast; CNN, NBC Now and MSNBC on their cable networks.

(CBS has likewise thrown in the towel like Twitter as I don’t see the hearing listed under their channel.)

Twitter accounts live tweeting the hearing tonight:

Marcy’s Twitter thread: https://twitter.com/emptywheel/status/1540049823365218306

Brandi Buchman-DailyKos: https://twitter.com/Brandi_Buchman/status/1540046031462842369

Laura Rozen: https://twitter.com/lrozen/status/1540047956811960328

Scott MacFarlane-CBS: https://twitter.com/MacFarlaneNews/status/1540055344973504515

If you know of any other credible source tweeting the coverage, please share a link in comments.

Today’s scheduled witnesses:

Jeffrey A. Rosen, Former Acting Attorney General

Richard Donoghue, Former Acting Deputy Attorney General

Steven Engel, Former Assistant Attorney General for the Office of Legal Counsel

There may be more not yet shared by the committee in their Twitter feed since the hearings to date have had two panels.

~ ~ ~

Any updates will appear at the bottom of this post; please bear with any content burps as this page may be edited as the hearing progresses.

Again, this post is dedicated to the House January 6 Committee  and topics addressed in testimony and evidence produced during the hearing.

All other discussion should be in threads under the appropriate post with open discussion under the most recent Trash Talk.

To new readers and commenters: welcome to emptywheel. New commenters, please use a unique name to differentiate yourself; use the same username each time you comment.

Comment policy

Community guidelines

If you are leaving a comment, please be concise; 100 words is the optimum length.

If you are sharing active links your comment may be delayed by auto-moderation.

If contributors and moderators seem slow, it’s because they’re dealing with higher than usual volume of comments including trolling.

Caution: moderators will have much lower tolerance for trolling.

~ ~ ~

 

House January 6 Committee: Public Hearings – Day 1 [UPDATE-1]

[NB: Any updates will be published at the bottom of this post. /~Rayne]

This post and comment thread are dedicated to the House January 6 Committee hearings scheduled to begin Thursday June 9, 2022, at 8:00 p.m. ET.

Please take all comments unrelated to the hearings to a different thread.

The hearings will stream on:

House J6 Committee’s website: https://january6th.house.gov/news/watch-live

House J6 Committee’s YouTube page: https://www.youtube.com/watch?v=hZ0yNe3cFx4

C-SPAN’s House J6 hearing page: https://www.c-span.org/video/?520282-1/open-testimony-january-6-committee

C-SPAN’s YouTube page: https://www.youtube.com/c/C-SPAN/featured

Check PBS for your local affiliate’s stream: https://www.pbs.org/ (see upper right corner)

Twitter is carrying multiple live streams (NBC, PBS, Washington Post, Reuters, CSPAN, Bloomberg): https://twitter.com/i/events/1533876297926991877

MSNBC will carry coverage on their cable network with coverage beginning at 7:00 p.m. ET as well as on MSNBC’s Maddow Show podcast feed. Details at this link.

ABC, NBC, CBS will carry the hearings live on broadcast and CNN will carry on its cable network.

Fox News is not carrying this on their main network. Their weeknight programming including Tucker Carlson’s screed will continue as usual and will likely carry counterprogramming.

Twitter accounts live tweeting the hearing tonight:

Brandi Buchman-DailyKos: https://twitter.com/Brandi_Buchman/status/1535034512639512576

Scott MacFarlane-CBS: https://twitter.com/MacFarlaneNews/status/1535050143879266306

Chris Geidner-Grid News: https://twitter.com/chrisgeidner/status/1535052708922937345

JustSecurity’s team live tweeting: https://twitter.com/just_security/status/1534955708881457154

If you know of any other credible source tweeting the coverage, please share a link in comments.

Marcy will not be live tweeting as the hearing begins 2:00 a.m. IST/1:00 a.m. UTC/GMT. She’ll have a post Friday morning Eastern Time. Do make sure to read her hearing prep post, though.

An agenda for this evening’s hearing has not been published on the committee’s website.

~ ~ ~

Any updates will appear at the bottom of this post; please bear with any content burps as this page may be edited as the evening progresses.

Again, this post is dedicated to the House January 6 Committee  and topics addressed in testimony and evidence produced during the hearing.

All other discussion should be in threads under the appropriate post with open discussion under the most recent Trash Talk.

To new readers and commenters: welcome to emptywheel. New commenters, please use a unique name to differentiate yourself; use the same username each time you comment.

Comment policy

Community guidelines

If you are leaving a comment, please be concise; 100 words is the optimum length.

If you are sharing active links your comment may be delayed by auto-moderation.

If contributors and moderators seem slow, it’s because they’re dealing with higher than usual volume of comments including trolling.

Caution: moderators will have much lower tolerance for trolling.

~ ~ ~

UPDATE-1 — 7:30 P.M. ET 10-JUN-2022 —

According to Scott MacFarlane-CBS there will be a total of six House J6 Committee hearings this month.

House J6 Committee hearing schedule (as of eve 6/10/2022):

Monday June 13 — Hearing: On the January 6th Investigation
10:00 AM | 390 Canon HOB
Host: Select Committee to Investigate the January 6th Attack

Wednesday June 15 — Hearing: On the January 6th Investigation
10:00 AM | 390 Canon HOB
Host: Select Committee to Investigate the January 6th Attack

Thursday June 16 — Hearing: On the January 6th Investigation
1:00 PM | 390 Canon HOB
Host: Select Committee to Investigate the January 6th Attack

Tuesday June 21 — Hearing: On the January 6th Investigation
**10:00 AM ET | Date-Time-Place Subject to Confirmation**
Host: Select Committee to Investigate the January 6th Attack

Thursday June 23 — Hearing: On the January 6th Investigation
**8:00 PM ET | Date-Time-Place Subject to Confirmation**
Host: Select Committee to Investigate the January 6th Attack

Date, time, and location of the next three hearings have been published on the U.S. House of Representatives’ calendar. The last two have not yet been confirmed and published.

Bill Barr’s Legal Exposure May Lead Him to Lie about the Hunter Biden Laptop

In case you missed it on Twitter, I am currently reading the former Attorney General’s fictional autobiography, which is predictably awful. I’ll write it up at more length in the days ahead.

The most newsworthy detail — by far! — in the parts I’ve read thus far is this admission describing how he “had” to open the Durham investigation, not because there was a suspected crime, but because Barr believes Trump’s “adversaries” pushed it to hobble his Administration.

I saw the way the President’s adversaries had enmeshed the Department of Justice in this phony scandal and were using it to hobble his administration. Once in office, it occupied much of my time for the first six months of my tenure. It was at the heart of my most controversial decisions. Even after dealing with the Mueller report, I still had to launch US Attorney John Durham’s investigation into the genesis of this bogus scandal.

[snip]

I always suspected that the preelection peddling of Steele’s dossier and other similar collusion claims comprised an attempt to carry out a classic campaign dirty trick: first, develop scurrilous allegations about one’s opponent, then get them into the hands of an investigative authority, and, finally, leak the “fact” that the allegations are being investigated. This way, unverified allegations are publicized and given instant credibility on the theory that authorities thought them worthy enough to investigate. News organizations can justify publishing dubious allegations by claiming they are really just reporting the facts of a pending investigation. Before Election Day, the Clinton campaign had a good motive for instigating the collusion narrative: besides hurting Trump, it diverted attention from her own e-mail server scandal, which seemingly came to a head in early July when FBI director Comey held a news conference sharply criticizing Clinton for her mishandling of classified e-mails. [my emphasis]

Over and over, Billy situates in advance — sometimes even before he returned to government — his belief in conspiracy theories that John Durham is currently chasing. The book goes a long way to substantiating that Durham is and always was using a criminal investigation to tell a story developed before either Barr or Durham had looked at any evidence.

This entire three year investigation was started because Billy Barr wanted to get revenge, not because he wanted to investigate a crime.

That’s important background for a recent appearance Barr made to claim that the decision by social media companies not to allow the NY Post story on an unverified laptop go viral swung the election.

So when former staffer Larry Kudlow on Thursday interviewed former attorney general William P. Barr for his Fox Business show, the conversation operated from shared assumptions about Trump’s successes and the toxicity of the political left. The result was that Barr outlined a remarkable hierarchy of importance for actions that might have affected the results of a presidential contest.

Russian interference in 2016, he said, was just “some embarrassing emails about Hillary Clinton and Bernie.” The effort to “suppress” information about Hunter Biden’s laptop, meanwhile, was “probably even more outrageous” and “had much more effect on an election.”

Philip Bump lays out all the evidence that Barr’s claim the media ignored the story is false and links to a contemporaneous analysis of the uncertainties about the laptop — though not this recent, overlooked WaPo article that revealed “the data contained on the drive [that purportedly comes from Hunter Biden’s laptop] was so compromised by a variety of factors that definitive conclusions about most of its contents were impossible.”

Bump is wrong, in my opinion, to treat this recent Hunter laptop surge as a mere political conversation on the right. It’s not. It is part of a plan to undermine the investigation — and likely, by then, prosecution — of Rudy Giuliani’s efforts to obtain dirt that is believed to closely if not exactly resemble what he ended up releasing under the guise of a discovered abandoned Hunter Biden laptop. If Republicans win the House, Jim Jordan will dedicate the resources of the House Judiciary Committee full time to investigating this “story,” and will use it to sabotage whatever legal proceedings are working against Rudy at that point.

And that’s why it’s important that a once respected lawyer is going on TV endorsing conspiracy theories.

After all, Barr is legally implicated himself.

As I said, I’ll write far more about the lies Barr told in his narrative. But one key detail is his explanation for appointing Richard Donoghue as a gate-keeper over any Ukraine investigations.

In January, as the impeachment process headed toward conclusion, Deputy Attorney General Rosen issued a memo to all US attorneys’ offices designating Richard Donoghue, the US attorney in the Eastern District of New York, to coordinate Ukraine-related cases. This was done not just for efficiency but also to protect the department from manipulation by foreign interests. As we headed into an election year, we had good reason to worry that Ukraine—a hotbed of political intrigue and conspiracy theories—posed a special concern. It was a channel through which all sides could inject disinformation into our system. This could be done by feeding spurious “evidence” of supposed criminality to US law enforcement authorities. This vulnerability was compounded in a Justice Department in which any one of ninety-three US attorneys’ offices around the country can initiate an investigation based on information it receives. In addition to ensuring information sharing and avoiding conflicts, we wanted to ensure that Ukrainian actors couldn’t instigate cases willy-nilly in different jurisdictions around the country. For this reason, we selected one office to take the lead and also serve as a “traffic cop,” coordinating existing and any new cases. Rich Donoghue was chosen for this role because he already had related matters pending in his Brooklyn office and was one of the most experienced and respected US attorneys in the department.

This is not entirely a lie. It is true that Jeffrey Rosen wrote a memo giving Donoghue veto authority over any investigations pertaining to Ukraine. But the move had the exact opposite effect of what Barr claimed in his narrative.

It had the effect of ensuring that Rudy could continue to chase disinformation from a known Russian agent, Andrii Derkach, to use in the election with no legal consequences.

On November 4, 2019, SDNY executed searches — searches that Main Justice would have had to be informed about — on Rudy and Victoria Toensing’s cloud accounts. In subsequent months, SDNY would execute searches on Yuri Lutsenko and several other Ukrainians, but not Andrii Derkach, not even after Rudy flew to Ukraine to meet with Derkach personally on December 5, 2019.

In the wake of those searches, on January 17, 2020, Jeffrey Rosen issued a memo putting his trusted deputy, Richard Donoghue, in charge of all Ukraine-related investigations.

As has been publicly reported, there currently are several distinct open investigations being handled by different U.S. Attorney’s Offices and/or Department components that in some way potentially relate to Ukraine. In addition, new information potentially relating to Ukraine may be brought to the attention of the Department going forward. The Department has assigned Richard Donoghue, the U.S. Attorney in the Eastern District of New York (EDNY), who currently is handling certain Ukraine-related matters, to coordinate existing matters and to assess, investigate, and address any other matters relating to Ukraine, including the opening of any new investigations or the expansion of existing ones.

[snip]

Any and all new matters relating to Ukraine shall be directed exclusively to EDNY for investigation and appropriate handling.

[snip]

Any widening or expansion of existing matters shall require prior consultation with and approval by my office and EDNY.

Now that we know about the Rudy search in November 2019, the effect of this memo is clear: it limited the SDNY investigation to the scope of the investigation as it existed at that time, into the Lutsenko attempt to fire Yovanovitch (which was included in the original Parnas indictment), but not Rudy’s meeting with a Russian agent to help Trump win re-election.

Instead, EDNY presided over all the Ukraine goings-on during the election, during which time they could have done something about ongoing tampering. Indeed, after Geoffrey Berman succeeded in ensuring that Audrey Strauss would replace him after Barr fired him to try to shut down ongoing investigations (including, undoubtedly, the one into Rudy and Barr’s friend Victoria Toensing), Barr and Rosen replaced Donoghue with another trusted flunky, Seth DuCharme. Under DuCharme, then, EDNY sat and watched while Derkach interfered in the election and did nothing until — per yesterday’s NYT story — “the final months of the Trump administration.” According to the public timeline, it appears that they just let a known Russian agent play around in our democracy.

This step didn’t protect American democracy from Russian tampering. It protected the Russian tampering.

And now Barr is out there claiming that an effort by social media companies to protect democracy was the real crime.

The Green Bay Sweep Is Inextricably Tied to the Violent Mob

Between yesterday’s hearing in the January 6 lawsuits — where Judge Amit Mehta noted that,”The conspiracy to sow distrust in the election is not illegal, no[] matter what we think about conduct,” — and something I’m working on, I’ve been thinking about all the stuff that happened between November and January, which the Select Committee is working aggressively on.

I’ve said that I believe the phone call to Brad Raffensperger is illegal on its own right. The Fulton County DA says she’s getting closer to a charging decision on it, and whatever she decides she can likely share her findings with DOJ. Politico reported on some of the other damning information that the Select Committee has received, including other calls to pressure Georgia officials.

I’ve laid out how Trump’s pressure on Mike Pence is already a key focus of both investigations (which the NYT wrote about yesterday).

But as to the rest of it, thus far, the vast majority of what has been made public is — as Judge Mehta qualified it — a legal conspiracy to undermine trust in elections. As I noted, the reason why Peter Navarro’s confessions aren’t enough to charge him with sedition is because as confessed, the coordinated effort to get Republicans to raise bad faith challenges to the vote certification is not illegal.

But there are two ways to think about these events leading up to the mob. The first, which I’ll lay out in more depth later, is as proof of mens rea. When Trump called up Raffensperger and asked for the precise number of votes he needed to win, it was a (recorded) admission that he knew he had lost the state.

To the extent DOJ and the Select Committee can substantiate that Trump knew the request was illegal, Trump’s sustained demands that Pence reject the legal vote count is also proof of kind of corrupt purpose that would be necessary to charge him with obstruction (as DOJ’s expert on this approach himself said fairly explicitly).

I’d like to go back to what I believe to be the third most compelling proof of corrupt mens rea. As I noted, when — in the wake of state certifications — Trump told Richard Donoghue to just say the election was corrupt and “leave the rest to me and the Republican Congressmen,” he effectively admitted he was asking DOJ to claim there were problems with the election when they were telling him there weren’t.

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.”

At the time I wrote that post in August, I believed it proved the mens rea that DOJ would need to show Trump was acting with corrupt intent.

But I look at it differently given Peter Navarro’s cover story about the subsequent effort. Navarro claims that he and Steve Bannon rolled out an (entirely legal) effort to provide members of Congress with enough election disinformation to sustain 24 hours of debate.

“The Green Bay Sweep was very well thought out. It was designed to get us 24 hours of televised hearings,” he said. “But we thought that we could bypass the corporate media by getting this stuff televised.”

Navarro’s part in this ploy was to provide the raw materials, he said in an interview on Thursday. That came in the form of a three-part White House report he put together during his final weeks in the Trump administration with volume titles like, “The Immaculate Deception” and “The Art of the Steal.”

“My role was to provide the receipts for the 100 congressmen or so who would make their cases… who could rely in part on the body of evidence I’d collected,” he told The Daily Beast. “To lay the legal predicate for the actions to be taken.” (Ultimately, states have not found any evidence of electoral fraud above the norm, which is exceedingly small.)

The next phase of the plan was up to Bannon, Navarro describes in his memoir, In Trump Time.

“Steve Bannon’s role was to figure out how to use this information—what he called ‘receipts’—to overturn the election result. That’s how Steve had come up with the Green Bay Sweep idea,” he wrote.

“The political and legal beauty of the strategy was this: by law, both the House of Representatives and the Senate must spend up to two hours of debate per state on each requested challenge. For the six battleground states, that would add up to as much as twenty-four hours of nationally televised hearings across the two chambers of Congress.”

The plan, as laid out in Navarro’s cover story, is entirely legal so long as you believe two key claims he makes: that he doesn’t know when this effort started and doesn’t remember Trump being personally involved.

Although Navarro told The Daily Beast he doesn’t remember when “Brother Bannon” came up with the plan, he said it started taking shape as Trump’s “Stop the Steal” legal challenges to election results in Arizona, Georgia, Pennsylvania, and Wisconsin fizzled out. Courts wouldn’t side with Trump, thanks to what Navarro describes in his book as “the highly counterproductive antics” of Sydney Powell and her Kraken lawsuits. So instead, they came up with a never-before-seen scheme through the legislative branch.

Navarro starts off his book’s chapter about the strategy by mentioning how “Stephen K. Bannon, myself, and President Donald John Trump” were “the last three people on God’s good Earth who want to see violence erupt on Capitol Hill,” as it would disrupt their plans.

When asked if Trump himself was involved in the strategy, Navarro said, “I never spoke directly to him about it. But he was certainly on board with the strategy. Just listen to his speech that day. He’d been briefed on the law, and how Mike [Pence] had the authority to it.”

“Leave the rest to me and the R[epublican] Congressmen.” Navarro (claims he) doesn’t remember when this plan started.

But Trump already told DOJ (the people conducting this investigation, the ones that got a privilege waiver for this material back in the summer) when it started, all the way back in 2020. By December 27, he had a plan that required DOJ to claim fraud, so that Trump and Republican Congressmen could implement what would ultimately be called the Green Bay Sweep.

But even before he had done that, on December 19, he sent out the Tweet that insurrectionists great and small took as their cue to start planning to attend a riot.

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

DOJ has had, since before January 6, the proof that these two efforts worked in conjunction.

And that’s what changes the (as Judge Mehta described it) legal conspiracy to sow distrust in the election into an illegal conspiracy, with demonstrated mens rea of corrupt intent, to obstruct the vote count.

This is why DOJ has been pursuing a conspiracy to obstruct the vote count and not incitement. Because only the former can reach to those who helped Trump commit his crime.

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.